Kim v. R Consulting

• Decision Date: 30 July 2021
• Docket Number: D076923
• Citation: 67 Cal.App.5th 263,281 Cal.Rptr.3d 918
• Court: California Court of Appeals Court of Appeals
• Parties: Andy KIM, Plaintiff and Appellant, v. R CONSULTING & SALES, INC., et al., Defendants and Respondents.

67 Cal.App.5th 263

281 Cal.Rptr.3d 918

Andy KIM, Plaintiff and Appellant,

v.R CONSULTING & SALES, INC., et al., Defendants and Respondents.

D076923

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

Filed July 30, 2021

As Modified August 27, 2021

Certified for Partial Publication.^*

Paul N. Tauger ; ONE and Peter R. Afrasiabi, Newport Beach, for Plaintiff and Appellant.

Neil, Dymott, Frank, McCabe & Hudson and Matthew R. Souther, San Diego, for Defendants and Respondents R Consulting & Sales, Inc., Raquel Michel, and Lance Ricotta.

Klinedinst, Daniel S. Agle and Robert M. Shaughnessy, San Diego, for Defendants and Respondents Michael J. Mason, Paul S. Metsch, and Metsch & Mason, LLP.

HUFFMAN, Acting P. J.

INTRODUCTION

In May 2019, Andy Kim filed a lawsuit against law firm Metsch & Mason, LLP, its partners Paul S. Metsch and Michael J. Mason (collectively, the law firm defendants), and their clients R Consulting & Sales, Inc. (R Consulting), Raquel Michel, and Lance Ricotta for malicious prosecution, abuse of process, and intentional infliction of emotional distress. In his suit, Kim alleged the defendants wrongfully initiated contempt charges in connection with their enforcement of a civil judgment against him in R Consulting v. Info Tech et al. (Super. Ct. San Diego County, 2015, No. 37-2015-00002561-CU-BC-CTL.) The defendants filed motions to strike the complaint under Code of Civil Procedure ¹ section 425.16, the anti-SLAPP statute, and the court granted the motions and entered judgments against Kim. Kim appeals the court's grant of the anti-SLAPP motions, contending: (1) an order to show cause regarding contempt can form the basis of a malicious prosecution action; (2) the trial court erred in concluding that Kim could not show a probability of success on his malicious prosecution claim because it applied an incorrect standard to determine whether the defendants had probable cause to seek contempt; and (3) the defendants acted maliciously by continuing to prosecute the contempt action following our decision in R Consulting & Sales, Inc. v. Info Tech Corporation et al. (Jan. 18, 2019, D072492) [nonpub. opn.].

We conclude that the defendants' motion for an order to show cause (OSC) re contempt does not form a basis for a malicious prosecution action here, preventing Kim from demonstrating a probability of success on the merits, and we will affirm the judgments in favor of the law firm defendants, R Consulting, and Michel on that basis. Because we conclude an OSC re contempt does not form a basis for a malicious prosecution action, we do not reach Kim's arguments that the court applied an incorrect standard in reaching its decision or that defendants acted maliciously in pursuing contempt. Further, because Kim failed to provide a complete record on appeal, even were we to reach the second and third issues, we would be unable to fully evaluate the judgment in favor of R Consulting and Michel, and we would affirm that order and judgment on that basis. Kim did not file a notice of appeal regarding the order or judgment in favor of Ricotta, so we lack jurisdiction to entertain any challenge regarding Ricotta. ( Cal. Rules of Court, rule 8.104(b) ; Van Beurden Ins. Servs. v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51, 56, 61 Cal.Rptr.2d 166, 931 P.2d 344.)

I.BACKGROUND AND PROCEDURAL HISTORY

A. The Underlying Lawsuit

In January 2015, R Consulting sued Kim and his company Info Tech Corporation (Info Tech) for breach of contract, alleging they failed to pay airplane lease payments.² Kim and Info Tech cross-complained, alleging among other things that R Consulting and certain individuals defrauded them by making false representations about the aircraft. In April 2016, R Consulting moved to compel compliance with inspection demands, seeking access to e-mail stored on some of the Info Tech servers. In connection with this motion, the court ordered Kim to produce the documents and issued monetary sanctions. By November 2016, Kim had not provided the documents or access to the servers. Once R Consulting finally accessed the server, it discovered the server was inoperable. It sought issue, evidentiary, or terminating sanctions against defendants, asserting that defendants had intentionally sabotaged the servers to prevent the collection of the information necessary to prosecute the complaint and defend against the cross-complaint. The court granted terminating sanctions.

Kim and Info Tech timely appealed that decision.

