Lanz v. Goldstone , 243 Cal. App. 4th 441 ( 2015 )

Filed 12/29/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
BRIAN P. LANZ,
Plaintiff and Respondent,
A141694
v.
PETER GOLDSTONE, (Sonoma County
Super. Ct. No. SCV254359)
Defendant and Appellant.
Appellant Peter Goldstone is a Santa Rosa attorney. So is respondent Brian Lanz.
Lanz represented Hebe Garcia-Bolio (Bolio) in a Marvin action,1 in connection with
which Lanz had a contingency fee agreement. The Marvin action settled on the third day
of trial, following which there soon arose a dispute as to the value of the settlement—and
therefore Lanz’s fee. Lanz filed suit against Bolio, who failed to respond, and her default
was taken. Goldstone became Bolio’s lawyer and, following relief from default, filed an
answer and, as pertinent here, a cross-complaint. The cross-complaint had three causes
of action, including breach of fiduciary duty and professional negligence, and it alleged
several ethical violations by Lanz of the Rules of Professional Conduct and the Business
and Professions Code, including that he acted with “moral turpitude.”
By motions, Lanz defeated Bolio’s claims in the cross-complaint, leaving extant
only Lanz’s claim against Bolio. That claim went to trial, with Lanz obtaining a
complete victory, in a statement of decision highly critical of Bolio’s conduct.
Lanz then sued Goldstone for malicious prosecution. Goldstone filed an anti-
SLAPP motion to dismiss. The trial court denied it, concluding that Lanz met his burden
1
Marvin v. Marvin (1976) 18 Cal. 3d 660.
1
under prong two of the anti-SLAPP analysis, demonstrating a probability of success on
all three elements of malicious prosecution. We reach the same conclusion, and we
affirm.
BACKGROUND
The Parties, the Marvin Action, and the Settlement
Bolio and Denis Ronchelli were involved in a relationship that began in 1991 and
ended in 2009. They were not married. They apparently lived in a house on King Street,
Santa Rosa, a house owned by Ronchelli. He also owned a house in Modesto. The
record does not reveal much else about either of them or their relationship. One thing we
do know, because Goldstone tells us, is that Bolio is a CPA, apparently one who is, as
Goldstone’s counsel admitted at oral argument, “internationally certified.”
In October 2009, Bolio retained Lanz to represent her in an action against
Ronchelli, in connection with which Bolio signed an “Attorney-Client Contingency Fee
Contract” (contract). The contract provided that Bolio was “hiring us to represent you in
the matter of your claims against Denis W. Ronchelli, arising out of your relationship
with him over the past 18 years. . . . If a court action is filed, we will represent you until
a settlement or judgment, by arbitration or trial, is reached, and in connection with any
appropriate post-trial motions.”
The contract also provided as follows:
“6. LEGAL FEES AND COSTS. We will only be compensated for legal
services if a recovery is obtained for you. If no recovery is obtained, you will be
obligated to pay only for costs, disbursements and expenses as described below.
“The fees to be paid by you to us will be 33 1/3 % (thirty-three and one-third
percent) of the total recovery. Afterward, all unpaid costs and disbursements set forth in
Paragraph 8, will be subtracted and the remainder paid to you. In the event that the case
should go to trial or arbitration, or within 60 days from the first scheduled trial date or
arbitration date, the fees to be paid by you to us will be 40% (forty percent) of the total
recovery. [¶] . . . [¶]
2
“7. NEGOTIABILITY OF FEES. The rates set forth above are not set by law,
but are negotiable between an attorney and client.”
The contract also included a provision by which Bolio granted Lanz a lien against
any prospective recovery securing payment of the sums owed him. Finally, the
agreement contained the express statement that Lanz does “not maintain errors and
omissions (malpractice) insurance.”
Lanz filed suit on behalf of Bolio, a Marvin action against Ronchelli: Hebe
Garcia-Bolio v. Denis Ronchelli, et al., Sonoma County Superior Court No. SCV-246349
(Marvin action). The record contains little of what occurred in the Marvin action. What
we do know is that it proceeded to trial in August 2010, and that it was settled on the
third day of trial. The settlement was overseen by the trial judge (the Honorable Elaine
Rushing), and was memorialized in a written “Settlement Agreement and Order” signed
by the parties and approved by Judge Rushing on August 30, 2010.
The settlement agreement provided that Ronchelli would pay Bolio $10,000 cash,
pay off the $106,000 mortgage balance on the Modesto house, and transfer ownership of
that house to Bolio. In exchange, Bolio agreed to dismiss her causes of action and vacate
the house on King Street where she had been residing.
According to Lanz’s later-filed declaration, in agreeing to the settlement, Bolio
advised Lanz that the fair market value of the Modesto house was $106,000 and that she
wanted that house, not its cash equivalent, as part of the settlement. Bolio’s version of
events would be different, claiming, among other things, that the Modesto house was
worth $80,000 and, moreover, had some $20,000 in deferred maintenance.
Within days of the August 30 settlement, the differences between Lanz and Bolio
had resulted in several pieces of correspondence between them, including these:
On September 9, Bolio sent Lanz an e-mail asserting that (1) they had a
subsequent agreement to cap his contingency fee percentage at 33 percent; (2) the value
of the Modesto house was far less than $106,000; and (3) Lanz later promised he would
shift his fees and costs to Ronchelli and not seek to recover them from Bolio. It bears
3
noting that Bolio’s lengthy e-mail made no claim about, or criticism of, any aspect of
Lanz’s handling of her case.
Lanz responded with two letters on September 15. One letter began as follows:
“The following [is] the estimated settlement statement you requested, for your case
against Denis Ronchelli. I cannot provide a statement of actual figures, as first of all, the
case is not completed in that the required transactions have not yet been completed.
Second, the value of the home and Denis’s waiver of his request for reimbursement, can
only be estimated. With that in mind, the statement being provided is an estimate of what
I believe the fees to be. The issue of resolving the value of the recovery, is why I advised
you to consult with separate counsel.” The letter then went on to provide an itemized
breakdown of various values.
