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Joanna R. Mendoza v. Jeffrey Wichmann et al

May 3, 2011


APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. (Super. Ct. No. 07AS03232)

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


Reversed with directions.

The trial court denied defendants' motion to strike plaintiff's malicious prosecution complaint as a SLAPP, ruling the plaintiff had introduced sufficient evidence of her likelihood of succeeding on the merits.*fn1

We reverse. We find on the undisputed facts that the defendants had probable cause to bring the underlying action, and thus plaintiff cannot establish an element of her malicious prosecution claim. We direct the trial court to enter a new order granting the defendants' motion and dismissing the malicious prosecution complaint.


Defendant Jeffrey Wichmann was a defendant in a civil action in Yolo County captioned "Dale M. Wallis v. PHL Associates, Inc., et al." (the "Wallis action"). Plaintiff Joanna R. Mendoza was the attorney for Dale Wallis in the Wallis action. In that action, Wallis claimed her former employer, PHL Associates, Inc. ("PHL"), which Wichmann partially owned, had wrongfully terminated her. The lawsuit involved ownership rights to a vaccine that Wallis claimed she developed while employed at PHL. A mistrial was declared on the first trial, but at the second trial, a jury found Wichmann liable. However, no judgment has been entered pending trial of a cross-complaint Wichmann filed in the action. (Wichmann I.)*fn3

The events giving rise to this case began to unfold after jury deliberations commenced in the second trial of the Wallis action. Because Wallis and Mendoza had experienced a number of incidents of vandalism and harassment, and because they believed Wichmann was responsible for these incidents, Carol Livingston, the managing principal of Mendoza's law firm, Livingston and Mattesich (L&M), was notified of Mendoza's safety concerns. Livingston contacted a representative of the owner of the building in which L&M's offices were located and relayed those concerns. Livingston also gave the building's security guard Wichmann's name, description, and picture. Someone made a report to the police department, although Livingston and L&M denied they did it. (Wichmann I.)

While the jury was deliberating in the Wallis action, the trial judge called a conference of all parties in the action and handed them a copy of the police report. The report stated Sheri Woodward, property manager of the L&M building, advised the authorities that Wichmann was "very unstable, [had] called in threats and [had] participated in the vandalism of [the] law firm's vehicles." In response, Wichmann filed an action against Mendoza, Livingston, and L&M for defamation. (Wichmann v. Livingston & Mattesich Law Corp. (Sacramento Super. Ct. No. 00AS04943).) (Wichmann I.)

Mendoza, Livingston, and L&M brought a motion to strike Wichmann's defamation complaint pursuant to Code of Civil Procedure section 425.16, otherwise known as an anti-SLAPP motion.*fn4 The trial court denied the motion. We affirmed the trial court's ruling. (Wichmann I.)

Later, L&M filed a motion for summary judgment against the defamation complaint. Mendoza was not a party to that motion. The trial court denied the motion, finding that material questions of fact remained for trial. L&M and Wichmann subsequently began settlement negotiations.

Meanwhile, the trial court ordered the parties to proceed with judicial arbitration. The arbitrator denied Wichmann's defamation claim and awarded costs to the defendants in that action. Wichmann rejected the arbitration award and requested a trial de novo of his claims against Mendoza and L&M.

Subsequently, Wichmann entered into a settlement agreement with L&M in which he received a substantial settlement. (Wichmann II.) The trial court determined the settlement was in good faith. Mendoza was not a party to the settlement agreement, and the agreement did not require Wichmann to dismiss Mendoza from the action. Wichmann then voluntarily filed a request for dismissal of the defamation action against Mendoza with prejudice. The superior court clerk entered the dismissal as requested. (Wichmann II.)

Mendoza filed a motion to vacate the request for trial de novo, vacate the dismissal of the action against her, and enter judgment in her favor on the arbitration award. The trial court denied the motion. We reversed the trial court's order and directed the trial court to enter the arbitration award as a judgment. (Wichmann II.)

Nearly two years later, Mendoza filed this action against Wichmann and Wichmann's attorney in the defamation action, defendant Klaus J. Kolb, for malicious prosecution of the defamation action against her. Wichmann filed an anti-SLAPP motion against the complaint, and Kolb filed a request for joinder in the motion.

The trial court granted Kolb's request for joinder, but it denied the anti-SLAPP motions. It ruled Mendoza had shown a probability of success on the merits of her malicious prosecution claim.

Wichmann and Kolb appeal from that determination. They claim the trial court erred when it denied their anti-SLAPP motions. They argue that Mendoza cannot show a probability of successfully proving all of the elements of her malicious prosecution claim, asserting the defamation action did not end in a favorable termination for Mendoza, and Wichmann and Kolb had probable cause to pursue the defamation action. Wichmann also claims he brought the defamation action on the advice of counsel and thus cannot be liable for malicious prosecution. Additionally, Kolb claims he cannot be held liable for bringing the defamation action because Mendoza offered no evidence of malice on his part.


We provide a detailed statement of the relevant facts. Because we decide this matter on Wichmann's probable cause to bring the defamation action, we focus on preliminary facts that allegedly caused Mendoza to be concerned for her security, the facts as known by Wichmann and Kolb at the time they filed the defamation action, the facts they learned after they had filed that action, and the trial court's resolution of their anti-SLAPP motion against Mendoza's malicious prosecution action.

1. Facts causing Mendoza to be concerned for her security

Initially, we discuss some incidents between Wichmann, Mendoza, and Wallis that, according to Mendoza, gave rise to her concerns about her security and the security of L&M. These concerns eventually led to the creation of the police report that accused Wichmann of being unstable, making threats, and committing acts of vandalism.

Mendoza, acting as counsel for Wallis in the Wallis action, deposed Wichmann on April 29, 1999, prior to the first trial in that case. Wichmann had learned that morning that Mendoza had served a subpoena on a medical facility to obtain copies of medical records of a co-defendant, who happened to have been Wichmann's step-brother. The following exchanges occurred during the deposition, with the italicized words representing statements Mendoza claims she found to be threatening to her:

"MS. MENDOZA: Let the record reflect the witness [Wichmann] has stepped outside with counsel for a period of time to discuss something with both attorneys.

"Q [by Mendoza]: Do you recall being present at a meeting of the board of directors for September 19th, 1989?

"MR. GLICK [Wichmann's trial counsel in the Wallis action]: Move to strike counsel's paranoid comments. You can proceed.

"THE WITNESS: Maybe she should be paranoid. Okay. I'm looking at this." (Italics added.)

And then later:

"THE WITNESS: Doesn't that mean anything to you [directing his comments at Mendoza] that we've had witness after witness that has said [Wallis] hasn't developed crap? She can't make oatmeal. You have no witnesses at all. You don't have no shred -- you don't have one document that shows she developed anything, and you're continuing to represent her. There is really something either wrong with her or you or both of you, I guess. I'm not real sure. It's very surprising, very confusing.

"MS. MENDOZA: Anything you want to add to that?

"A [WICHMANN]: Maybe.

"Q Feel free.

"MR. GLICK: Go ahead. She's asking you to talk.


"A [WICHMANN]: I'm sure I'll find a proper time.

"You do know if we have any money left after this, that we are -- we're going to turn around. You know that. Whether it's summary judgment or whatever, we're not going to -- the one thing I can't believe is that [Wallis] would go after Tom's personal ...

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