Yee v. Cheung

• Decision Date: 04 October 2013
• Docket Number: D060989
• Citation: 162 Cal.Rptr.3d 851,220 Cal.App.4th 184
• Court: California Court of Appeals Court of Appeals
• Parties: CHEONG YU YEE, Plaintiff and Appellant, v. Don CHEUNG et al., Defendants and Respondents.

220 Cal.App.4th 184
162 Cal.Rptr.3d 851

CHEONG YU YEE, Plaintiff and Appellant,
v.
Don CHEUNG et al., Defendants and Respondents.

D060989

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

Filed October 4, 2013

See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1019 et seq.

APPEAL from an order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed. (Super. Ct. No. 37–2011–00090446–CU–NP–CTL)

Law Offices of Amelia A. McDermott and Amelia A. McDermott, San Diego, for Plaintiff and Appellant.

J. Kenneth Jensen in pro. per.

Pettit Kohn Ingrassia & Lutz, Douglas A. Pettit and Valerie Garcia Hong, San Diego, for Defendant and Respondent Sally Tsui Wong–Avery.

Phillips Haskett & Ingwalson and Frederick C. Phillips, San Diego, for Defendants and Respondents Yuk Wai Ho, Lin Wah Music Center of San Diego, Zhao Hong Hang, Ng Man Kiong, Lan H. Hom, Fung Yuet Xiong, Kuen Wan Ghu, Pun Wa, Xiao Xiong Pan, Run You Chen, and Veronica Kwok.

AARON, J.

[220 Cal.App.4th 189]

I. INTRODUCTION

This appeal arises out of a malicious prosecution action filed by plaintiff Cheong Yu Yee against defendants J. Kenneth Jensen, Esq.; Sally Tsui Wong–Avery, Esq.; Don Cheung; Lin Wah Music Center of San Diego (Lin Wah); Zhao Hong Hang; Wai Mui Lee; Kai Ai Ng; Tong Yum; Ng Man Kiong; Lan H. Hom; Fung Yuet Xiong; Run You Chen; Kuen Wan Ghu; Xiao Xiong Pan; Pun Wa; Veronica Kwok; and Yuk Wai Ho.¹

The malicious prosecution action arises from defendants' participation in an underlying action against Yee for claims of fraud and conversion in the matter of Lin Wah Music Center et al. v. Cheong Y. Yee et al. (Super. Ct. San Diego County, 2009, No. 37–2008–00080938–CU–FR–CTL) (the Lin Wah action). After a trial in the Lin Wah action, a jury found in favor of Yee on both of plaintiffs' claims.

Almost two years after Yee prevailed in the Lin Wah action, he filed a malicious prosecution action against Lin Wah, multiple individual members of Lin Wah, and two attorneys who Yee alleged had represented the plaintiffs in the Lin Wah action—Jensen and Wong–Avery. In response to the malicious prosecution action, Lin Wah, the individual defendants, and attorney defendant Wong–Avery filed motions to strike under the anti-SLAPP (Strategic Lawsuit Against Public Participation) law. Attorney defendant Jensen filed a demurrer to the complaint on the ground that the action was time-barred as to him, pursuant to the statute of limitations set forth in Code of Civil Procedure ² section 340.6. The trial court addressed both the demurrer and the motions to strike in a single order, sustaining the demurrer as to attorney defendant Jensen and granting the motion to strike as to all other defendants.

[220 Cal.App.4th 190]

Yee appeals from the trial court's order sustaining the demurrer as to attorney defendant Jensen and granting the remaining defendants' motions to strike under the anti-SLAPP law. Yee contends that the trial court erred in granting the defendants' anti-SLAPP motions because he sufficiently established a probability of succeeding on his malicious prosecution claim against them, despite the fact that the trial court had denied his motion for a nonsuit in the Lin Wah action. Yee also challenges the trial court's sustaining of Jensen's demurrer, arguing that the one-year statute of limitations set forth in section 340.6 is applicable to attorney malpractice actions but does not apply to malicious prosecution actions brought against an attorney defendant.

We reject Yee's contentions on appeal and affirm the trial court's rulings.

II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background

Lin Wah is an organization whose members promote and participate in Chinese opera. Sometime in 2004, Lin Wah members met with Yee about the possibility of forming a nonprofit musical organization to stage and perform Chinese opera events. In 2005, Yee and Lin Wah formed the nonprofit organization “Asian Culture & Senior Center, Inc.” (ACSC). A representative of Lin Wah withdrew funds from its bank account and deposited them into an account created for ACSC. Yee became president of ACSC, and Cheung, one of the members of Lin Wah, became the treasurer of ACSC.