The other letter provided in pertinent part as follows:
“This letter shall confirm that pursuant to your request, I obtained an extension of
the deadline for you to advise Denis Ronchelli if he needs to proceed in giving the
[Modesto house] tenant, notice to vacate, until September 11, 2010 and that I’ve advised
you of my need to know, at least four times now, if you want him to follow through with
giving him notice. As of this date, you have not given me an answer on this issue and the
deadline has now passed. . . .”
“This letter shall also confirm that I’ve advised you we have an issue to resolve,
regarding the payment of my fees and costs. The issue being that the fees to be paid,
have to be based on what we understand or believe the value of the home and the value of
the waiver from Denis, to be. This letter shall also confirm that immediately after we
signed the settlement agreement in this case, I advised you to consult with separate
counsel on the issue of my fees, as we may disagree on the values of the home and the
waiver. Further, that I also offered to advance the fees for you to have such a
consultation. As of this date, you have not told me if you plan to consult with separate
counsel and/or if you need me to advance the fees to do so. I would appreciate you
letting me know at your earliest convenience.
“Thank you for your time and consideration in this matter.”
4
Thereafter, Lanz filed in the Marvin action a notice of attorney lien in the amount
of $60,000 against the settlement proceeds, claiming it was for fees and costs. Lanz also
filed an action against Bolio.
Lanz’s Action Concerning the Fee
On November 1, 2010, Lanz filed a complaint, and on December 1, an amended
complaint, against Bolio concerning the fee dispute. It alleged two claims, for breach of
contract and a common count.
Bolio was served, but did not file a response, and on January 11, 2011, Lanz filed
a request for entry of default.
Sometime in early February, probably the 2nd, Bolio contacted Goldstone to
represent her. The record does not contain any evidence from Goldstone as to what he
did in early February. The record does contain this evidence from Lanz:
“[O]n or about February 4, 2011 [Lanz] was contacted by Bolio’s new attorney,
Peter Goldstone (‘Goldstone’), who demanded that I voluntarily set aside Bolio’s default.
[¶] When I declined, Goldstone personally delivered an unfiled cross-complaint to my
office on February 14, 2011 and threatened to file the cross-complaint unless I dismissed
my complaint against Bolio and walked away from my unpaid fees and unreimbursed
costs. Goldstone made it clear to me that the threatened litigation would be so expensive
and protracted that the cost to defend the cross-complaint would exceed the amounts
owed to me under the contingent fee agreement. In this regard, Goldstone rejected my
suggestion that we submit all disputes to less expensive binding arbitration and told me
that he would not rule out the possibility of prosecuting an appeal from any judgment. In
order to remind me that I would need to defend the cross-complaint at my own expense,
Goldstone asked me if I was insured even though Goldstone knew from the contingent
fee agreement (which was attached to the unfiled cross-complaint) that I did not carry
malpractice insurance.”2
2
The record does not reveal when the cross-complaint sent to Lanz on
February 14 was prepared. The record does contain Bolio’s declaration signed the day
before, February 13, where she testified that “[s]hould discovery yield facts sufficient to
5
Lanz did not capitulate, or even agree to lift the default. So, on behalf of Bolio,
Goldstone filed a motion for relief from default. The motion was accompanied by a four-
page declaration of Bolio that described for several paragraphs her case against Ronchelli
and the dispute about the fee. Not once in those four pages is there any mention that
Lanz in any way mishandled her case.
On March 29, the motion for relief from default was granted, and the default
vacated. On April 1, Goldstone filed Bolio’s answer to the complaint. And a cross-
complaint.
Bolio’s Cross-Complaint Against Lanz
Bolio’s cross-complaint against Lanz alleged three causes of action: (1) breach of
fiduciary duty; (2) declaratory relief; and (3) professional negligence. The cross-
complaint was 10 pages long, containing 42 paragraphs, nine of which were “facts
common to all causes of action” setting forth generally the history described above. The
cross-complaint then turned to the specific cause of action for breach of fiduciary duty,
and alleged the following:
“18. As her attorney and fiduciary, Lanz owed fiduciary duties to Hebe of
undivided service, loyalty and integrity in representing Hebe in preparing and litigating
her case. The relation between attorney and client is a fiduciary relation of the very
highest character and binds the attorney to most conscientious fidelity, including good
faith, absolute and perfect candor, openness, honesty, and the absence of any deception or
concealment, however slight. Hebe is informed and believes and thereon alleges that
included in such duties were the duty to avoid conflicts of interest, and to make full and
complete disclosure of all pertinent facts known by Lanz, the duty to properly investigate
all the consequences and damages caused by Lanz’s and Hebe’s acts and omissions,
including but not limited to the settlement of the lawsuit and payment of fees from the
proceeds therefrom. [¶] . . . [¶]
so plead, I may seek leave of this Court to cross-complain[] against Lanz for breach of
fiduciary duty and professional negligence.”
6
“20. Hebe is informed and believes and thereon alleges that commencing in or
about October 2010, Lanz . . . willfully and intentionally breached [his] fiduciary duties
toward Hebe, in the following particulars:
“a. Lanz failed to properly prepare for the trial;
“b. Lanz failed to adequately advise and inform Hebe of the consequences of
entering into the Settlement Agreement;
“c. Lanz placed his own financial interests in the outcome of this case before the
financial interests of Hebe and acted counter to Hebe’s best interests and in his own best
interest;
“d. Lanz failed to properly listen to Hebe’s concerns, advice, and counsel on
substantive matters;
“e. Lanz acted in a coercive manner with moral turpitude when he persuaded
Hebe to enter into a settlement agreement that was in Lanz’s best interest but not in
Hebe’s best interest;
“f. Lanz failed to properly represent and protect Hebe at trial and in the
negotiation of the settlement agreement;
“g. Cross-Defendants’ conduct yet to be discovered.
“21. In doing the acts herein alleged, and by failing to communicate with Hebe,
and failing to properly prepare and investigate the case, Cross-Defendants failed to
comply with the standards of conduct established by the requirements of the Rules of
Professional Conduct, including, but not limited to, Rules 3-110, 3-300, and 3-500.
“22. As an attorney who secured payment of fees by acquiring a charging lien
against his client’s future judgment or recovery, Lanz acquired an interest adverse to his
client, Hebe, and so was required to comply with the requirements of Rules of
Professional Conduct Rule 3-300. In relevant part, this required that Lanz advise Hebe in
writing that she was entitled to seek the advice of an independent lawyer of her choice
and be given a reasonable opportunity to seek that advice and that Hebe consent in
writing to the terms of that acquisition.
