The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING MOTIONS IN LIMINE [doc. nos. 152, 153, 154, 157, 159, 161,163, 165]; DENYING MOTIONS IN LIMINE [doc. nos. 155, 156, 158, 160, 162, 166]; GRANTING IN PART AND DENYING IN PART MOTION IN LIMINE [doc. #164]
This matter is set for trial on June 2, 2010. In preparation for the trial, the parties have filed motions in limine that have been fully briefed. The Court finds these motions suitable for determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Plaintiff Stephen J. Barrett, M.D. is a retired psychiatrist and a nationally renowned consumer advocate. He runs the Quackwatch.org website that posts articles "that criticize many types of dubious health claims, products and practices." (Complaint, ¶ 2.) Defendant Carlos F. Negrete is an attorney who does business under the name Health Freedom Legal Defense Council and operates the Health Freedom Law website located at www.healthfreedomlaw.com. (Complaint, ¶ 3.) Defendant Hulda Clark, who died during the pendency of this action, has been dismissed because her estate lacks a legal representative for substitution. (Order filed April 15, 2010.)
Esther Figueroa filed an action against Hulda Clark in state court. On July 23, 2001, Ms. Clark, represented by Mr. Negrete, filed a cross-complaint naming plaintiff Barrett as one of the cross-defendants. The cross-complaint referred to Barret as a "delicensed psychiatrist" and alleged causes of action for violation of the RICO Act and malicious prosecution, as well as numerous other claims, including perjury, harassment, violation of civil rights and free speech, and business sabotage. (Complaint, ¶ 7.) On the day of the filing of the cross-complaint, Mr. Negrete's Health Freedom Law website displayed an announcement of the lawsuit and the entire cross-complaint. (Complaint, ¶ 9.) On July 24, 2001, Mr. Negrete distributed an e-mail message entitled, "Quackbusters charged with Racketeering" describing the cross-complaint The message referred recipients to www.healthfreedomlaw.com "for more information on the lawsuit." (Complaint, ¶ 11.) The information about the cross-complaint was publicized in over 40 web pages, 100 news group messages, and numerous publications. (Complaint, ¶ 15.) Plaintiff received numerous inquiries and negative comments from the recipients of the information, and spent significant time to prevent damage to his reputation. (Complaint, ¶ 16.)
On October 9, 2001, Defendants filed a first amended cross-complaint. On June 3, 2002, without having responded to any of plaintiff's discovery requests, defendants voluntarily dismissed the amended cross-complaint. (Complaint, ¶¶ 17-19.) Plaintiff contends that the publicizing of the cross-complaint and amended cross-complaint caused and continues to cause damage to plaintiff personally and professionally. As a result, plaintiff filed this action for malicious prosecution and abuse of process.
On February 4, 2003, defendants filed an anti-SLAPP*fn1 motion in response to plaintiff's complaint here. In such a motion, defendants has the burden of showing that Barrett's malicious prosecution claim against them arose from an act in furtherance of their free speech rights.
Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 58 (2002). The burden then shifts to Barrett to prove a probability of prevailing on the merits. DuPont Merck Pharm. Co. v. Superior Court, 78 Cal. App.4th 562, 567 (2000).
The Court granted defendants' special motion to strike the Complaint on June 24, 2003 [doc. #22], finding defendants had shown that Barrett's lawsuit challenged First Amendment speech protected by California Code of Civil Procedure § 425.16 but plaintiff had not shown a probability of prevailing on the merits. See DuPont Merck Pharm. Co. v. Superior Court, 78 Cal. App.4th 562, 567 (2000). The Court also determined that the voluntary dismissal of the amended cross-claim was a termination of the claim in plaintiff's favor.
In an unpublished decision, the Ninth Circuit Court of Appeals affirmed this Court's conclusion that defendants' voluntary dismissal of the cross-claim was "pursued to a legal termination in the plaintiff's favor" but found that plaintiff Barrett was likely to succeed on the merits of his malicious prosecution claim: "The scurrilous nature of the defendants' allegations of wrongdoing and their efforts to publicize them widely on the Internet, when coupled with their utter failure to offer any proof of their charges, gives rise to a compelling inference of malice." 126 Fed. Appx. 816, 818 (9th Cir. 2005).
