Wilson v. Parker, Covert & Chidester

• Decision Date: 01 August 2002
• Docket Number: No. S097444.,S097444.
• Citation: 50 P.3d 733,123 Cal.Rptr.2d 19,28 Cal.4th 811
• Court: California Supreme Court
• Parties: Raul WILSON et al., Plaintiffs and Appellants, v. PARKER, COVERT & CHIDESTER et al., Defendants and Respondents. Raul Wilson et al., Plaintiffs and Appellants, v. Mark Williams, Defendant and Respondent. Raul Wilson et al., Plaintiffs and Appellants, v. Carl Axup et al., Defendants and Respondents.

123 Cal.Rptr.2d 19

28 Cal.4th 811

50 P.3d 733

Raul WILSON et al., Plaintiffs and Appellants, v. PARKER, COVERT & CHIDESTER et al., Defendants and Respondents. Raul Wilson et al., Plaintiffs and Appellants, v. Mark Williams, Defendant and Respondent. Raul Wilson et al., Plaintiffs and Appellants, v. Carl Axup et al., Defendants and Respondents.

No. S097444.

Supreme Court of California.

August 1, 2002.

Rehearing Denied October 2, 2002.

Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew, Santa Monica, for Plaintiffs and Appellants.

Armen L. George, in pro. per., and, for Alan D. Barbour and Miyoko 0. Barbour as Amici Curiae on behalf of Plaintiffs and Appellants.

Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Mark L. Keifer, Laine E. Hedwall and Matthew E. Voss, for Defendants and Respondents Parker, Covert & Chidester, Spencer E. Covert and Mark Williams.

Reich, Adell, Crost & Cvitan, Paul Crost and Carlos R. Perez, Los Angeles, for Defendants and Respondents Reich, Adell, Crost & Cvitan and Marianne Reinhold.

Stream & Stream, David D. Werner and Jamie E. Wrage, Riverside, for Defendants and Respondents Carl Axup and K.T. Bowers. Rutan & Tucker and David C. Larsen, Costa Mesa, for California School Boards Association Education Legal Alliance as Amicus Curiae on behalf of Defendants and Respondents Parker, Covert & Chidester, Spencer E. Covert, Mark Williams, Carl Axup and K.T. Bowers.

Hinshaw & Culbertson, Ronald E. Mallen, San Francisco, and Paul E. Vallone as Amici Curiae on behalf of Defendants and Respondents.

Sidley Austin Brown & Wood and Mark E. Haddad, for Amoco Corporation and Amoco Technology Company as Amici Curiae on behalf of Defendants and Respondents.

Best Best & Krieger, Jack B. Clarke, Jr., John F. Walsh, Angelica Y. Castillo and Megan K. Starr, Riverside, for David Kuzmich, Carole Castle and Ellen Schwartz as Amici Curiae on behalf of Defendants and Respondents.

WERDEGAR, J.

One of the elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874, 254 Cal. Rptr. 336, 765 P.2d 498

.) The question presented here is whether the trial court's denial, in the prior action, of a special motion to strike under California's anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc, § 425.16) establishes that probable cause did exist for bringing the action, precluding maintenance of the malicious prosecution suit absent proof the ruling was obtained by fraud. We conclude that denial of the motion to strike does establish the existence of probable cause where, as in this case, the trial court's denial ruling was predicated on a finding that the action had potential merit. We therefore affirm the judgment of the Court of Appeal, which affirmed the trial court's sustaining of demurrers to this malicious prosecution action.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying action, Kuzmich v. Mexican Political Assn. (Super. Ct. Riverside County, 1996, No. 283066), arose from demonstrations and personal confrontations occurring in and around a public school. The plaintiffs were teachers and administrators at the school who alleged that the demonstrators' actions and speech amounted to harassment and defamation; the defendants were allegedly participants in, or organizers of, the protests and accompanying confrontations.

