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Drummond v. Desmarais

August 5, 2009; as modified August 18, 2009


(Santa Clara County Super. Ct. No. CV068316). Trial Judge: The Honorable Neal A. Cabrinha.

The opinion of the court was delivered by: Rushing, P.J.


Plaintiffs George Drummond, Rebecca Drummond, and Jesse Marion brought this action against their former attorney, Michael Desmarais, and others, alleging that Desmarais maliciously prosecuted two previous suits against plaintiffs, one seeking to recover fees claimed under a contract to provide legal services to plaintiffs in connection with the estate of their deceased father, and the other alleging that plaintiffs had maliciously sued Desmarais when they objected to a petition seeking to pay his fees out of their father‟s estate. Defendants moved to strike the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (§ 425.16), arguing that plaintiffs would be unable to show that either of the predicate lawsuits was filed without probable cause or was terminated favorably on the merits. The trial court granted the motion and entered a judgment of dismissal. Plaintiffs appeal, charging the trial court with innumerable errors. We conclude that since Demarais‟s suit for fees has been finally resolved in his favor, plaintiffs‟ claims predicated on that action must fail. We also conclude that while the evidence before the trial court would amply sustain findings that Desmarais acted maliciously and without probable cause in suing his clients for malicious prosecution based on their objections to his fees, his voluntary dismissal of that suit after reversal of the underlying judgment on appeal was not a termination on the merits in plaintiffs‟ favor, such as would be required to sustain their malicious prosecution claim.

Accordingly, we will affirm.


A. Prior Proceedings

This is the fifth major appellate chapter in a cluster of related suits and disputes. Because plaintiffs‟ counsel has once again failed to supply an adequate statement of the operative facts, we will once again extract the relevant background primarily from our prior opinions.

Plaintiffs‟ father, George Marion Drummond (decedent), died on August 28, 1998, leaving an estate worth several million dollars. (Estate of Drummond (Mar. 21, 2003, H023857) [nonpub. opn.] [p. 3] (Drummond I); see Estate of Drummond (Jun. 20, 2005, H026373 & H026660) [nonpub. opn.] (Drummond II); Estate of Drummond (2007) 149 Cal.App.4th 46 (Drummond III); Drummond v. Temmerman, Desmarais & Phillips (Jun. 10, 2009, H030601) ___ Cal.App.4th ___(Drummond IV).) His widow, Ok Yon Choe, whom he had married a few weeks before his death, petitioned to admit into probate a purported will by which he ostensibly bequeathed his entire estate to her. (Ibid.) After initially consulting Attorney James Rodriguez, plaintiffs engaged defendant Michael Desmarais to oppose the petition and thereby preserve their claims to shares of the estate by intestate succession. The agreement entitled Desmarais to a contingency fee up to 35 percent of the net amount recovered.

Eventually the probate court granted judgment on the pleadings against the widow‟s petition to admit the proffered instrument to probate. While her appeal from that order was pending, the parties reached a settlement. (Drummond I, supra, H023856, [p. 4].) In November 1999 the court approved a first distribution of estate assets including over $600,000 to Desmarais as fees. On March 14, 2001, the administrator filed a petition seeking a further distribution including about $150,000 in fees to Desmarais. On March 29, 2001, Jesse Marion appeared at the hearing on this petition and requested a continuance on the ground, among others, that she had "major issues with attorney fees and tax[es]." Plaintiffs engaged their present attorney, Michael Morrissey, and filed notice of objection on April 25, 2001, followed by further declarations and objections on June 1 and June 28, 2001.

In these filings plaintiffs complained, as summarized in Drummond II, supra, H026313 and H026660 [p. 8], that Desmarais, the administrator, and counsel for the administrator "had "attempted to defraud the I.R.S. in the hopes of personal gain,‟ that [the administrator] and his lawyer had filed a fraudulent tax return, that they had overcharged the estate, that the extraordinary fees claimed by [the administrator‟s] attorney were excessive, that Children‟s consent to the contingency fee agreement was obtained by duress and undue influence, that the contingency fee agreement was unconscionable and unenforceable, that Desmarais had entered into an illegal fee-sharing arrangement with Rodriguez, that Desmarais had concocted a scheme to have his fee calculated against the gross amount allocated to Children contrary to the provisions of the fee agreement, and that Desmarais had abandoned his clients and withdrawn from the case. They asserted that Desmarais expected to receive $1.5 million while Children had "only received a combined total of $600,000.‟ "*fn1

Desmarais and the administrator moved for summary judgment on the objections. The probate court granted that motion and entered judgment on August 31, 2001. Plaintiffs appealed on October 30, 2001. They then filed a civil action against Demarais, his firm, and Rodriguez, reasserting the claims lodged as objections in the probate matter.

