Area 55, LLC v. Nicholas & Tomasevic, LLP, D075648

CourtCalifornia Court of Appeals
Writing for the CourtIRION, J.
Citation61 Cal.App.5th 136,275 Cal.Rptr.3d 519
Parties AREA 55, LLC, et al., Plaintiffs and Appellants, v. NICHOLAS & TOMASEVIC, LLP, et al., Defendants and Respondents.
Docket NumberD075648
Decision Date29 January 2021

61 Cal.App.5th 136
275 Cal.Rptr.3d 519

AREA 55, LLC, et al., Plaintiffs and Appellants,
v.
NICHOLAS & TOMASEVIC, LLP, et al., Defendants and Respondents.

D075648

Court of Appeal, Fourth District, Division 1, California.

Filed January 29, 2021


The Office of Michael Tenenbaum, Michael Tenenbaum ; Law Office of Aryeh Kaufman and Aryeh Kaufman for Plaintiffs and Appellants.

Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit and Jocelyn D. Hannah for Defendants and Respondents.

IRION, J.

61 Cal.App.5th 144

Area 55, LLC, and SAB Holdings, LLC (together, Appellants) appeal from an order of the trial court granting the special motion to strike their first amended complaint for malicious prosecution (complaint) and the related judgment of dismissal in favor of Nicholas & Tomasevic, LLP (N & T), Craig Nicholas, and Alex Tomasevic (together, Respondents). The trial court ruled that the complaint was a "SLAPP" and struck it pursuant to Code of Civil Procedure section 425.16 ( section 425.16 ; at times, anti-SLAPP statute; further unidentified statutory references are to the Code of Civil Procedure).1

The prior action, in which Appellants were named as defendants, was dismissed for failure to prosecute. As we explain, the trial court erred in ruling that Appellants cannot establish that the prior action was not terminated on its merits. Thus, for purposes of the anti-SLAPP statute, the court erred in ruling that Appellants did not demonstrate a probability of prevailing on the merits of their malicious prosecution claim.

In addition, in our de novo review, we exercise our discretion to reach the additional issues raised by the parties in the motion and opposition, rather

61 Cal.App.5th 145

than to remand the matter for trial court consideration in the first instance. In doing so, as we explain, we will conclude that Appellants made a sufficient prima facie showing of the remaining elements of their claim and that Respondents, in their showing, did not defeat Appellants' claim as a matter of law.

Accordingly, we will vacate the order granting Respondents' special motion to strike the complaint and reverse the judgment. On remand, we will direct the court to enter a new and different order denying Respondents' special motion.

I. STATEMENT OF THE CASE

In the complaint in this action, Appellants named Respondents in one cause of action for malicious prosecution. Respondents include California attorneys Nicholas and Tomasevic and, as alleged in the complaint, the "purported California limited liability partnership" N & T, which is the successor to Nicholas & Butler, LLP (N &

275 Cal.Rptr.3d 525

B), "also a purported California limited liability partnership." Appellants include the successors to Vinturi, Inc. (Vinturi), which, according to the complaint, are responsible for the development and sales of the " ‘Vinturi Essential Wine Aerator’ (the ‘Vinturi Aerator’) for wine-lovers who want to enhance their experience of drinking wine." The United States Patent and Trademark Office issued four patents for the Vinturi Aerator.

Underlying and forming the factual basis for the present malicious prosecution lawsuit is a class action lawsuit in San Diego County Superior Court, case No. 37-2010-00050074-CU-BT-NC, originally entitled Roehrig v. Exica, Inc. (Class Action). Beginning in January 2010 and continuing through the final judgment of dismissal of the Class Action in June 2015, Respondents and N & B were counsel of record for the plaintiff and plaintiff class, and Appellants were the defendants.

A. The Prior Action (the Class Action)2

1. The Vinturi Aerator

Rio Sabadicci invented a red wine aerator. Vinturi, which was wholly owned by Area 55, Inc., produced the aerator for sale. Sabadicci was the chief executive officer of these corporations.