7
“23. Within the body of the Fee Agreement the language granting to Lanz a
charging lien against the proceeds from the case or against any property of Hebe fails to
advise in [sic] Hebe in writing (or at all) that she could seek the advice of an independent
lawyer of her choice in deciding whether to enter into an attorney’s fees agreement
containing a charging lien. Hebe is informed and believes, and thereupon alleges that the
lien asserted by Lanz is a charging lien in violation of Business and Professions Code
section 6147, subd. (a)(4); Rules of Professional Conduct Rule 3-300 and the case law
interpreting and applying said Statute and Rule.
“24. Lanz has breached his fiduciary duty to Hebe by including within his Fee
Agreement a charging lien that is not drawn in conformity with California law and
thereby placing his own interest above the interest of his client.
“25. The conduct of said Cross-Defendants herein alleged fell below the
standards of professional conduct for attorneys and was in breach of the Cross-
Defendants’ fiduciary duties of full and fair disclosure, loyalty, candor and diligence, and
constituted a material breach of said fiduciary duties.
“26. By doing the acts set forth above willfully and intentionally, either for his
own benefit or as ostensible agent for Hebe, Lanz failed to comply with the standards
of conduct established by the Rules of Professional Conduct including RPC Rules 3-300,
3-310 and 3-500, and Business and Professions Code Sections 6068 and 6106. Lanz’s
conduct fell below the standards of professional conduct for attorneys and was in breach
of his professional and fiduciary duties herein alleged. [¶] . . . [¶]
“29. Lanz knowingly and intentionally engaged in such actions with an intent to
cause such harm to Hebe, or with reckless disregard for the consequences of such actions.
Said actions by Lanz were despicable, and were undertaken for the purpose of inducing
Hebe to act in a manner contrary to her own interests and in the interests of Lanz and
thereby procuring a benefit for Lanz, to the detriment of Hebe, and causing such harm,
with malice, fraud and oppression, as defined in Section 3294 of the Civil Code, and by
reason thereof Hebe is entitled to an award of punitive and exemplary damages against
Lanz, in an amount according to proof.”
8
Those charging allegations were incorporated into the second and third causes of
action.
In sum, each cause of action alleged that with “moral turpitude” Lanz placed “his
own financial interests” before Bolio’s and breached his fiduciary and professional duties
in several ways: (1) by including within the contingency fee agreement an “[in]valid”
charging lien “in violation” of rule 3-300 of the Rules of Professional Conduct; (2) by
“violat[ing]” the disclosure requirements contained in Business and Professions Code
section 6147, subdivision (a)(4); (3) by “persuad[ing]” Bolio to enter into a settlement in
which Bolio “gave up” her “[‘community property’] ownership” of Ronchelli’s Santa
Rosa property and obtained “no recovery” as a result; and (4) by “persuad[ing]” Bolio to
enter into a settlement rather than completing trial and “procuring” a “better result . . . at
substantially less expense.”
Lanz filed an answer to the cross-complaint, and the discovery began. While the
record does not reflect all that happened thereafter, we do know that at some point the
parties tried to resolve the dispute. To no avail.
On September 19, 2011, Lanz filed a motion for summary adjudication, asserting
that all three claims in Bolio’s cross-complaint lacked merit. The motion was set for
hearing on December 6. The Superior Court of Sonoma County, Local Rules, rule 5.4
requires the moving and opposing parties to “make a reasonable and good faith attempt to
informally resolve . . . motion[s]” for summary adjudication. Despite that, according to
Lanz, Goldstone ignored Lanz’s request to meet and confer, and indicated he would
continue to prosecute the cross-complaint and threatened to conduct costly discovery,
“cost[ing] much more than [the action’s] . . . eventual benefit,”—all, according to Lanz,
to “squeeze a settlement . . . before the summary-adjudication motion could be
heard . . . .”
Whatever Goldstone’s motivation, his threats apparently did not come to pass.
Rather, according to Lanz, Goldstone recommended that Bolio declare bankruptcy. And
she did, on November 7: In re Hebe Garcia-Bolio, United States Bankruptcy Court,
Eastern District of California, No. 11-93911 (bankruptcy action). Attorney Patrick
9
M. Kolasinski represented Bolio in the bankruptcy action, not Goldstone. The
bankruptcy action caused the Lanz-Bolio litigation to be stayed, which stay lasted until
February 24, 2012, when the bankruptcy closed. Pertinent here, Bolio did not list the
breach of fiduciary duty claim or the professional negligence claim in the bankruptcy
schedule.
Following the lifting of the stay, Lanz filed a motion to file a second amended
complaint in his case against Bolio, to assert only one cause of action, for declaratory
relief. Then, on March 12, Lanz filed a motion for judgment on the pleadings as to the
breach of fiduciary duty and professional negligence claims in Bolio’s cross-complaint,
on the basis that those claims failed under the doctrine of judicial estoppel because Bolio
failed to disclose the claims in her bankruptcy schedules.
Two days later, March 14, Lanz moved ex parte to have his previously filed
motion for summary adjudication reset for briefing and hearing.
That same day, Goldstone substituted out as Bolio’s attorney. She was now in pro
per.
Lanz’s motions for judgment on the pleadings and summary adjudication came on
for hearing on June 28, before the Honorable Arthur Wick. Judge Wick granted
judgment on the pleadings, holding that Bolio was estopped from pursuing her claims for
breach of fiduciary duty and negligence because she failed to include them as potential
assets in her bankruptcy schedules. He also granted Lanz’s motion for summary
adjudication of Bolio’s declaratory relief cause of action. Bolio’s cross-complaint was
thus dismissed in its entirety.
What remained was Lanz’s original dispute with Bolio, now in a single cause of
action for declaratory relief.
Trial on Lanz’s Complaint
On November 26 and 27, 2012, a court trial before Judge Wick was held on
Lanz’s case. As Judge Wick described it, “The single cause of action for declaratory
relief seeks only a judicial declaration as to the lien and deed of trust at issue and a claim
10
for attorney fees and costs in the present action based on the underlying contract, the
Attorney-Client Contingency Fee Contract . . . .”
