Appeal from orders of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed. (Super. Ct. No. 07CC03755).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Plaintiff Wilhelmina Daniels appeals an order granting a Code of Civil Procedure section 425.16 (anti-SLAPP) motion.*fn1 Wilhelmina*fn2 alleges various defendants committed the torts of malicious prosecution, abuse of process, negligence, and intentional infliction of emotional distress by filing and pursuing claims against her in a prior lawsuit.
The prior lawsuit was dismissed following the trial court's grant of terminating sanctions against James T. Young, the plaintiff in the prior lawsuit. The law firm Quinlivan Wexler LLP, attorney Patrick C. Quinlivan, and attorney Jack H. Robbins (collectively, the Quinlivan Attorneys) represented Young in the underlying action. Young and the Quinlivan Attorneys are defendants in this action. The court granted the Quinlivan Attorneys' anti-SLAPP motion and they are respondents to this appeal; Young is not a party to this appeal.
We affirm the order granting the anti-SLAPP motion because Wilhelmina failed to make the required showing she would probably prevail on her claims. With respect to the malicious prosecution cause of action, we affirm on the ground Wilhelmina failed to make a prima facie case of malice against the Quinlivan Attorneys.
We publish this opinion because of our analysis of: (1) the favorable termination prong of an action for malicious prosecution and our discussion of Zeavin v. Lee (1982) 136 Cal.App.3d 766 (Zeavin); and (2) possible satisfaction of the malice element by continued prosecution of an action, not just commencing, bringing, or initiating the action.
The Underlying Litigation
Young sued Wilhelmina for allegedly committing slander per se, intentional infliction of emotional distress, and intentional interference with an economic relationship by falsely stating to various individuals that: (1) Young kidnapped Wilhelmina's son, Karl Daniels; (2) Young forced Karl into a sexual relationship; and (3) Young is a con man. Having filed a lawsuit against Wilhelmina in March 2004, Young proceeded to ignore his obligations to participate in the discovery process. Young refused to appear for his deposition and provided no substantive responses to any of 10 sets of written discovery propounded by Wilhelmina. The court granted Wilhelmina's motions to compel Young's compliance with the Civil Discovery Act (§ 2016.010 et seq.). But Young still refused to serve any written discovery responses or appear for a deposition.
Wilhelmina served a motion for terminating sanctions based on Young's refusal to follow the court's orders and to comply with his discovery obligations. Young's attorneys filed a very brief opposition to this motion, claiming Young had been diagnosed with pneumonia and was limited in his physical activities. Young's attorneys noted Young had finally produced some documents to Wilhelmina in April 2005 and was continuing to work on the written discovery requests. The court granted Wilhelmina's motion for terminating sanctions and dismissed the case.
Wilhelmina initiated the instant malicious prosecution case. The Quinlivan Attorneys filed a special motion to strike the complaint pursuant to section 425.16. Included with the motion were declarations by Patrick Quinlivan and Jack Robbins, in which they attested the filing and continued litigation of the prior case "was based upon [the firm's] reasonable tenable belief, based on information at [the firm's] disposal, that the facts supported the allegations in the complaint. At no time did I or anyone at [the] firm have feelings of ill will or malice toward Ms. Daniels. The action was filed and litigated by [the] firm solely to advance Mr. Young's right to petition and seek redress through the court."
Evidence Submitted by Wilhelmina in Opposition to the Anti-SLAPP Motion
Wilhelmina filed an opposition to the anti-SLAPP motion with several declarations in support of her position. Karl's declaration suggested Young may have instigated the prior litigation against Wilhelmina (as well as two separate cases against Karl relating to alleged business torts) in bad faith. Karl moved to California in June 2003. After Karl returned home with his mother in November 2003, Young contacted Karl in Texas. Young's efforts to convince Karl to return with him to California "became tantamount to stalking" and motivated Karl to seek a protective order in Texas. Karl further declared: "On about April 14, 2004, Defendant James Young was in Austin, Texas, where he continued his attempts to have me return to California, and stated to me that if I did not return to California with him, that he would not rest until he bled my mother of all her money and a for sale sign was on her condo." Wilhelmina reasons that the underlying lawsuit was filed out of spite, not to redress a legitimate claim.
