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Pasternack v. McCullough

California Court of Appeals, Fourth District, Second Division

April 17, 2015

LAWRENCE PASTERNACK, Plaintiff and Appellant,
v.
THOMAS B. McCULLOUGH, JR. et al., Defendants and Respondents.

APPEAL from the Superior Court of Riverside County, No. INC1205224, Harold W. Hopp, Judge.

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COUNSEL

Hatton, Petrie & Stackler, Gregory M. Hatton, Arthur R. Petrie II, and John A. McMahon for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Bartley L. Becker for Defendants and Respondents.

OPINION

KING, J.

I. INTRODUCTION

Plaintiff and appellant Lawrence Pasternack appeals from an order granting the special motion to strike (Code Civ. Proc., § 425.16)[1] his present complaint for malicious prosecution against an attorney and his law firm, defendants and respondents Thomas B. McCullough, Jr. and Thomas B. McCullough, Jr., A Professional Corporation (the McCullough defendants). We affirm.

The parties agree the complaint is based on protected speech and petitioning activity. (§ 425.16, subd. (e); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [3 Cal.Rptr.3d 636, 74 P.3d 737] [litigation is

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protected speech and petitioning activity].) They dispute whether the underlying action was terminated in favor of Pasternack (Babb v. Superior Court (1971) 3 Cal.3d 841, 845 [92 Cal.Rptr. 179, 479 P.2d 379] ["It is hornbook law that the plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor”]), and thus whether Pasternack met his ...


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