Malicious Prosecution–Against Opposing Counsel–in California

In Daniels v. Robbins, the California Court of Appeals addressed a claim of malicious prosecution against opposing counsel.  Malicious prosecution requires three elements of proof:

1. A lawsuit was filed by or at the direction of the defendant, and was pursued to a legal termination in plaintiff’s favor;
2. The prior lawsuit was brought without probable cause; and
3. The prior lawsuit was initiated with malice.

As an initial matter the Fourth District Court of Appeals, Division 3, explained:

Malicious prosecution is a disfavored action. “This is due to the principles that favor open access to the courts for the redress of grievances.” (Downey Venture v. LMI Ins. Co.) “[T]he elements of the [malicious prosecution] tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim.” (Sheldon Appel Co. v. Albert & Oliker).

The present case arose from a defamation lawsuit filed by a Mr. Young against Ms. Daniels. The defamation lawsuit was terminated when discovery sanctions were ordered against Mr. Young. The present case followed: Ms. Daniels sued the attorneys for Mr. Young alleging the attorneys had brought the underlying case against her without probable cause, and with malice.

Mr. Young’s attorneys countered with a motion to strike under California’s anti-SLAPP statute, arguing that Ms. Robbins could not prove malicious prosecution against them as a matter of law. The Superior Court granted the anti-SLAPP motion, dismissing Ms. Robbins claims against the opposing attorneys. In affirming the anti-SLAPP dismissal order, the Court of Appeals traversed the three elements of a malicious prosecution claim:

Termination in Plaintiff’s Favor

Termination of a lawsuit is ordinarily a straightforward matter—but what happens if the case is terminated as result of discovery sanctions?  This occurred in the present case.

It is clear that, at least in some circumstances, the dismissal of an underlying action as a result of discovery sanctions will satisfy the favorable termination element of a malicious prosecution claim. Favorable termination rulings (in California and elsewhere) have arisen from:

• Failure to appear for deposition
• Failure to answer interrogatories
• Failure to appear at final hearing
• Voluntary dismissal
• Dismissal for failure to prosecute
• Final judgment after trial

The underlying case brought by Mr. Young against Ms. Daniels was dismissed for failure to produce documents. Finding a prima facie case against Mr. Young’s attorneys for this discovery failure, the court explained:

[W]here the record from the underlying action is devoid of any attempt during discovery to substantiate allegations in the complaint, and the court’s dismissal is justified by plaintiff’s lack of evidence to submit the case to a jury at trial, a prima facie showing of facts sufficient to satisfy the “favorable termination” element of a malicious prosecution claim is established for purposes of an anti-SLAPP motion.

Without Probable Cause

Probable cause is lacking “when a prospective plaintiff and counsel do not have evidence sufficient to uphold a favorable judgment or information affording an inference that such evidence can be obtained for trial.”

In general, a lawyer is entitled to rely on information provided by the client. But if the lawyer discovers the client’s statements are false, the lawyer cannot rely on such statements in prosecuting an action. A letter from a litigation adversary merely suggesting it disagrees with the verity of the allegations in the lawsuit is not sufficient to put the lawyer on notice of the falsity of the client’s allegations.

With Malice

The “malice‟ element relates to the subjective intent or purpose with which the defendant acted in initiating the prior action.

The plaintiff must plead and prove actual ill will or some improper ulterior motive. Improper purposes can be established where, for instance:

• the person bringing the suit does not believe that the claim may be held valid;
• the proceeding is initiated primarily because of hostility or ill will;
• the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of property; or
• the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim.

If the prior action was not objectively tenable, the extent of an attorney’s investigation and research may be relevant to the further question of whether or not the attorney acted with malice. However, evidence of an attorney’s possible negligence in conducting factual research is not enough on its own to show malice. The Court explained: “only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit.”

In the instant case, finding nothing more than the possibility of negligence in conducting its factual research, there was no possibility of showing malice against the attorneys.

Prevailing counsel in the present case was Filomena E. Meyer.

The Fourth District Court panel included: Justice Raymond J. Ikola, Presiding Justice David G. Sills and Justice Richard D. Fybel.

The Orange County Superior Court judge was Judge Andrew P. Banks.