IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 27, 2010
SONJA ZINKE, PLAINTIFF AND RESPONDENT,
PHILIPP GOEBELS ET AL., DEFENDANTS AND APPELLANTS.
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Reversed with directions. (Super.Ct.No. RIC541258)
The opinion of the court was delivered by: Richli J.
Zinke v. Goebels CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Philipp Goebels, through his attorney, Hugo Wm. Anderson, Jr., (collectively defendants), filed the underlying nuisance action against Sonja Zinke. After Zinke prevailed in that action, she filed this malicious prosecution action against defendants. Defendants filed special motions to strike under Code of Civil Procedure section 425.16 (SLAPP motions), which were denied.
Defendants contend that the trial court erred and that the motions should have been granted because:
1. Zinke's malicious prosecution complaint is not legally sufficient.
2. Zinke has no admissible evidence of lack of probable cause.
3. The default judgment that was entered against Zinke in the underlying action establishes probable cause (even though it was later vacated).
4. Zinke is bound by her admission in the underlying action that she was conducting horse training, boarding, and breeding operations on her property (even though she denied that these operations constituted a nuisance).
5. As to Attorney Anderson, Zinke has no admissible evidence of malice.
6. As to Attorney Anderson, Zinke failed to comply with Civil Code section 1714.10, which prohibits the assertion of a cause of action against an attorney for civil conspiracy with his or her client without leave of court.
7. The trial court erred by failing to rule on defendants' objections to Zinke's declaration.
Some of these contentions are extremely weak, to the point of being frivolous. For example, it is clear that, as a matter of law, the default judgment in the underlying action did not establish the existence of probable cause. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 21-22.) Likewise, it is clear that, as a matter of law, Civil Code section 1714.10 does not apply to an ordinary malicious prosecution action. (Alden v. Hindin (2003) 110 Cal.App.4th 1502, 1506-1507; Westamco Investment Co. v. Lee (1999) 69 Cal.App.4th 481, 487-488.)
Nevertheless, there is at least one grain of wheat in all this chaff -- defendants are correct that Zinke failed to introduce any substantial evidence (whether admissible or inadmissible) of lack of probable cause. Accordingly, the trial court erred by denying the special motions to strike.
Except as already stated above, we express no opinion on defendants' other contentions.
I FACTUAL BACKGROUND
The following facts are taken from the declarations in support of and in opposition to the SLAPP motions.
In 2004, Goebels, as client, through Anderson, as his attorney, filed a complaint against Zinke. Goebels lived next door to Zinke. He claimed that Zinke was operating a commercial horse training, boarding, and breeding business on her property, in violation of county zoning ordinances. His complaint, as subsequently amended, asserted causes of action for public and private nuisance and for intentional infliction of emotional distress.
While the underlying action was pending, Goebels told Zinke that he would "break [her]," "ruin [her]," "take everything away," and "financially destroy [her]."
Initially, Zinke defaulted. After a prove-up hearing, Goebels obtained a default judgment against her for $100,000. Zinke, however, filed a motion to vacate the default judgment, which was granted.
In 2006, Zinke discontinued her horse business and moved out of the property. Goebels admitted, in a deposition, that the activities constituting the alleged nuisance had ceased.
In 2008, Zinke filed a cross-complaint. In it, she "acknowledge[d] that horse training, breeding and boarding operations took place at her property as alleged in [Goebels's] complaint," but she "denie[d] . . . that these operations created a nuisance . . . ."
In 2009, the case went to trial. The trial court granted a non-suit on the causes of action for public nuisance and intentional infliction of emotional distress. On the private nuisance cause of action, a jury found in favor of Zinke.
In her malicious prosecution complaint, Zinke alleged that Goebels was a close friend of her ex-husband, Alfred Zinke, and that Goebels filed the underlying action at Alfred's behest.
Zinke testified that, after she prevailed in the underlying action, Alfred sent her a text message that said, "We are not done with you yet, we will still get you."
A. Legal Background.
Code of Civil Procedure section 425.16 provides for a special motion to strike, sometimes called a "SLAPP motion." It provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Code Civ. Proc., § 425.16, subd. (b)(1).)