61 Cal.App.5th 146

Vinturi started selling the Vinturi Aerator in 2006. Retail stores, wineries, restaurants, and bars carried the product. A company located in Pomona, California, manufactured the body of the Vinturi Aerator. As sold to the public, the box contained the Vinturi body with a decorative black silicone band, a rubber stand, and a filter screen. The silicone band, stand, and packaging were made in China, transported to the United States, and attached to the Vinturi body in the United States. Vinturi then placed the final aerator product into the stand and reclosed the box.

From 2006 until 2010, Vinturi sold its aerator in the United States with the statement " ‘ VINTURI IS MANUFACTURED IN THE USA ’ " printed on the bottom panel of the box, which measured approximately 3.1 inches square. Prior to making this representation, Sabadicci reviewed the Federal Trade Commission Web site, from which he concluded that Vinturi could accurately represent that the Vinturi Aerator was made in the United States because the body, which is 95 percent of the product, was made in the United States.

2. Roehrig Files the Class Action

In November 2009, Tom Roehrig purchased a Vinturi Aerator for $39.99 at a retail store. Roehrig saw the product at a friend's house, and after learning that it was made in the United States, he decided to buy the aerator even before going to the store.

A little over a month later, in January 2010, the firm of N & B, including attorney Nicholas, filed the Class Action against Appellants (as the defendants). Named plaintiff Roehrig alleged various consumer fraud claims in four causes of action based on alleged violations of: Civil Code section 1750 et seq. (Consumer Legal Remedies Act; CLRA);

275 Cal.Rptr.3d 526

Business and Professions Code section 17200 et seq. (unfair competition); Business and Professions Code section 17500 et seq. (false advertising); and, specifically, Business and Professions Code former section 17533.7 (sale of goods produced outside the United States bearing words "Made in U.S.A."). Under the various statutes, the Class Action complaint sought relief for the basic violation of Business and Professions Code former section 17533.7, which at the time of the filing of the Class Action provided: "It is unlawful for any person, firm, corporation or association to sell or offer for sale in this State any merchandise on which merchandise or on its container there appears the words ‘Made in U.S.A.,’ ‘Made in America,’ ‘U.S.A.,’ or similar words when the merchandise or any

61 Cal.App.5th 147

article, unit, or part thereof, has been entirely or substantially made, manufactured, or produced outside of the United States."3 (Stats. 1961, ch. 676, § 1.)

By May of 2010, N & B, including attorney Nicholas, had filed a first and second amended complaint on behalf of Roehrig, alleging the same four causes of action against the same defendants.

Representing the named plaintiff, in September 2011 N & B, including attorneys Nicholas and Tomasevic, moved for class certification and for appointment as class counsel. In support of the motion, Roehrig submitted a declaration in which he testified that, when he purchased his Vinturi Aerator, he believed and relied on the representation that it was made or manufactured in the United States, and that, if he had known otherwise, he would have considered competing aerators, especially if any were manufactured in the United States. Following full briefing and oral argument, the court granted the motion, certifying the plaintiff class and appointing N & B as class counsel.

In July 2013, Appellants (as the defendants) moved to dismiss the case. Appellants presented evidence that Roehrig had abandoned his claims against Appellants in 2010 , nine months after filing the Class Action and almost a year before moving for class certification, when he filed bankruptcy and did not list his claims in the Class Action lawsuit on his bankruptcy schedules. Treating the motion as a motion for judgment on the pleadings, the court granted the motion with 20 days leave to amend to add a new class representative.

Appellants (as the defendants) brought a motion for prevailing party attorney fees against Roehrig. Relying on Civil Code section 1780, subdivision (e),4 Appellants argued that they were the prevailing defendants in Roehrig's claim under the CLRA and that Roehrig did not prosecute the Class Action in good faith. Finding that Roehrig acted in both subjective and

61 Cal.App.5th 148

objective bad faith in filing the Class Action, the trial court granted Appellants' motion for attorney fees against Roehrig.5

275 Cal.Rptr.3d 527

Roehrig appealed, and in April 2016 this court affirmed the order granting the motion, concluding in relevant part: "The record supports the trial court's finding ‘Roehrig was interested in buying a lawsuit to make money, or [to] help his friend [Sean Rones].’ " ( Roehrig , supra , D066790.)

