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Sassan Vafi et al v. Heather Mccloskey et al

March 22, 2011


APPEAL from a judgment of the Superior Court of Los Angeles County. Abraham Khan, Judge. (Los Angeles County Super. Ct. No. BC421765)

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



This matter presents an issue which it seems no reported decision has addressed: Which statute of limitations applies to an action for malicious prosecution against an attorney? We conclude that the limitations period applicable to actions against attorneys under section 340.6 of the Code of Civil Procedure applies rather than the general statute of limitations applicable to actions for malicious prosecution under section 335.1.*fn2 On this and other grounds, we affirm the judgment.


In 2002, appellant Sassan Vafi and Kathleen Keller, who were dating at the time, decided to launch a business making and selling disposable swimsuits. A corporation named ONE SUIT, Inc. (ONE SUIT) was formed on July 17, 2002, with Vafi and Keller listed as the initial directors. Vafi filed a patent application for the idea under his own name. Meanwhile, Keller registered the trademark ONE SUIT under her own name with the United States Patent and Trademark Office in 2003 and the mark was issued to Keller alone on January 6, 2004. In late 2003, Keller and Vafi terminated their personal and business relationships. Vafi then sold the remaining inventory of swimsuits to (FredaLA).

Keller maintains that Vafi agreed to purchase the ONE SUIT trademark and the inventory from her for $15,000, which he never paid her. On September 22, 2006, she filed a complaint for trademark infringement against Vafi and ONE SUIT in federal district court, alleging that Vafi*fn3 improperly used the mark "1Suit," a "colorable imitation of the One Suit mark," to advertise and sell disposable bathing suits. Vafi asserted a counterclaim for cancellation of the trademark, conversion and interference with economic advantage along with his answer. Vafi then moved for summary judgment on several grounds, including that Keller did not own the trademark because she should have registered the trademark under the corporation's name and that the sale of the inventory to FredaLA was pursuant to an agreement with Keller. Vafi's summary judgment motion was denied by the district court on August 27, 2007, and his counterclaims were dismissed on Keller's motion for judgment on the pleadings. Keller subsequently dismissed the federal trademark action with prejudice on September 19, 2007.

On September 15, 2009, Vafi filed the instant suit, alleging claims for malicious prosecution against Keller*fn4 and the respondents to this appeal, the attorneys who represented her in the federal trademark action, Heather McCloskey and the law firm of Ervin, Cohen & Jessup, LLP. The respondents filed a special motion to strike, arguing that the trademark action arose from protected activity and Vafi could not demonstrate a probability of prevailing because the action was time-barred and the district court's denial of Vafi's summary judgment motion established probable cause for the action. The respondents also requested attorney fees for bringing the motion to strike.

The trial court granted the motion to strike, and dismissed with prejudice the complaint as to the respondents, concluding first "that this action is barred as to the attorney defendants under applicable one-year Statute of Limitations. See CCP § 340.6." The court alternatively found that "the denial of a motion for summary judgment in the underlying case conclusively establishes probable cause for prosecuting the underlying cases." The trial court also granted respondents' attorney fees request in the sum of $14,327. Vafi filed his notice of appeal from the court's order granting the respondents' motion to strike on March 23, 2010.


As noted, the trial court granted respondents' anti-SLAPP motion, finding that Vafi did not have a probability of prevailing on the merits of his claim because his prosecution was barred by the statute of limitations. He appeals and contends the trial court erred. We disagree.

"Section 425.16 provides for the early dismissal of certain unmeritorious claims by means of a special motion to strike." (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669.) The statute 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." (§ 425.16, subd. (b)(1).) "In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Id., subd. (b)(2).) "Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); [citation].)" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

I. The Second Prong: The Action Is Time-barred

We turn to the second prong of the analysis first, as it formed the basis for the trial court's ruling, and the parties focus upon it in their briefs. Vafi contends he had a probability of prevailing on his claim because he had two years to file his complaint under section 335.1, which applies to claims for "injury to . . . an individual caused by the wrongful act or neglect of another." It has previously been held that section 335.1 governs claims for malicious prosecution generally. (Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190, 197 (Stavropoulos).) The respondents, on the other hand, successfully argued to the trial court that Vafi's claim was subject to the one-year limitations period under section 340.6, which governs most causes of action against attorneys. Section 340.6, subdivision (a) provides, in relevant part, "[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be ...

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