"A special motion to strike involves a two-step process. First, the defendant must make a prima facie showing that the plaintiff's 'cause of action . . . aris[es] from' an act by the defendant 'in furtherance of the [defendant's] right of petition or free speech . . . in connection with a public issue.' [Citation.] If a defendant meets this threshold showing, the cause of action shall be stricken unless the plaintiff can establish 'a probability that the plaintiff will prevail on the claim.' [Citation.]" (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21, fn. omitted.)
As Zinke concedes, for purposes of a SLAPP motion, "every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding. [Citation.]" (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215.) Thus, the issue in this case relates to the second step of the process: Did Zinke establish a probability of prevailing on her malicious prosecution claim?
"[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing." (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) "'[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether "the plaintiff has established that there is a probability that the plaintiff will prevail on the claim" . . . , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.' [Citation.] '[T]he court's responsibility is to accept as true the evidence favorable to the plaintiff . . . .' [Citation.] '[T]he defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.' [Citation.]" (Daniels v. Robbins, supra, 182 Cal.App.4th at p. 215.)
B. Lack of Probable Cause.
Defendants contend that Zinke has no admissible evidence of lack of probable cause.
"The question of probable cause is 'whether, as an objective matter, the prior action was legally tenable or not.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) "There was no probable cause to prosecute an action only if no reasonable attorney would have believed that the action had any merit and any reasonable attorney would have agreed that the action was totally and completely without merit. [Citations.] The probable cause determination is objective and is based on the facts known to the malicious prosecution defendant at the time the action was initiated or prosecuted. [Citation.] Probable cause is a low threshold designed to protect a litigant's right to assert arguable legal claims even if the claims are extremely unlikely to succeed. [Citations.]" (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 926-927, fn. omitted.)
Zinke's declaration in opposition to the SLAPP motion stated that the allegations of the complaint in the underlying action were "completely fabricated." This was a legal conclusion; it could not serve as substantial evidence, except to the extent that it was supported by specific evidentiary facts. (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 [Fourth Dist., Div. Two]; Atiya v. Di Bartolo (1976) 63 Cal.App.3d 121, 126.)
Zinke offered only two facts in support of this conclusion. First, she noted that "[t]he allegations of Goebels'[s] complaint were ultimately adjudged to be without merit." However, "[f]avorable termination does not establish lack of probable cause nor does it raise such an inference. [Citation.]" (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1670, italics added.) "The mere fact that a party loses a lawsuit does not establish that he lacked probable cause to bring it." (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 455.) "[E]very case litigated to a conclusion has a losing party, but that does not mean the losing position was not arguably meritorious when it was pled. [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743.)
Second, Zinke noted that, even after 2006, when she moved away from the property and there was no longer any nuisance, Goebels did not discontinue the underlying action; to the contrary, in 2007, he filed an amended complaint, which alleged that she was maintaining an ongoing nuisance. Goebels, however, could reasonably continue the action in order to recover any damages he had already sustained.
Zinke asserts that Goebels had "no true damages." This assertion, however, is not cited to the record and must be disregarded. (Cal. Rules of Court, rule 8.204(a)(1)(C); Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371-1372.) Moreover, Zinke did not introduce any evidence to support it.
Zinke moved to augment the appellate record with certain documents from the file in the underlying action. Because it does not appear that these documents were ever filed or lodged with the trial court in this action, we denied the motion. Zinke has not asked us to take judicial notice of these documents. Even if she did, we would deny the request -- again, because the documents were never presented to the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
Finally, we note that, even if we were to consider these documents, they fall short of showing that Goebels had "no true damages." Quite the contrary, they show that he was claiming damages for loss of use. Moreover, Zinke had maintained dangerous dogs that had killed his dog, forcing him to install a fence at a cost of more than $10,000.
We recognize that a malicious prosecution action can be founded on a single cause of action that lacks probable cause, even when it is accompanied by other causes of action that do not lack probable cause. (Crowley v. Katleman (1994) 8 Cal.4th 666, 676-679.) This doctrine, however, has never been taken so far as to penalize a single allegation that lacks probable cause. Thus, even if, as of 2007, Goebels knew that his allegation of an ongoing nuisance was false, that falls short of showing that his nuisance cause of action as a whole lacked probable cause.
We therefore conclude that Zinke failed to make even a prima face showing that the underlying action lacked probable cause.
The order appealed from is reversed. The matter is remanded with directions to grant defendants' SLAPP motions. Defendants are awarded costs on appeal against Zinke.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: McKINSTER Acting P.J. KING J.
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