After remand from the Court of Appeals, this Court granted defendants' unopposed motion to dismiss the abuse of process claim on October 20, 2005 [doc. #85]. Thus, the sole remaining claim is for malicious prosecution. To establish a cause of action for malicious prosecution, a party must prove that the prior action (1) had been commenced at the direction of the Defendant and was pursued to a legal termination in the plaintiff's favor; (2) was brought without probable cause, and (3) was initiated with malice. Hillebrand, Inc. v. Insurance Company of N.A., 102 Cal. App. 4th 585, 599 (2002). Because the Ninth Circuit affirmed the Court's ruling that the voluntary dismissal of the cross-claim was a termination of the claim in plaintiff's favor, the first element of the malicious prosecution claim has been established and is no longer at issue in this case.
The Court also notes that defendant Negrete is acting as his own counsel and prior to defendant Clark's death, acted as her attorney. Since this action was filed in 2002, Negrete has not raised with the district court the issue of attorney-client privilege with respect to any testimony he might provide at trial. Because the June 2, 2010 trial is a firm date, Negrete will be precluded from asserting the attorney-client privilege at trial.
Plaintiff's Motions in Limine
1. To Exclude Evidence Relating to Any Legal Issue Other Than Lack of Probable Cause, Malice and Plaintiff's Damages
As noted above, the remaining elements for plaintiff to prove his claim of malicious prosecution are lack of probable cause, malice and damages. The Ninth Circuit concluded, as this Court has, that Negrete's voluntary dismissal of the cross-complaint in the underlying action constituted a termination favorable to plaintiff. Nevertheless, Negrete opposes plaintiff's motion in limine by seeking to introduce evidence of the reason why defendant withdrew the cross-complaint contending that the factual basis for the dismissal of the cross-complaint was not reached. However, whether a voluntary dismissal of a cross-complaint is a termination favorable to plaintiff is a question of law, not a question of fact.
The Ninth Circuit decision in this case is quite clear: based on the facts in the underlying action, namely, the failure to defendants' to provide any discovery to Barrett at a critical time in the litigation, the voluntary dismissal of the cross-claim resulted in a favorable termination for plaintiff. The reasons why defendant dismissed his cross-claim in the underlying case is no longer at issue to show favorable termination in plaintiff's favor and is not relevant to the issues of lack of probable cause and malice. Accordingly, plaintiff's motion in limine will be granted.
2. To Exclude Defendant's Witnesses
Plaintiff seeks to exclude the following witnesses identified by defendant in the Amended Pretrial Order: Tim Bolen; Jim Turner, Esq.; Tedd Koren; Darlene Sherrell; Ilene Rosenthal; Dr. Terry Rondberg; Charles Brown, Esq.; Kevin Trudeau; Nick Gonzalez, M.D.; Laguna Beach Police; Huntington Beach Police; Milton Goldberg; Gary Knull; Will Hitchcock; Dr. Frank King; Chris Homer; Frank Cuny; and Dr. Kurt Donsbach. The exclusion is sought because none of the listed witnesses can testify as to facts for which they have personal knowledge relevant to the sole issues at trial: probable cause and malice. Instead, plaintiff contends defendant's witnesses are being introduced because they would testify as to Barrett's alleged litigious nature and his propensity to seek damages.
In opposition to this motion, defendant contends that the content of the witnesses' testimony is purely speculative and the Court should wait until trial to determine whether the testimony is admissible. But defendant utterly fails to disavow plaintiff's characterization of defendant's witnesses' testimony and to suggest a proper purpose for the testimony of these witnesses. Accordingly, the Court finds the witnesses would offer no testimony that is relevant to lack of probable cause and malice and will exclude the listed witnesses. If any of the witnesses can offer testimony about the ...