On January 23, 2013, Judge Wick filed a six-page statement of decision, a
decision that can only be described as a total victory for Lanz. The decision held that
Lanz had a valid lien; that the fair market value of the Modesto house was $106,000; and
that Lanz was to recover $48,824.20 for his attorney fee and costs.
In reaching his decision, Judge Wick made several observations and holdings
pertinent here, including these:
“In keeping with this court’s Trial Order, plaintiff’s evidence consisted of a rather
straight forward presentation of the situation involving these two parties and the
underlying litigation, with representation of the defendant by plaintiff herein.
“The shorter version of the facts indicates that plaintiff served as the attorney for
defendant herein in her Marvin action filed against her long time paramour. That matter
went to trial and during trial the entire Marvin action was settled.
“As soon as the underling [sic] settlement was reached and approved by the court,
defendant fired plaintiff as her attorney. Defendant immediately asserted that she
recovered nothing by way of the Marvin action, despite receiving real property and cash
as a result of the subject settlement. Defendant’s assertion is patently false.
“Thereafter, by way of the present action plaintiff seeks to recover his fees and
costs incurred as defendant’s counsel in the Marvin matter.
“Plaintiff served defendant herein with a Notice of Attorney Lien. Thereafter,
sensing a problem with the lien, attorney Jilka, on behalf of defendant Ronchelli in the
Marvin action, prepared a Motion for Instructions Regarding Settlement Agreement and
to Expunge Lis Pendens. Said motion was filed on November 16, 2010.
“The subject motion was heard by Judge Rushing and on December 21, 2010
Judge Rushing issued a written ruling ordering among other things that:
“ ‘1. Prior to conveyance of the real property at 505 Kimble Street, Modesto,
California to plaintiff, defendant Denis Ronchelli shall give a deed of trust to attorney
Lanz which secures Mr. Lanz’s attorneys fee lien against this property. After delivery of
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this deed of trust to Mr. Lanz, defendant Ronchelli shall deliver a deed to this property to
plaintiff.’
“It appears to this court that immediately thereafter [defendant] instituted a
campaign against her former attorney, attacking him both personally and professionally.
This unwarranted assault continues to this day.[3]” (Fns. omitted.)
Judge Wick’s decision then continued:
“From a careful review of all testimony and the supporting exhibits two
observations became readily apparent to this court: first, plaintiff handled the underlying
Marvin action appropriately, including the settlement. It does not appear to this court that
the host of criticisms leveled by defendant at plaintiff herein is valid. And, second,
defendant has attempted to rewrite what did actually occur in the underling [sic] matter to
suit her current needs, wants, or desires. Accordingly, this court finds defendant’s
testimony incredulous, inflated, spiteful, and lacking all persuasive value.[4]” Judge
Wick’s decision concluded with these two paragraphs:
“Two other issues of importance are in need of being addressed here. First, it
appears plaintiff offered defendant an opportunity to arbitrate the entire dispute herein.
Neither defendant, nor her new attorney of record, chose to accept plaintiff’s offer to
arbitrate the fee dispute.
“Second, defendant claims her bankruptcy action bars plaintiff’s right to recover
herein. The testimony on this topic clearly supports plaintiff’s position on this issue and
this court could not find any evidence supporting defendant’s claim of avoidance or
3
“During trial defendant repeatedly called her former attorney a liar and deceitful,
and tried to cast him as a conspirator in all things wrong in defendant’s life. Frankly,
defendant’s obvious hate and disrespect for her former attorney cast considerable doubt
on her credibility as a witness herein.”
4
“As an example of this spiteful and illogical testimony, defendant testified that
the property value of the home she was given in settlement of the underlying Marvin
action was substantially less than that ascribed to it by a licensed real estate appraiser
during this trial. However, in prior emails authored by defendant she cited its value as
exactly the same as its appraised value. Her efforts to disavow this evidence only made
her less credible in the eyes of the court.”
12
discharge of plaintiff’s lien and/or debt in the subject bankruptcy action.” (Fn. omitted,
italics added.)
What occurred next was Lanz’s malicious prosecution suit.
Lanz Sues Goldstone for Malicious Prosecution
On September 26, 2013, Lanz sued Goldstone for malicious prosecution.
Goldstone filed an answer, followed by a special motion to strike pursuant to Code of
Civil Procedure section 425.16 (SLAPP or anti-SLAPP motion), set for January 23, 2014.
The anti-SLAPP motion was accompanied by a five-page declaration of Goldstone and a
declaration of his attorney attaching several documents. The motion also requested
judicial notice of 18 documents.
Lanz filed opposition, Goldstone a reply, and the anti-SLAPP motion came on for
hearing before the Honorable Gary Nadler.
On March 13, Judge Nadler issued a comprehensive, eight-page order denying the
motion, from which Goldstone filed a timely appeal.
DISCUSSION
1. SLAPP Law and the Standard of Review
Subdivision (b)(1) of section 425.16 of the Code of Civil Procedure provides that
“[a] cause of action against a person arising from any act of that person in furtherance of
the person’s right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has established that there is
a probability that the plaintiff will prevail on the claim.” Subdivision (e) of section
425.16 elaborates the four types of acts within the ambit of a SLAPP.
A two-step process is used for determining whether an action is a SLAPP. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity, that is, by demonstrating
that the acts underlying the plaintiff’s complaint fit one of the categories spelled out in
section 425.16, subdivision (e). If the court finds that such a showing has been made, it
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must then determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88 (Navellier).)
Here, the parties agreed that Lanz’s malicious prosecution case came within the
first step of the anti-SLAPP analysis. (See Daniels v. Robbins (2010) 182 Cal. App. 4th
204, 215 [“The plain language of the anti-SLAPP statute dictates that every claim of
malicious prosecution is a cause of action arising from protected activity because every
such claim necessarily depends upon written and oral statements in a prior judicial
proceeding.”].)
