Hms Capital, Inc. v. Lawyers Title Co.

• Decision Date: 30 April 2004
• Docket Number: No. B158008.,B158008.
• Citation: 118 Cal.App.4th 204,12 Cal.Rptr.3d 786
• Court: California Court of Appeals Court of Appeals
• Parties: HMS CAPITAL, INC., etc., Plaintiff and Respondent, v. LAWYERS TITLE COMPANY, etc., Defendant and Appellant.

12 Cal.Rptr.3d 786

118 Cal.App.4th 204

HMS CAPITAL, INC., etc., Plaintiff and Respondent, v. LAWYERS TITLE COMPANY, etc., Defendant and Appellant.

No. B158008.

Court of Appeal, Second District, Division 3.

April 30, 2004.

Richard D. Marks Professional Corporation and Richard D. Marks for Defendant and Appellant.

Kester & Isenberg and Charles F. Kester for Plaintiff and Respondent.

ALDRICH, J.

The issue on appeal is whether the trial court erred in denying an anti-SLAPP motion.¹ The motion contended that a malicious prosecution lawsuit should be stricken. We affirm the order denying the motion in part because the party bringing the malicious lawsuit received a favorable termination on the merits of the underlying lawsuit, irrespective of the voluntary settlement of costs.

FACTUAL AND PROCEDURAL BACKGROUND

1. Introductory facts.

Plaintiff and respondent HMS Capital Inc., a California corporation, (HMS) is a residential mortgage broker specializing in arranging refinancing of home mortgages in California with no points and no-cost loans. Defendant and appellant Lawyers Title Company, a corporation, (Lawyers Title) is in the business of providing title and escrow services for real estate transactions.

In May 1998, HMS and Lawyers Title entered into an oral contract, under which Lawyers Title was to provide title insurance and escrow services to HMS. A few months later, the parties ended their business relationship.

2. The underlying litigation.

On April 9, 1999, Lawyers Title filed suit against HMS (LASC No. BC 208521). In its complaint and first amended complaint, Lawyers Title alleged it was owed approximately $40,000 for cancellation fees from various title services.

In an amended cross-complaint, HMS sought $13,578 for breach of contract, unjust enrichment, conversion, and interference with prospective economic advantage.

A court trial was held. The trial court ruled that Lawyers Title was to take nothing on its complaint, and HMS was awarded $7,185.27 (for the amount that had been held in escrow), plus prejudgment interest and costs on the cross-complaint. In rendering its opinion, the trial court issued a May 17, 2001, statement of decision in which it made a number of factual findings. The judgment entered on May 17, 2001, left open a space for the amount of costs to be awarded to HMS, which was to be determined later.

On May 24, 2001, HMS filed a memorandum of costs requesting $9,053.87 in costs.

On June 11, 2001, the trial court accepted and filed a stipulation between the parties regarding the amount of costs to be awarded to HMS. In the stipulation, the parties agreed that the total costs awarded to HMS was to be $7,906.36.² On June 11, 2001, the trial court amended the judgment by interlineation to include a $7,906.36 costs award. The June 11, 2001, order of the court read: "Good cause appearing, HMS is to be awarded $7,906.36 in costs in accordance with the [parties'] Stipulation, and such costs are to be included in the Judgment." Lawyers Title asserts that it paid the judgment and a full satisfaction of judgment was filed. Lawyers Title did not appeal.

3. The present proceedings.

On December 20, 2001, HMS filed a malicious prosecution case against Lawyers Title.

Lawyers Title responded with a motion to strike, pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. Lawyers Title attached to its motion the declaration of its attorney, Richard D. Marks, a copy of Code of Civil Procedure section 425.16, a copy of an appellate court case discussing the application of anti-SLAPP motions to malicious prosecution actions, and the June 11, 2001, stipulation regarding costs.³

HMS opposed the motion. HMS attached to its opposition the following: a declaration from its counsel; the May 17, 2001, judgment; the statement of decision in LASC No. BC 208521; and a communication that had been sent from HMS's attorney to Lawyers Title's counsel during the pendency of LASC No. BC 208521. This communication stated in part, "[g]iven [the] clear language [of the escrow instructions we used] we believe [Lawyers Title's] claims to be frivolous." This communication had attached a copy of the escrow instructions the parties had used. The escrow instructions stated in part, "HMS Capital will not be paying any cancellation fees whatsoever to Lawyers Title...." In his declaration, HMS's counsel declared that on numerous occasions he had told Lawyers Title that its case was unfounded, but Lawyers Title's counsel insisted on a payment of $25,000 to resolve the case. HMS's counsel further declared that in case No. BC 208521, Lawyers Title had taken no depositions and had promulgated only one set of form interrogatories.

HMS contended in its opposition that it had a probability of prevailing on its malicious prosecution case because: (1) LASC No. BC 208521 had been terminated in its favor; (2) the findings in the statement of decision in LASC No. BC 208521 demonstrated that Lawyers Title's breach of contract claims lacked probable cause; and (3) LASC No. BC 208521 was initiated with malice as demonstrated by (a) the trial court's findings in that case; (b) the minimal discovery conducted by Lawyers Title in that case; and (c) the fact that HMS had informed Lawyers Title's counsel that its breach of contract claims were baseless.

In its reply brief, Lawyers Title contended: (1) LASC No. BC 208521 had not been terminated favorably to HMS because the judgment was entered upon stipulation; (2) the claims in LASC No. BC 208521 were legally tenable and the trial court's statement of decision in that case contained no explicit finding that there was no probable cause to initiate the case; (3) the amount of discovery conducted in LASC No. BC 208521 was not relevant with regard to malice; and (4) settlement discussions were inadmissible and not an indicia of lack of probable cause or malice. Lawyers Title submitted an additional declaration from its counsel; the May 17, 2001, judgment, as modified on June 11, 2001; the June 11, 2001, minute order in which the trial court directed the May 17, 2001, judgment be modified; and the pleadings from LASC No. BC 208521.

On April 8, 2002, the trial court denied Lawyers Title's anti-SLAPP motion. Lawyers Title appealed from the denial of the motion.⁴

DISCUSSION

1. The remedy of a special motion to strike under Code of Civil Procedure section 425.16.

The purpose underlying the anti-SLAPP statute, Code of Civil Procedure section 425.16 (hereinafter section 425.16), is set forth therein. It states: "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." (§ 425.16, subd. (a).)

To meet this concern, section 425.16 provides that 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 or 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).)

The determination that the plaintiff will prevail is made on the basis of the pleadings, as well as "supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) If it is determined that there is a probability the plaintiff will prevail, that determination is inadmissible at any later stage of the case and does not affect the applicable burden or degree of proof. (§ 425.16, subd. (b)(3).)

2. Burdens of proof.

We "summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)

In other words, "the moving defendant's burden is to show the challenged cause of action `arises' from protected activity. [Citations.] Once [but only if] it is demonstrated the cause of action arises from the exercise of the defendant's free expression or petition rights, then the burden shifts to the plaintiff to show a probability of prevailing in the litigation." (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 151, 106 Cal.Rptr.2d 843.)

"[S]ection 425.16 is analogous to other statutes requiring the plaintiff to make a threshold showing, which are aimed at eliminating meritless litigation at an early stage. [Citation.]" (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 355, 42 Cal.Rptr.2d 464.) A plaintiff opposing an anti-SLAPP motion bears the burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907, 84 Cal.Rptr.2d 303; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614, 129 Cal.Rptr.2d 546.) Anti-SLAPP motions must be...