The remainder of Karl's declaration, as well as Wilhelmina's declaration, focused on the alleged impossibility of the factual allegations in Young's complaint. Young's complaint against Wilhelmina alleged, in relevant part: "On or about June 1, 2003, and continuing to the present, Defendant spoke the following words of and concerning the Plaintiff: Plaintiff kidnapped her son; Plaintiff had forced sexual relations with her son; and Plaintiff is a con man. [¶] The words were heard by employees at AFLAC, an insurance company with which Plaintiff does business, and several other persons whose names are not known to Plaintiff." Karl and Wilhelmina both declared, in essence, it would have been impossible for Wilhelmina to have spoken with anyone at AFLAC on or about June 1 because Karl did not even move to California until June 10, 2003, and Wilhelmina did not track down his location and employer until October 2003. Wilhelmina denied she made any of the allegedly slanderous statements.
Counsel for Wilhelmina also submitted a declaration. This declaration described, in painstaking detail, the discovery abuses leading to the dismissal of Young's complaint against Wilhelmina. The implication drawn by Wilhelmina is that the lack of evidence produced in discovery shows there was no probable cause to file Young's lawsuit against her and there was no probable cause to continue the lawsuit against her once it became clear there was no evidence for the contentions in the complaint.
Counsel's declaration also raised other alleged instances of misconduct which purportedly implicate the Quinlivan Attorneys along with Young. First, Wilhelmina's counsel described several communications between counsel early in the underlying case. Wilhelmina's counsel sought an extension to answer the complaint against her, and was informed by defendant Robbins "that his client had not authorized him to issue an extension of time to respond to the pleadings, and refused to stipulate to consolidating the three cases [against Wilhelmina and Karl]." Counsel for Wilhelmina, to no avail, informed Robbins of the Texas protective order against Young, claimed the slander lawsuit had no basis, and demanded to know the identity of the alleged witnesses. Wilhelmina suggests this evidence supports the inference that the Quinlivan Attorneys were on notice of the lack of merit to Young's claims and nevertheless were willing to file and pursue a meritless lawsuit and engage in abusive litigation tactics.
Second, Wilhelmina and Karl moved to consolidate the three actions filed against them by Young, but the Quinlivan Attorneys successfully opposed this motion through an allegedly false representation to the court. Robbins filed a declaration in the underlying action in which he stated the following, after describing the separate claims against Karl: "On the other hand, the case for defamation against Wilhelmina Daniels will involve taking depositions of at least ten witnesses, many of whom reside out of state and may be difficult to schedule. Also, we are seeking punitive damages against Ms. Daniels, which may require discovery on the financial condition, which will also likely involve delay in conducting discovery." Wilhelmina points out in her opposition to the anti-SLAPP motion that the identities of these 10 witnesses were never provided by Robbins or Young in response to formal and informal discovery requests. Allegations of perjury (by Robbins) appear throughout Wilhelmina's appellate briefs.*fn3
Third, Wilhelmina's counsel described the disintegration of the Quinlivan Attorneys' representation of Young. Robbins was no longer employed by the Quinlivan firm by December 2004. The Quinlivan Attorneys initiated settlement talks in early 2005, in which the ultimate offer by Young to settle consisted of a dismissal with prejudice in exchange for a mutual release of all rights (including malicious prosecution claims). There were indications in May 2005 that Robbins might substitute in as counsel for Young but this never occurred. The Quinlivan firm filed a notice of appeal for Young on July 19, 2005, and also filed the same day a motion to be relieved as counsel, citing both the nonpayment of legal fees by Young and "irreconcilable differences between client and attorney regarding strategy that may result in a violation of the rules of professional conduct."
Court's Ruling on Anti-SLAPP Motion
The court granted the anti-SLAPP motion. As to the malicious prosecution cause of action, the court found Wilhelmina failed to meet her burden as to the "favorable termination" element. The court also found Wilhelmina had not attempted to meet her burden to show she would prevail on her other three causes of action, essentially conceding that these causes of action were inappropriate in the context of the facts alleged. The court noted: "[Wilhelmina] concedes that these claims may be barred by the litigation privilege, but nonetheless contends that the Motion should be denied because these claims are basically the same as the First Cause of Action for Malicious Prosecution. Plaintiff cites no authority for this contention."
Wilhelmina asserts the court erred in granting the Quinlivan Attorneys' motion to strike the complaint under section 425.16. Our review of the court's order*fn4 is de novo, and entails an independent review of the entire record. (Ross v. Kish (2006) 145 Cal.App.4th 188, 197 (Ross); HMS ...