So, all the briefing and Judge Nadler’s analysis addressed only the second step in
the SLAPP analysis, as will we. And as to how we decide that step, we set forth the
governing law in Grewal v. Jammu (2011) 191 Cal. App. 4th 977, 989–990 (Grewal):
“We decide the second step of the anti-SLAPP analysis on consideration of ‘the
pleadings and supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not
weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as
true all evidence favorable to the plaintiff and assess the defendant’s evidence only to
determine if it defeats the plaintiff’s submission as a matter of law.’ (Overstock.com, Inc.
v. Gradient Analytics, Inc. (2007) 151 Cal. App. 4th 688, 699–700.)
“That is the setting in which we determine whether plaintiff has met the required
showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc.,
supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to
show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty
Oil Co. (2000) 23 Cal. 4th 429, 438, fn. 5.) In the words of other courts, plaintiff needs to
show only a case of ‘minimal merit.’ (Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP (2005) 133 Cal. App. 4th 658, 675, quoting Navellier v. Sletten
(2002) 29 Cal. 4th 82, 95, fn. 11.)
“ . . . As the Supreme Court early on noted, the anti-SLAPP statute operates like a
‘motion for summary judgment in “reverse.” ’ (College Hospital, Inc. v. Superior Court
(1994) 8 Cal. 4th 704, 719.) Or, as that court would later put it, ‘Section 425.16 therefore
14
establishes a procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation. [Citation.]’ (Varian
Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 192; accord, Taus v. Loftus
(2007) 40 Cal. 4th 683, 714.)
“Numerous Courts of Appeal have articulated the test in similar language. (See
Tichinin v. City of Morgan Hill (2009) 177 Cal. App. 4th 1049, 1062 [‘a standard “similar
to that employed in determining nonsuit, directed verdict or summary judgment
motions” ’]; Yu v. Signet Bank/Virginia (2002) 103 Cal. App. 4th 298, 317 [‘plaintiff’s
burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a
motion for summary judgment’]; Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 907
[‘similar to the standard used in determining motions for nonsuit, directed verdict, or
summary judgment’].)”
With those principles in mind, we turn to an analysis of whether Lanz established
a probability that he will prevail on his claim for malicious prosecution, an analysis we
make on de novo review. (Grewal, supra, 191 Cal.App.4th at p. 988.) And conclude that
he did.
2. The Law of Malicious Prosecution
“To establish a cause of action for the malicious prosecution of a civil proceeding,
a plaintiff must plead and prove that the prior action (1) was commenced by or at the
direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor
[citations]; (2) was brought without probable cause [citations]; and (3) was initiated with
malice [citations].” (Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 50
(Bertero).)
Bertero went on to explain the two reasons why malicious prosecution is
actionable: “The malicious commencement of a civil proceeding is actionable because it
harms the individual against whom the claim is made, and also because it threatens the
efficient administration of justice. The individual is harmed because he is compelled to
defend against a fabricated claim which not only subjects him to the panoply of
psychological pressures most civil defendants suffer, but also to the additional stress of
15
attempting to resist a suit commenced out of spite or ill will, often magnified by
slanderous allegations in the pleadings.” (Bertero, supra, 13 Cal.3d at pp. 50–51.) And
“[t]he judicial process is adversely affected by a maliciously prosecuted cause not only
by the clogging of already crowded dockets, but by the unscrupulous use of the courts by
individuals ‘. . . as instruments with which to maliciously injure their fellow men.’ ”
(Id. at p. 51.)
And, of course, the claims of malfeasance are all in the public record. (See
Sagonowsky v. More (1998) 64 Cal. App. 4th 122, 132: [“The remedy of a malicious
prosecution action lies to recompense the defendant who has suffered out of pocket loss
in the form of attorney fees and costs, as well as emotional distress and injury to
reputation because of groundless allegations made in pleadings which are public
records.”]).
3. Lanz Demonstrated a Probability of Prevailing on Malicious Prosecution
A. Favorable Termination
Goldstone contends that Lanz cannot demonstrate a probability of prevailing
because he cannot demonstrate any, let alone all, of the three elements of the tort,
beginning with the argument that Lanz cannot establish favorable termination.
Following recitation of some boilerplate principles of favorable termination,
Goldstone begins his argument with focus on the fact that two of the three claims in the
cross-complaint—breach of fiduciary duty and professional negligence—were dismissed
on the basis that they were not included in Bolio’s bankruptcy filings. And, Goldstone
concludes, “Applying the above principles to the case at bench, as a matter of law, LANZ
cannot establish a favorable termination of Bolio’s causes of action for malpractice and
breach of fiduciary duty. The court in the Underlying Action dismissed Bolio’s
malpractice claims on LANZ’s motion for judgment on the pleadings on the single
ground that Bolio failed to identify the Cross-Complaint in her bankruptcy petition and,
thus, was procedurally barred from pursuing those claims in Superior Court.”
To begin with, we fail to see the significance of the argument, as the third claim in
the cross-complaint was resolved on the merits, as Goldstone essentially concedes. This
16
ends the inquiry, as expressly held by numerous cases, including Bertero, where the court
held that where several claims are advanced in the underlying action, each must be based
on probable cause. As the court described it, “In arguing against the application of
Raboff and Singleton in the instant circumstances, NGC urges ‘[t]he test should be
whether [defendants] had reasonable grounds to seek the relief they sought in their Cross-
Complaints, not whether they had such grounds for asserting each of the three theories
contained in the Cross-Complaint.’ We disagree. . . . We see no reason for permitting
plaintiffs and cross-complainants to pursue shotgun tactics by proceeding on counts and
theories which they know or should know to be groundless.” (Bertero, supra, 13 Cal.3d
at p. 57.)
This rule was reaffirmed in Crowley v. Katleman (1994) 8 Cal. 4th 666 (Crowley),
a case where a decedent’s wife contested his will that left the bulk of the estate to his own
attorney, a contest that asserted six separate grounds. The action terminated in favor of
the attorney, and the will was admitted to probate. The attorney then brought a malicious
prosecution action against the wife and her attorneys, alleging that defendants had acted
without probable cause in asserting five of the six grounds in the will contest.
Defendants demurred, asserting that probable cause existed for the sixth ground for
contesting the will, thus barring the malicious prosecution action. The trial court
sustained the demurrer and dismissed the action. The Supreme Court reversed,
“reaffirm[ing] the rule of Bertero. . . .” (Id. at p. 695.) (Also see Franklin Mint
Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal. App. 4th 313, 333 [“[a] claim for
malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based
upon only some of the causes of action alleged in the underlying lawsuit.”].)