On February 22, 2002, Desmarais filed, in propria persona, a "Complaint for Compensatory and Punitive Damages-Malicious Prosecution of Civil Action." In it he alleged that George Drummond and Jesse Marion, together with Attorney Morrissey, had, "[o]n March 29, 2001, June 1, 2001, and June 27, 2001 . . . instituted a civil action against [Desmarais]" claiming "damages in the sum of $1,500,000 as the proximate result of a fee agreement between [Desmarais] and [the] defendants that was unconscionable and was procured by [Desmarais‟s] fraud, breach of fiduciary duty and professional negligence and abandonment of representation. The action was entitled Estate of George Marion Drummond-Objection, George R. Drummond, Jesse L. Marion and Rebecca J. Drummond, Contestants v. Temmerman, Desmarais & Phillips, LLP, Michael G. Desmarais and James J. Rodriguez, Richard H. Lambie and John V. Willoughby, Defendants, No. 1-98-PR143829."*fn2 Nowhere in the complaint did Desmarais disclose that he had invented this title, which had never been borne by any pleading, or that the only relevant events on the dates set forth concerned objections by estate claimants to a proposed distribution of estate assets. He went on to allege that summary judgment had been granted on August 30, 2001, "in favor of all defendants in action number 143829, including plaintiff herein," without mentioning that the resulting judgment was then on appeal. He alleged that the "action" was brought without probable cause in that the contestants "did not honestly and reasonably believe that there were grounds for the action because [they] had obtained a judgment recovering 52% of the decedent‟s estate at the expense of his surviving spouse due to the services rendered by plaintiff over a three year period of time following multiple law and motion and evidentiary hearings, two settlement conferences supervised by retired California Supreme Court Justice Edward A. Panelli and the entry of multiple judgments in their favor, including the November 1, 1999 judgment by Honorable Thomas P. Hansen that approved plaintiff‟s fee agreement with defendants." He alleged that they acted maliciously "in that their motive and purpose was to wrong plaintiff by denying him the attorney‟s fees to which he was entitled pursuant to their fee agreement with him and the November 1, 1999 judgment approving that fee agreement by, among other things, falsely claiming that the fee agreement was unconscionable and was procured by plaintiff‟s fraud, breach of fiduciary duty, and professional negligence and abandonment of his representation." Finally, he alleged that the defendants acted in conscious and deliberate disregard of his rights, entitling him to punitive damages.

On June 19, 2002, the trial court sustained plaintiffs‟ demurrer to Desmarais‟s complaint on the ground that an appeal was pending from the underlying judgment. The court granted leave to amend, but stayed the order "during the pendency of the appeal from the judgment in the underlying action . . . , Court of Appeal case number H023857," i.e., Drummond I, supra, H023857. This court issued its decision in that appeal on March 21, 2003, reversing the grant of summary judgment on plaintiffs‟ objections to the second distribution of estate assets, and holding, among other things, that Desmarais had lacked standing to bring such a motion because he was not a party to the proceeding. (Drummond I, supra, H023857, [p. 2].) Our remittitur issued on June 20, 2003.

Some 12 days after we issued that decision, Desmarais made himself a party to the probate proceeding by filing a petition there for the fees he claimed were due. At the same time he moved to consolidate the new petition with plaintiffs‟ civil action against him, for the manifest purpose of bringing the latter before the same court that was presiding over the estate. Morrissey objected to both filings, in response to which Desmarais asserted a right to judgment on the pleadings because plaintiffs had failed to state facts sufficient to constitute a defense to the petition. Under rather remarkable circumstances described more fully in Drummond II, supra, H026373 and H026660, the trial court apparently granted this request; in any event it entered a judgment on July 11, 2003, requiring plaintiffs to pay some $300,000 to Desmarais. Plaintiffs appealed.

Meanwhile, apparently relying on the appellate judgment in Drummond I, supra, H023857, plaintiffs moved to dismiss Desmarais‟s malicious prosecution complaint. The trial court denied that motion on July 1, 2003. On September 10 of that year, with the children‟s second appeal (Drummond II, supra, H026373 & H026660) now pending, the court denied a second motion to dismiss. On June 20, 2005, we issued our decision in that matter, reversing the judgment on Desmarais‟s fee petition and directing the probate court to take no further action on it because the petition violated the compulsory cross-complaint rule. (Ibid., [pp. 21, 31-32].)

According to a declaration signed some 18 months later, Desmarais voluntarily dismissed his malicious prosecution action without prejudice on July 29, 2005. The dismissal does not appear in the record.

B. Proceedings Below

Plaintiffs apparently filed the complaint in this action in or around late July 2006.*fn3

It sets forth two distinct claims under a single count for malicious prosecution: first, that Desmarais, aided by his insurer, filed his complaint for malicious prosecution "without probable cause and without any reasonable belief that it could ever be successful"; and second, that all defendants caused the fee petition to be filed against plaintiffs in the probate matter, also without probable cause, "alleg[ing] falsely that the plaintiffs each had a contract requiring them to pay defendant DESMARAIS over $300,000, . . . that the plaintiffs had converted monies from defendant DESMARAIS, . . . [and] that the plaintiffs had received money that was supposed to go to defendant DESMARAIS . . . ."

All defendants demurred to the complaint and moved to strike it under section 425.16. The gist of the motion to strike was that plaintiffs could not show that either of the predicate suits-the probate fee petition or Desmarais‟s own malicious prosecution suit-had been terminated on the merits in plaintiffs‟ favor. Defendants also appeared to argue that plaintiffs could not show that Desmarais filed the actions without probable cause. Plaintiffs asserted in opposition that no reasonable attorney, and thus no attorney acting for reasons other than malice, could have filed the malicious prosecution complaint Desmarais filed. They further contended that a jury should decide "whether . . . the voluntary dismissal of the malicious prosecution action [was] a termination . . . on the merits . . . ." Morrissey, who also represented plaintiffs in this matter, filed a declaration the gist of which was that none of the defendants could have acted in good faith, or without malice, in pursuing the two predicate matters. Deborah Drummond, the spouse of one of the plaintiffs, filed a declaration detailing conduct by Desmarais which we describe more fully below in connection with his argument concerning the element of malice. (See pt. IIIA, post.)*fn4

The trial court granted the special motion to strike and entered a judgment of dismissal. This ...

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