B. Postjudgment Collection Litigation

Following that judgment, R Consulting and its law firm, Metsch & Mason LLP, began collection proceedings. The postjudgment litigation continued throughout 2017 and 2018, and as part of it, Kim was required to participate in judgment debtor examinations. In January 2018, the trial court imposed a turnover order, requiring Kim to supply copies of his paychecks, and it also ordered Kim to pay 25 percent of his disposable income from his employers.

R Consulting accused Kim of failing to cooperate, and the law firm, on behalf of R Consulting, filed a motion for an OSC regarding contempt against Kim under section 1209, arguing Kim willfully failed to appear at four judgment debtor examinations, violated a salary turnover order, and committed perjury. Attorney Michael Mason's supplemental declaration alleged five charges: (1) Kim failed to appear at judgment debtor exams on November 7, 2017, January 5, 2018, July 13, 2018, and October 12, 2018; (2) Kim delayed in providing payment records and failed to provide information about the receipt of a $25,000 payment issued by an employer; (3) Kim failed to provide payment records from two employers, IT Source and Emajee, then turned over funds which accounted for only 25 percent of Kim's earnings from one of the employers; (4) Kim failed to supply dated and legible payment records from employer IT Source; and (5) Kim failed to provide any payment records from employer Emajee.

The trial court granted R Consulting's motion and set an OSC for contempt, at which time the court planned to arraign Kim on the charges and set a date for trial on contempt. It instructed R Consulting to prepare an OSC setting forth charges of contempt. The court subsequently issued an order granting the motion for an OSC at which Kim would need to show cause as to why he should not be held in civil contempt.

C. The Earlier Appeal

R Consulting used the same allegations as a basis for its motion to dismiss Kim's appeal of the terminating sanctions, arguing the disentitlement doctrine should have prevented him from seeking the appeal. Specifically, R Consulting contended in its motion to dismiss that Kim materially failed to comply with his obligations during the judgment enforcement process by failing to appear at four court-ordered judgment debtor exams, violated a salary turnover order, committed perjury at the judgment debtor examinations, and failed to file individual tax returns since 2008. R Consulting also separately argued there was substantial evidence to support the trial court's finding of spoliation of evidence and terminating sanctions.

On January 18, 2019, a panel of this court issued its unpublished opinion in R Consulting & Sales, Inc. v. Info Tech Corporation et al., supra , D072492. We declined to exercise our discretionary power to dismiss the appeal and addressed the issues on which R Consulting based its request for dismissal. We concluded that "[a]s frustrating as Kim's behavior and testimony have been during the judgment debtor process, dismissal of defendants' appeal [was] not the appropriate remedy."

We also concluded there was substantial evidence to support the court's imposition of a termination sanction due to its determination that Kim had engaged in spoliation, and we affirmed the judgment.

D. The Contempt Trial

The civil contempt trial proceeded in R Consulting's case against Kim on April 15, 2019. At the outset of the proceeding, the trial court dismissed counts two through five, all of which related to the turnover order, for failure to include language required by section 699.040, subdivision (c). Following R Consulting's presentation of evidence, Kim requested dismissal of the remaining count, which related to his alleged failures to appear at the four debtor examinations. The trial court found Kim not guilty of contempt and dismissed all charges.

E. Kim's Suit for Malicious Prosecution

In May 2019, Kim filed the present suit against R Consulting, Michel, Ricotta, Mason & Metsch LLP, and Mason and Metsch individually, alleging malicious prosecution, abuse of process, and intentional infliction of emotional distress. The causes of action were all based on the contempt charges in the earlier lawsuit.

The law firm defendants filed a motion to strike the complaint under section 425.16, the anti-SLAPP statute. The remaining defendants answered the complaint, and R Consulting and Michel filed a separate anti-SLAPP motion to strike from the one Ricotta filed.³

In their motion to strike, the law firm defendants argued that contempt proceedings could not form the basis of a malicious prosecution charge because contempt is a subsidiary procedural action. The trial court declined to determine whether an OSC regarding contempt could provide a basis for malicious prosecution, but it granted the law firm defendants' motion, dismissed the complaint, and entered judgment in their favor because it concluded that Kim could not show a probability of prevailing on his claim, as he failed to show a lack of probable cause to initiate the contempt proceedings. Echoing its analysis in the judgment and order in favor of the law firm defendants, a couple months later, the court granted R Consulting and Michel's anti-SLAPP motion. Judgment was entered in those defendants' favor. Kim timely appealed these judgments.

II.DISCUSSION

A. Malicious Prosecution Based on Contempt Charges

Kim appeals from judgments granting anti-SLAPP motions and...