Goldstone’s opening brief does not even mention Bertero, and relies on one case,
Friedberg v. Cox (1987) 197 Cal. App. 3d 381, 386–387 (Friedberg),5 which, however
myopically, observed that Bertero was based on “facts distinctly different,” and applied
the “primary right” theory to hold that the relevant criterion was the judgment as a whole.
5
For that matter, Goldstone’s opening brief mentions Crowley only as
“disagreeing with Friedberg on other matters.”
17
Lanz, of course, relies on Bertero and Crowley, and all Goldstone’s reply brief says is
that Lanz “mischaracterizes the holdings,” a description Goldstone then spends the next
four pages in a strained effort to justify. We are dismayed by Goldstone’s disregard of
the law. For example:
Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 589–594 (Mabie), discussed this issue
for over five pages, confirming the holdings in Bertero and Crowley and other cases.
Lanz cites Mabie five times in his respondent’s brief. Goldstone’s reply does not even
mention the case.
Goldstone also ignores the holding of our colleagues in Division Four, in Sierra
Club Foundation v. Graham (1999) 72 Cal. App. 4th 1135 (Sierra Club). There, in
affirming a judgment on a jury verdict for plaintiff in a malicious prosecution action, the
court observed as follows: “Our Supreme Court in Crowley has pointed out that it does
not follow from Friedberg’s primary right theory that a ruling striking two out of three
theories of liability is not at least a ‘ “partial favorable termination” ’ for purposes of
malicious prosecution. (Crowley v. Katleman, supra, 8 Cal.4th at p. 686.) ‘Whether such
a termination is sufficient to support a malicious prosecution action is, again, a question
of policy under the substantive law of that tort.’ (Ibid.) [¶] Stated somewhat differently,
the malicious prosecution plaintiff need not demonstrate that the entire underlying
proceeding was utterly groundless. Groundless charges coupled maliciously and without
probable cause with well-founded causes are no less injurious for the coupling.
[Citation.] Thus, a malicious prosecution plaintiff is not precluded from establishing
favorable termination where severable claims are adjudicated in his or her favor.
[Citation.]” (Sierra Club, supra, 72 Cal.App.4th at pp. 1152–1153.)
To close this discussion, we quote from Lanz’s respondent’s brief, which argued
as follows: “Contrary to Goldstone’s argument in his Opening-Brief (page; 2), a
malicious-prosecution action may be maintained where only one of several factual or
legal theories in a ‘single cause of action’ (Kreeger vs. Wanland (2006) 141 Cal. App. 4th
826, 834)—including a cause of action for declaratory relief (Camarena vs. Sequoia
18
(1987) 190 Cal. App. 3d 1089, 1097)—lacks probable cause.” Neither case is mentioned
in Goldstone’s reply.
Beyond all that, Goldstone’s fundamental argument—that the basis for the
dismissal of two of the three claims was procedural, and therefore not a favorable
termination—is wrong.
In Casa Herrera, Inc. v. Beydoun (2004) 32 Cal. 4th 336, the trial court granted
judgment on the pleadings for the defendant in a malicious prosecution, holding that the
dismissal of the underlying action based on the parol evidence rule was not a favorable
termination. The Supreme Court reversed, beginning its analysis as follows: “To
determine ‘whether there was a favorable termination,’ we ‘look at the judgment as a
whole in the prior action . . . .’ [Citation.] ‘It is not essential to maintenance of an action
for malicious prosecution that the prior proceeding was favorably terminated following
trial on the merits.’ [Citation.] Rather, ‘[i]n order for the termination of a lawsuit to be
considered favorable to the malicious prosecution plaintiff, the termination must reflect
the merits of the action and the plaintiff’s innocence of the misconduct alleged in the
lawsuit.’ [Citation.]” (Id. at pp. 341–342.)
Our colleagues described it this way: “When the proceeding terminates other than
on the merits, the court must examine the reasons for termination to see if the disposition
reflects the opinion of the court or the prosecuting party that the action would not
succeed.” (Sierra Club, supra, 72 Cal.App.4th at p. 1149.)
And should there be a conflict as to the circumstances of the termination, “the
determination of the reasons underlying the dismissal is a question of fact.” (Ross v. Kish
(2006) 145 Cal. App. 4th 188, 198.) In light of this, it is perhaps enough to say that under
the reverse summary judgment analysis required under the SLAPP analysis, this ends the
matter. But even if not, the termination here was favorable to Lanz.
Appropriately analyzed, one could conclude that the failure to list the claims on
the bankruptcy schedule reflected Bolio’s—or perhaps her bankruptcy attorney’s—
opinion “that the action would not succeed.” (Sierra Club, supra, 72 Cal.App.4th
at p. 1149; see also Gottlieb v. Kest (2006) 141 Cal. App. 4th 110, 116.) Maybe the claims
19
were not listed on the schedule because Bolio’s bankruptcy attorney did not want to be
responsible for perpetuation of a malicious prosecution. (See Zamos v. Stroud (2004)
32 Cal. 4th 958, 966–968.)
Regardless, the claims were in essence abandoned, and such abandonment can be
favorable termination, as is generally held where a voluntary dismissal is filed.
(MacDonald v. Joslyn (1969) 275 Cal. App. 2d 282, 289; Weaver v. Superior Court (1979)
95 Cal. App. 3d 166, 185.) Or where an action has been dismissed for failure to bring it to
trial within the statutory period for discretionary dismissal, as this reflects on the merits
of the action, a reflection that “arises from the natural assumption that one does not
simply abandon a meritorious action once instituted.” (Minasian v. Sapse (1978)
80 Cal. App. 3d 823, 827.) Or a dismissal due to discovery sanctions, as it may reflect a
“concession [plaintiff’s] claims . . . lacked merit.” (Ross v. Kish, supra, 145 Cal.App.4th
at p. 192; Daniels v. Robbins, supra, 182 Cal. App. 4th 204, 217–218.)
