Kinsella v. Kinsella

• Citation: 258 Cal.Rptr.3d 725,45 Cal.App.5th 442
• Decision Date: 19 February 2020
• Docket Number: D074989
• Court: California Court of Appeals Court of Appeals
• Parties: Kevin KINSELLA, Plaintiff and Appellant, v. Tamara KINSELLA, Defendant and Respondent.

45 Cal.App.5th 442

258 Cal.Rptr.3d 725

Kevin KINSELLA, Plaintiff and Appellant,

v.Tamara KINSELLA, Defendant and Respondent.

D074989

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

Filed February 19, 2020

Mazzarella & Mazzarella and Mark C. Mazzarella, San Diego, for Plaintiff and Appellant.

Wolfe Legal Group, Deborah A. Wolfe and Brian P. Worthington, San Diego, for Defendant and Respondent.

IRION, J.

In this lawsuit, the trial court ruled that the malicious prosecution complaint was a SLAPP and struck it pursuant to Code of Civil Procedure section 425.16 ( section 425.16 ).¹ Plaintiff Kevin Kinsella appeals, arguing that the trial court erred in determining that he did not establish the requisite probability of prevailing on the merits of his claim against defendant Tamara Kinsella.² We agree and will reverse the judgment.

I. INTRODUCTION

To establish a cause of action for malicious prosecution, one of the elements the plaintiff must prove is that the defendant lacked probable cause to bring the prior action. ( Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775, 221 Cal.Rptr.3d 432, 400 P.3d 1 ( Parrish ).) One way the malicious prosecution defendant can establish probable cause for having brought the prior action, thereby defeating the later malicious prosecution claim, is by showing an interim victory on the merits in the prior action—such as the denial of a motion for summary judgment by the defendant (i.e., the plaintiff in the malicious prosecution action)—even where the prior action is ultimately terminated in favor of the defendant. ( Id. at pp. 776-777, 221 Cal.Rptr.3d 432, 400 P.3d 1 ; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 819, 123 Cal.Rptr.2d 19, 50 P.3d 733 ( Wilson ).) This is known as the interim adverse judgment rule. The rule will not be applied, however, where the interim victory in favor of the plaintiff in the prior action (i.e., the defendant in the malicious prosecution action) was obtained by means of fraud, perjury, or other unfair conduct. ( Carpenter v. Sibley (1908) 153 Cal. 215, 218, 94 P. 879 ( Carpenter ); Wilson at pp. 817, 820, 825, 123 Cal.Rptr.2d 19, 50 P.3d 733 ; Parrish , at pp. 776-778, 782, 221 Cal.Rptr.3d 432, 400 P.3d 1.) This is known as the fraud exception to the interim adverse judgment rule.

In the present case, these issues arise in the procedural context of an anti-SLAPP motion brought by Tamara, the defendant in Kevin's malicious prosecution complaint. Shortly after Tamara initiated dissolution of marriage proceedings against Kevin, Tamara sued Kevin based on what she contended was his promise, prior to their marriage, that the property and income they acquired during their relationship would belong equally to both of them (Marvin Action). After Tamara voluntarily dismissed the Marvin Action, Kevin sued her for malicious prosecution in the present action.

Seeking to have Kevin's malicious prosecution complaint stricken as a SLAPP, Tamara responded with a section 425.16 anti-SLAPP motion. In her effort to establish that Kevin could not show she lacked probable cause to prosecute the Marvin Action, Tamara relied on the interim adverse judgment rule: She (1) presented evidence that the trial court in the Marvin Action denied Kevin's motion for summary judgment, and (2) argued that this interim victory on Kevin's summary judgment motion precluded Kevin from establishing that Tamara lacked the requisite probable cause to file and prosecute the Marvin Action. In opposition, Kevin relied on the fraud exception to the interim adverse judgment rule: He argued that, because Tamara defeated Kevin's summary judgment motion in the Marvin Action by having submitted materially false facts on which the court relied in denying the motion, Tamara was not entitled to rely on the interim adverse judgment rule's presumption that resulted from the denial of his summary judgment motion in the Marvin Action.

The trial court granted Tamara's anti-SLAPP motion. In relevant part, the court ruled as follows: By the application of the interim adverse judgment rule, Tamara met her burden of establishing that Kevin cannot show that she lacked the requisite probable cause to have prosecuted the Marvin Action; and Kevin did not meet his responsive burden to allow the application of the fraud exception to the interim adverse judgment rule.