In 2006, a dispute arose concerning the management of the ACSC bank account, to which Cheung had access. At some point, Yee removed Cheung as a signatory of the ACSC bank account. Members of Lin Wah were unhappy with Yee's decision and accused Yee of withholding the funds. The members of Lin Wah voted to disassociate from Yee and ACSC.

Not long after Lin Wah and Yee parted ways, members of Lin Wah approached Wong–Avery for assistance in recovering from Yee money that they believed rightfully belonged to Lin Wah. Wong–Avery learned that Yee had hired an attorney to represent his interests with respect to the monetary dispute. Wong–Avery referred Lin Wah members to Attorney Jensen to assist them in the matter. In November 2007, Jensen sent a letter to Yee on behalf of Lin Wah requesting that he return the disputed funds.

[220 Cal.App.4th 191]

Yee apparently did not agree to turn the funds over to Lin Wah. On April 1, 2008, Lin Wah and its members, represented by Jensen, filed a complaint against Yee alleging causes of action for fraud and conversion. ³

A trial was held in April 2009. Wong–Avery associated in as cocounsel with Jensen on the first day of trial. Over two days, Lin Wah presented its case. At the close of Lin Wah's case, Yee moved for a nonsuit. The trial court ruled, “Well, okay, at this point, the court is supposed to give plaintiff the benefit of the doubt on the evidence. And viewing the evidence in the light most favorable, I think there's enough there to let it go past this point.” ⁴

On April 29, 2009, the jury returned a verdict in favor of Yee on both causes of action.

B. Procedural background

Yee filed a complaint for malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress against all of the defendants on April 28, 2011.

Attorney defendant Jensen filed a demurrer to the complaint on July 6, 2011, arguing that the action against him was time barred under the one-year statute of limitations set forth in section 340.6, as applied to malicious prosecution actions against attorneys pursuant to Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 122 Cal.Rptr.3d 608 (Vafi ).

On July 8, 2011, attorney defendant Wong–Avery filed a special motion to strike the entire complaint as to her, pursuant to section 425.16, the anti-SLAPP law. Wong–Avery argued that Yee failed to demonstrate a probability of prevailing on the merits of his claim for three reasons: (1) his malicious action against her was barred by the one-year statute of limitations under section 340.6; (2) he could not establish that she lacked probable cause or prosecuted the case with malice at the time she associated in to the Lin Wah action; and (3) his claims for intentional and negligent infliction of emotional distress were barred by the litigation privilege under Civil Code section 47, subdivision (b).

Later that month, the nonattorney defendants filed their own special motion to strike the complaint under section 425.16. In their motion, they relied on the second and third grounds that Wong–Avery presented in her special motion to strike.

[220 Cal.App.4th 192]

In the trial court's tentative ruling on Jensen's demurrer and the other defendants' special motions to strike, the court indicated its intention to sustain the demurrer without leave to amend and to grant the special motions to strike. The court held a hearing on the motions on September 23, 2011. At the conclusion of the hearing, the court adopted its tentative ruling as its final ruling.

Yee filed a timely notice of appeal from the trial court's order.⁵

III. DISCUSSION
A. Defendant Jensen's demurrer to the complaint

1. Legal standards

We review de novo an order sustaining a demurrer to determine whether the complaint alleges facts sufficient to state a cause of action. (CPF Agency Corp. v. Sevel's 24 Hour Towing Service (2005) 132 Cal.App.4th 1034, 1042, 34 Cal.Rptr.3d 120.) We exercise our independent judgment as to whether the complaint states a cause of action. (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86, 120 Cal.Rptr.2d 741.) “ ‘A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.’ [Citation.]” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153, 121 Cal.Rptr.3d 819.)

[220 Cal.App.4th 193]

When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

2. Analysis

Yee's complaint alleging malicious prosecution against Jensen and the other defendants was filed on April 28, 2011, which was one year and 364 days after the jury returned a verdict in his favor in the Lin Wah action.⁶ A “cause of action for malicious prosecution first accrues at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously. [Citation.]” ( Babb v. Superior Court (1971) 3 Cal.3d 841, 846, 92 Cal.Rptr. 179, 479 P.2d 379.)

The issue in dispute is whether the one-year statute of limitations set forth in section 340.6, subdivision (a)⁷ applies to a malicious prosecution action against an attorney, or instead, whether the general two-year statute of limitations set forth in section 335.1, which typically applies to claims for malicious prosecution, applies even where the malicious prosecution defendant is an attorney.⁸

One other appellate court...