B. Lack of Probable Cause
If there is “ ‘no dispute as to the facts upon which an attorney acted in filing the
prior action, the question of whether there was probable cause to institute that action is
purely legal.’ [Citation.] ‘The resolution of that question of law calls for the application
of an objective standard to the facts on which the defendant acted.’ [Citation.]”
(Daniels v. Robbins, supra, 182 Cal.App.4th at p. 222.) So, it is often said that “the
existence or absence of probable cause has traditionally been viewed as a question of law
to be determined by the court, rather than a question of fact for the jury. . . . [¶] . . . [It]
requires a sensitive evaluation of legal principles and precedents, a task generally beyond
the ken of lay jurors . . . .” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d
863, 875 (Sheldon Appel).)
On the other hand, when there is a dispute as to the state of the defendant’s
knowledge and the existence of probable cause turns on resolution of that dispute, there
becomes a fact question that must be resolved before the court can determine the legal
question of probable cause. (See Sheldon Appel, supra, 47 Cal.3d at p. 881 [“[T]he jury
must determine what facts the defendant knew . . . .”].)
20
Here, there is necessarily a “dispute” as to the state of Goldstone’s knowledge
before he filed the cross-complaint, especially as he put in no evidence to show what he
knew, or what he did, or even to whom he spoke. Nothing.
We note that Goldstone’s brief asserts this: “In evaluating the viability of the
causes of action, GOLDSTONE also justifiably relied on his client’s sworn testimony
concerning the strength of her Marvin case (i.e., her oral agreement with Ronchelli that
he would provide for her financial well-being at the conclusion of their relationship in
exchange for Bolio providing her affection and domestic services during their
relationship), and her recollection of LANZ’s failures in prosecuting the Marvin Action.
(1 JA 44:7-11, 73:4-14, 74:4-14, 75:12–76: 16, 77:1-24, and 80:1-7; see also 1 JA 49 at
nos. 1, 6, 8, and 14; 1 JA 159:11–160:1; [citation].) Thus, given Bolio’s testimony and
circumstantial evidence of Ronchelli’s wealth, there clearly was probable cause to pursue
a cause of action that the settlement LANZ urged upon Bolio at the 11th hour during trial
was outside the realm of reasonableness. [Citation.] A settlement that required Bolio to
abandon any claim to the Santa Rosa home she had lived in for years in exchange for a
dilapidated home in Modesto and $10,000 in cash was highly questionable. Stated
another way, LANZ had not pled and cannot factually support a contention that the
malpractice claims were so lacking in merit that all reasonable attorneys would conclude
the claims lacked probable cause.”
As to this, we observe that the record references—JA 44, 49, 73–77, 80—all refer
either to deposition testimony Bolio gave on April 28, 2011 or her answers to
interrogatories, all necessarily after the cross-complaint was filed.
Two pages later, Goldstone’s brief asserts that he owed Bolio “a duty of zealous
representation,” and goes on to argue as follows:
“Courts must be mindful that attorneys ‘face an impossible dilemma if they are
subject to claims of malicious prosecution by opponents in litigation because they
vigorously represent their client, yet they are also subject to claims of legal malpractice
by their client if they fail to provide the vigorous representation to which the client is
entitled.’ [Citation.] Moreover, ‘[z]ealous representation sometimes requires an attorney
21
to go out on a limb, to be innovative and creative in fashioning theories of liability or
defense. Accordingly, an attorney needs only a reasonable and honest belief in the
viability of each theory and the evidence supporting that theory, not a conviction his
client will prevail, to justify filing a claim or defense.’ [Citation.]
“GOLDSTONE reviewed documentation, evidence, pleadings, and attended the
deposition of his client. After conducting such analysis of his case, GOLDSTONE
determined there was probable cause to pursue and maintain the Cross-Complaint.
GOLDSTONE had a reasonable and honest belief in the viability of each cause of action
and the factual basis for the claims. The law favors zealous representation, and allowing
LANZ’s malicious prosecution claim to proceed beyond this early pleading stage will
have the effect of chilling zealous representation.”
As indicated, Goldstone’s brief cites nothing in support of the claim in the second
paragraph that Goldstone “reviewed documentation, evidence, pleadings.” And the
record contains absolutely no support for the representation. Finally, and contrary to
Goldstone’s unsupported position here, we note the declaration he prepared for Bolio that
she signed on February 13, 2011, representing to the court that she might file claims
against Lanz “[s]hould discovery yield facts sufficient to so plead . . . .”
But even Goldstone’s unsupported representation does not support the accusations
and allegations with the most serious charges in the cross-complaint—Lanz’s violations
of the Rules of Professional Conduct. Specifically:
As quoted above, the cross-complaint accused Lanz of placing “his own financial
interests” before Bolio’s and that he breached his fiduciary and professional duties in
several ways, for example, by including within the contingency fee agreement an
“[in]valid” charging lien “in violation” of Rules of Professional Conduct, rule 3-300. But
Bolio’s only contract with Lanz was a “Contingency Fee Contract,” and no reasonable
attorney would assert a violation of rule 3-300 in that setting, as that rule does not apply
to a contingent fee agreement, as held in Plummer v. Day/Eisenberg, LLP (2010)
184 Cal. App. 4th 38. There, in a case decided almost a year before Goldstone filed the
cross-complaint, the Court of Appeal expressly held that a contingent fee agreement
22
“need not comply with rule 3-300” because the “ ‘inclusion of a charging lien in [an]
initial contingency fee agreement does not create an ‘adverse interest’ to the client’ ”
within the meaning of rule 3-300. (Id. at p. 49.)6
Likewise was there an issue of probable cause as to the allegation in the
cross-complaint that Lanz breached his fiduciary and professional duties by persuading
Bolio to enter into a settlement in which she gave up her ownership interest in
Ronchelli’s real property and obtained “no recovery” as a result. As thereafter explained
in Bolio’s responses to special interrogatories, this allegation was apparently predicated
on the supposition that the settlement required Bolio to “relinquish . . . all of her
community property,” causing Bolio to make “no affirmative recovery” but rather to
suffer a net “loss” from the settlement. But Marvin held that “[t]he provisions of the
Family Law Act do not govern the distribution of property acquired during a nonmarital
relationship” (Marvin, supra, 18 Cal.3d at p. 665), a rule confirmed many times since.