As we explain, because Kevin set forth facts that establish a prima facie application of the fraud exception, the court erred in applying the interim adverse judgment rule to conclude that Kevin did not establish the requisite probability of prevailing on his claim. Accordingly, we will reverse the judgment and remand with directions that the court vacate its order granting Tamara's anti-SLAPP motion and enter a new order denying the motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

As we explain at part III., post , the issues in the present appeal all arise from the second stage of the anti-SLAPP proceedings, during which the court determines whether the plaintiff can establish a probability of prevailing on the merits of the claim. ( § 425.16, subd. (b).) At this stage, "the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial." ( Sweetwater, supra , 6 Cal.5th at p. 949, 243 Cal.Rptr.3d 880, 434 P.3d 1152 ; see § 425.16, subd. (b)(2).) "Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection." ( Sweetwater , at p. 949, 243 Cal.Rptr.3d 880, 434 P.3d 1152.)

In the present case, the parties rely on the following evidence contained in the record on appeal: a declaration from Tamara's attorney; a declaration from Kevin; various exhibits introduced by the two declarations; and Kevin's amended verified complaint in this malicious prosecution action (verified complaint). Because the record on appeal does not contain any evidentiary objections (or rulings denying the admission of any proffered evidence), we consider all of the evidence submitted to the trial court (see Sweetwater, supra , 6 Cal.5th at p. 949, 243 Cal.Rptr.3d 880, 434 P.3d 1152 ; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268, 20 Cal.Rptr.3d 673 ( Gallagher ) [objections to evidence not made in the trial court's anti-SLAPP proceedings are forfeited on appeal³ ] )—as have the parties in their appellate briefing.

A. The Marvin Action: Tamara v. Kevin (Dec. 2013 - July 2015)

Tamara and Kevin lived together for 23 years, from a date in 1989 until May 2012. Kevin proposed marriage in May 1990; the parties married in April 1997 and separated in May 2012; and Tamara filed for divorce in December 2012. According to Kevin, prior to their marriage he was a "wealthy m[a]n" and had "considerable premarital separate property"; and many tens of millions of dollars of cash and property are at issue in the parties' marital dissolution action.

In December 2013, Tamara filed the Marvin Action. As relevant to this appeal, Tamara alleged that Kevin breached an express oral contract—entered into within six months of having met her—to take care of her for the rest of her life and to give her half of everything he owned, whether acquired before or after meeting her.⁴ Kevin generally denied the allegations in Tamara's complaint and alleged, among many affirmative defenses, that "[Tamara] is estopped from seeking relief ... due to her own acts or omissions with reference to the subject matter of the Complaint" (equitable estoppel defense).

The parties litigated the Marvin Action for approximately three and a half years. During that time, in early 2015, the trial court denied Kevin's motion for summary judgment. Kevin's position was that he never made any agreement with Tamara regarding his assets. In contrast, in her declaration in opposition to Kevin's motion, Tamara testified that, when Kevin proposed marriage in May 1990, he expressly promised her half of all of the assets he acquired after they met in 1989. Describing the parties' factual presentations as establishing "a he said, she said case" in which the trial would be "a credibility contest," the court denied Kevin's summary judgment motion. More specifically, the court ruled that triable issues of fact existed as to the showing of both the mutual assent and the consideration to create the express contract alleged in the complaint by Tamara.

In July 2017, Tamara dismissed the Marvin Action without prejudice.⁵

B. The Malicious Prosecution Action: Kevin v. Tamara (Feb. 2018 - Present)

In February 2018, Kevin initiated the malicious prosecution action against Tamara. In the verified complaint, Kevin testified that the Marvin Action was terminated in his favor and that Tamara brought the Marvin Action without probable cause and with malice, causing him money damages.

In due course, Tamara filed an anti-SLAPP motion. Consistent with the requirements of the anti-SLAPP statute, which we describe in greater detail at the beginning of part III., post , Tamara argued both that her claims in the Marvin Action arose from constitutionally protected activity and that there was a probability she would prevail on those claims. ( § 425.16, subd. (b).) In this latter regard, Tamara contended (1) that an application of the interim adverse judgment rule—based on the court's denial of Kevin's summary judgment motion in the Marvin Action—established the requisite probable cause for filing and prosecuting the Marvin Action, and (2) that the fraud exception did not apply. Anticipating Kevin's opposition, Tamara suggested that the denial of Kevin's summary judgment motion in the prior action was not " ‘induced by materially false facts submitted in opposition’ " to the motion. (Quoting Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 384, 90 Cal.Rptr.2d 408 ( Roberts ).)

...