3. Drew Ector Prosecutes the Class Action

In late November 2013, Respondents filed a third...

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10 practice notes
  • People v. Jackson, D077095
    • United States
    • California Court of Appeals
    • February 23, 2021
    ...for young adult LWOP offenders from [the parole] process is consistent with the statute's purpose and legislative history." ( 275 Cal.Rptr.3d 519 Acosta, supra, 60 Cal.App. at ––––, 275 Cal.Rptr.3d 110 [2021 WL 458002, at p. *7, 2021 Cal.App.Lexis, at p. *18].) I, too, would invite the Legi......
  • Alfaro v. Waterhouse Mgmt. Corp., 2d Civil No. B313842
    • United States
    • California Court of Appeals
    • August 4, 2022
    ...malicious prosecution action is protected activity" under the anti-SLAPP statute. (See Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 151, 275 Cal.Rptr.3d 519 [" ‘ " ‘every claim of malicious prosecution is a cause of action arising from protected activity ...’ " ’ "].......
  • Citizens of Humanity, LLC v. Ramirez, B299469
    • United States
    • California Court of Appeals
    • April 19, 2021
    ...the argument. Oheck simply assumes that the class claims can be treated separately.10 Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 275 Cal.Rptr.3d 519 (Area 55 ) presented the mirror image of this case. There, attorneys were sued for maliciously prosecuting an underl......
  • Urick v. Elkins Kalt Weintraub Reuben Gartside, LLP, B310056
    • United States
    • California Court of Appeals
    • November 18, 2021
    ...Cal.4th 728, 735 [malicious prosecution claim based 8 upon prosecution of prior lawsuit]; Area 55, LLC v. Nicholas & Tomasevic (2021) 61 Cal.App.5th 136, 151 [same]; Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136 [same]; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [abuse of proce......
  • Request a trial to view additional results
11 cases
  • Maleti v. Wickers, H048393
    • United States
    • California Court of Appeals
    • August 15, 2022
    ...be directed to an entire lawsuit or even to an entire cause of action. [Citations.]" ( Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 153, 275 Cal.Rptr.3d 519.) As we have concluded, Carol made a prima facie showing that some , but not all, of the claims asserted again......
  • People v. Jackson, D077095
    • United States
    • California Court of Appeals
    • February 23, 2021
    ...for young adult LWOP offenders from [the parole] process is consistent with the statute's purpose and legislative history." ( 275 Cal.Rptr.3d 519 Acosta, supra, 60 Cal.App. at ––––, 275 Cal.Rptr.3d 110 [2021 WL 458002, at p. *7, 2021 Cal.App.Lexis, at p. *18].) I, too, would invite the Legi......
  • Alfaro v. Waterhouse Mgmt. Corp., 2d Civil No. B313842
    • United States
    • California Court of Appeals
    • August 4, 2022
    ...malicious prosecution action is protected activity" under the anti-SLAPP statute. (See Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 151, 275 Cal.Rptr.3d 519 [" ‘ " ‘every claim of malicious prosecution is a cause of action arising from protected activity ...’ " ’ "].......
  • Citizens of Humanity, LLC v. Ramirez, B299469
    • United States
    • California Court of Appeals
    • April 19, 2021
    ...the argument. Oheck simply assumes that the class claims can be treated separately.10 Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 275 Cal.Rptr.3d 519 (Area 55 ) presented the mirror image of this case. There, attorneys were sued for maliciously prosecuting an underl......
  • Request a trial to view additional results
1 firm's commentaries
  • 2021 In Review: Cases Involving Lawyers
    • United States
    • Mondaq United States
    • March 30, 2022
    ...awarded their attorney fees. Not as fortunate were the lawyers in the controversial case of Area 55, LLC v. Nicholas & Tomasevic, LLP, 61 Cal. App. 5th 136, another malicious prosecution action wherein the Court of Appeal reversed the trial court's granting of an anti-SLAPP motion. In the b......

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