Malicious Prosecution by Divorce Lawyer
In this unpublished Second Appellate District opinion, the Court finds for appellant/defendant law firm and determines that its special motion to strike (anti-SLAPP) pursuant to Code of Civil Procedure, section 425.16 should have been granted.
In a divorce action, wife hired the defendant law firm to represent her in Los Angeles Superior Court. Wife revealed to her attorneys that, although it rightfully belonged to her and husband, the family home was actually held in the name of husband's parents and provided evidence in support of her contention. Her attorneys then filed a constructive trust action against husband's parents and joined them in the dissolution action so that wife could gain control of the community property family home. Although the parents' attorney insisted that the property rightfully belonged to parents, wife's attorneys continued with the constructive trust action through wife's deposition and exchange of documents. Upon review of the documents provided by parents, wife's attorneys promptly dismissed the action against the parents.
The parents subsequently sued wife's attorneys for malicious prosecution. The attorneys, the Gould-Saltman Law Offices, filed an special motion to strike (anti-SLAPP) the Complaint, which was denied in the trial court, arguing that the parents would not be able to prevail on their malicious prosecution claim.
The Court of Appeal finds that the parents failed to show that there was no probable cause to bring the constructive trust action and failed to show the existence of malice on the part of the attorneys. First, for probable cause, the parents had to show that there was no probable cause to bring the action or that the attorneys continued to prosecute the case after they discovered that there was no probable cause. The Court finds that the attorneys' reliance on their client's statements (wife) was enough for a findng of probable cause and that the complaint was dismissed in a sufficient amount of time upon discovering that the action lacked merit. The Court also failed to find malice in the aforementioned conduct.
Of note, however, is the Court's determination that this constructive trust joinder action against a spouse's parents does not amount to a family law motion or OSC, which would be protected from a subsequent malicious prosecution claim under Bidna v. Rosen (1993) 19 Cal.App.4th 27.
Case: Budilo v. Gould-Saltman Law Offices
Court: Los Angeles
Judge: Stern
UNPUBLISHED OPINION / DO NOT CITE
In a divorce action, wife hired the defendant law firm to represent her in Los Angeles Superior Court. Wife revealed to her attorneys that, although it rightfully belonged to her and husband, the family home was actually held in the name of husband's parents and provided evidence in support of her contention. Her attorneys then filed a constructive trust action against husband's parents and joined them in the dissolution action so that wife could gain control of the community property family home. Although the parents' attorney insisted that the property rightfully belonged to parents, wife's attorneys continued with the constructive trust action through wife's deposition and exchange of documents. Upon review of the documents provided by parents, wife's attorneys promptly dismissed the action against the parents.
The parents subsequently sued wife's attorneys for malicious prosecution. The attorneys, the Gould-Saltman Law Offices, filed an special motion to strike (anti-SLAPP) the Complaint, which was denied in the trial court, arguing that the parents would not be able to prevail on their malicious prosecution claim.
The Court of Appeal finds that the parents failed to show that there was no probable cause to bring the constructive trust action and failed to show the existence of malice on the part of the attorneys. First, for probable cause, the parents had to show that there was no probable cause to bring the action or that the attorneys continued to prosecute the case after they discovered that there was no probable cause. The Court finds that the attorneys' reliance on their client's statements (wife) was enough for a findng of probable cause and that the complaint was dismissed in a sufficient amount of time upon discovering that the action lacked merit. The Court also failed to find malice in the aforementioned conduct.
Of note, however, is the Court's determination that this constructive trust joinder action against a spouse's parents does not amount to a family law motion or OSC, which would be protected from a subsequent malicious prosecution claim under Bidna v. Rosen (1993) 19 Cal.App.4th 27.
Case: Budilo v. Gould-Saltman Law Offices
Court: Los Angeles
Judge: Stern
UNPUBLISHED OPINION / DO NOT CITE
Labels: anti-slapp, community property, constructive trust, dissolution, divorce, joinder, malicious prosecution
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