Several of the Kuzmich defendants, including the Mexican Political Association (MPA), which organized the demonstrations, and Raul Wilson, an officer of the MPA, moved to strike the action under the anti-SLAPP statute (Code Civ. Proc, § 425.16 (hereafter section 425.16)). The trial court denied the motion on three grounds: the motion was untimely; the defendants had not established that the action arose from acts "in furtherance of [their] right of petition or free speech" (§ 425.16, subds.(b)U), (e)); and the plaintiffs had demonstrated a probability they could prevail on the merits (id., subd. (b)(3)) by establishing, in the trial court's words, "a sufficient prima facie showing of facts to sustain a favorable judgment." ¹ The Kuzmich defendants sought review of this ruling by petition to the Court of Appeal for a writ of mandate. The Court of Appeal granted the petition in part, vacating the superior court's order denying the motion to strike as to Wilson and the MPA. The reviewing court held that the organized protests came within the protective scope of section 425.16, though some of the personal insults and slurs alleged to have been made did not. Finding insufficient evidence of a conspiracy to harass or defame, and therefore examining each defendant's conduct individually, the Court of Appeal held that "[a]s for Wilson, there is no evidence that he personally committed tortious conduct and he is entitled to a dismissal." The MPA, the court further held, "cannot be held liable for the actions of certain of its members, and it has no liability in tort for sponsoring a protest on an issue of public significance." (Martinez v. Superior Court (Aug. 29, 1997, E020044) [nonpub. opn.].) On remand, the superior court granted the motion to strike and dismissed the action as to Wilson and the MPA.

Wilson and the MPA then brought this suit for malicious prosecution and other causes of action against the Kuzmich plaintiffs and their attorneys. The superior court sustained demurrers to the complaint by the attorney defendants and by teachers Carl Axup and K.T. Bowers, and dismissed the action as to them.

The Court of Appeal affirmed. Observing that "the denial of a SLAPP suit motion to strike parallels the denial of a motion for summary judgment," the court followed Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 90 Cal.Rptr.2d 408 (Roberts), which held that denial of a defense summary judgment motion normally establishes probable cause. As did the Roberts court (id. at p. 384, 90 Cal. Rptr.2d 408), the Court of Appeal reasoned that the foundation for the contrary view, enunciated in Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 205 Cal.Rptr. 62 (Lucchesi), had been undermined by this court's intervening decision in Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498 (Sheldon Appel), adopting an objective standard of probable cause for malicious prosecution actions. One justice dissented from this holding, arguing that, because survival of a section 425.16 motion to strike requires only a prima facie case, denial of such a motion does not establish probable cause. The dissenter maintained that Roberts conflicted with this court's approving citation of Lucchesi in Crowley v. Katleman (1994) 8 Cal.4th 666, 692-693, footnote 15, 34 Cal.Rptr.2d 386, 881 P.2d 1083.

We granted plaintiffs' petition for review.

DISCUSSION

We addressed the probable cause element of malicious prosecution comprehensively in Sheldon Appel, supra, 47 Cal.3d 863,254 Cal.Rptr. 336,765 P.2d 498. We first considered the policy reasons for adhering to limitations on the malicious prosecution tort, reiterating that the tort is disfavored both because of its "potential to impose an undue `chilling effect' on the ordinary citizen's willingness to report criminal conduct or to bring a civil dispute to court" (id. at p. 872, 254 Cal. Rptr. 336,765 P.2d 498) and because, as a means of deterring excessive and frivolous lawsuits, it has the disadvantage of constituting a new round of litigation itself (id. at p. 873, 254 Cal.Rptr. 336,765 P.2d 498). A preferable approach is "the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself." (Ibid.)

Applying that policy perspective to the delineation of the probable cause element, this court held, first, that the existence or nonexistence of probable cause is a legal question to be resolved by the court in the malicious prosecution case; litigants are thus protected against the danger that a lay jury would mistake a merely unsuccessful claim for a legally untenable one. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-877,

254 Cal.Rptr. 336,

765 P.2d 498.) We further held that probable cause is determined objectively, i.e., without reference to whether the attorney bringing the prior action believed the case was tenable (id. at pp. 877-882, 254 Cal.Rptr. 336,

765 P.2d 498), and that the standard of probable cause to bring a civil suit was equivalent to that for determining the frivolousness of an appeal (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal. Rptr. 508, 646 P.2d 179), i.e., probable cause exists if "any reasonable attorney would have thought the claim tenable." (Sheldon Appel, supra, at p. 886, 254 Cal. Rptr. 336,

765 P.2d 498.) This rather lenient standard for bringing a civil action reflects "the important public policy of avoiding the chilling of novel or debatable legal claims." (Id. at p. 885, 254 Cal.Rptr. 336,

765 P.2d 498.) Attorneys and litigants, we observed, "`have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win (Ibid., quoting In re Marriage of Flaherty, supra, at p. 650, 183 Cal.Rptr. 508, 646 P.2d 179.) Only those actions that "`any reasonable attorney would agree [are] totally and completely without merit'" may form the basis for a malicious prosecution suit. (Ibid.)

Long before Sheldon Appel was decided, decisions in California and elsewhere established that a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court.² Although this rule predates Sheldon Appel, it is motivated by much the same policy concern....