(Schafer v. Superior Court (1986) 180 Cal. App. 3d 305, 306–307; Friedman v. Friedman
(1993) 20 Cal. App. 4th 876, 883; Velez v. Smith (2006) 142 Cal. App. 4th 1154, 1175.)
In sum, there was no community property. And the facts are both houses were
owned by Ronchelli, who held title to both “as an unmarried man” his sole ownership
thus “presumed.” (Evid. Code, § 662.) Bolio contributed nothing to the down payments
on either house, nothing to the mortgage payments, and nothing to property taxes or
insurance. Bolio gave up nothing that reduced the value of the settlement.
As to the lack of probable cause concerning this, there is also express testimony
from Lanz’s attorney John Mavredakis, whose declaration was as follows: “Based on the
allegations of the cross-complaint, it was clear to me that Goldstone had conducted little
or no legal research prior to filing the cross-complaint. Within minutes of reviewing the
annotations to Rule of Professional Conduct 3-300, published in West’s Annotated
6
Indeed, in 2008, Division One of this court held that noncompliance with Rules
of Professional Conduct, rule 3-300 did not invalidate a contingent fee agreement or
“preclude[] an attorney from recovering [the agreement’s] specified contractual fee.”
(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal. App. 4th 1489, 1522–1523.)
23
Codes, I found Plummer v. Day/Eisenberg (2010) 184 Cal. App. 4th 38 which
conclusively holds that Rule 3-300 does not apply to a contingent fee agreement. I also
reviewed Marvin vs Marvin (1976) 18 Cal.3rd 660 which holds, in the second paragraph
of the first page of the opinion, that the provisions of the Family Law Act do not govern
the distribution of property acquired during a non-marital relationship. I found no settle
and sue case in which a plaintiff prevailed. [¶] Goldstone later confirmed to me his lack
of legal research prior to filing the cross-complaint. During a telephone conversation
I had with Goldstone on or about May 11, 2013, Goldstone confessed that he had not
known of the Plummer vs. Day/Eisenberg case prior to filing the cross-complaint.”
Bolio’s breach of fiduciary claim also accused Lanz of violating Business and
Professions Code section 6147, subdivision (a)(4). This, too, could not be supported, as
that section requires that a contingent fee agreement include “a statement that the fee is
not set by law but . . . negotiable between attorney and client.” Lanz’s fee agreement
here did just that.
As to the claim as to the inadequacy of the settlement, as Goldstone’s anti-SLAPP
motion conceded, the most Bolio could have recovered in her Marvin action was that she
was “arguably entitled to half of all of Ronchelli’s property.” Bolio, a CPA—and
ostensibly a person who would be aware of Ronchelli’s assets after 18 years together—
agreed on the third day of trial to a settlement by which she received $10,000 and the
Modesto house free and clear. Despite that, Goldstone asserted that there was a
“significant difference between what the settlement was and [the most Bolio] would have
gotten at trial: half of Ronchelli’s net worth.”
To begin with, there is no evidence in the record that Bolio ever told Goldstone
what Ronchelli’s net worth was, Goldstone’s unsupported representation
notwithstanding. Beyond that, there is certainly an issue as to whether Goldstone could
have reasonably believed Bolio’s estimate that Ronchelli’s net worth was more than
$1,000,000, and at the same time reasonably believed that Ronchelli’s Modesto house
was worth no more than $80,000. Indeed, after subtraction of the $106,000 unpaid
24
mortgage balance from Bolio’s $80,000 valuation, Ronchelli’s equity in the Modesto
house would amount to a negative $26,000.
We add one final observation about the allegations in the cross-complaint, this, the
specific accusation that Lanz acted with “moral turpitude.” As interpreted by the cases,
the definition of an “act of moral turpitude” includes that it is an act “contrary to honesty
and good morals” (Stanford v. The State Bar of California (1940) 15 Cal. 2d 721, 728); it
is something done “contrary to justice, honesty, or good morals.” (Jacobs v. State Bar
of California (1933) 219 Cal. 59, 64.) Whatever the definition of “moral turpitude,” it is
a serious charge, as witness Business and Professions Code section 6106, which provides
that the commission by an attorney of an act involving moral turpitude may constitute a
cause for disbarment or suspension. That is quite a charge to put in a public record.
Superimposed on all the above is that until the cross-complaint, there was no whiff
of any claim that Lanz had done anything wrong. Bolio’s lengthy e-mail to Lanz on
September 9, 2010 said nothing, nor did her four-page declaration prepared by Goldstone
in February 2011. It was as if the cross-complaint came out of thin air.
C. Malice
The final question is whether Lanz showed a probability of prevailing on the third
element of his malicious prosecution claim, malice.
Malice in connection with malicious prosecution “ ‘relates to the subjective intent
or purpose with which the defendant acted . . . .’ ” (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal. 4th 260, 292.) Malice “ ‘may range anywhere from open hostility to
indifference’ ”; it is not limited to “ ‘ill will toward plaintiff but exists when the
proceedings are [prosecuted] primarily for an improper purpose.’ ” (Ibid.; accord, Sierra
Club, supra, 72 Cal.App.4th at p. 1157.) As an element of malicious prosecution, malice
“reflects the core function of the tort, which is to secure compensation for harm inflicted
by misusing the judicial system, i.e., using it for something other than to enforce
legitimate rights and secure remedies to which the claimant may tenably claim an
entitlement.” (Drummond v. Desmarais (2009) 176 Cal. App. 4th 439, 451–452, italics
omitted.)
25
As Sierra Club elaborated: “Suits with the hallmark of an improper purpose are
those in which: ‘ “ . . . (1) the person initiating them does not believe that his claim may
be held valid; (2) the proceedings are begun primarily because of hostility or ill will;
(3) the proceedings are initiated solely for the purpose of depriving the person against
whom they are initiated of a beneficial use of his property; (4) the proceedings are
initiated for the purpose of forcing a settlement which has no relation to the merits of the
claim.” ’ [Citation.]” (Sierra Club, supra, 72 Cal.App.4th at p. 1157.)
Since malice concerns actual mental state, it necessarily presents a question of
fact. (Sheldon Appel, supra, 47 Cal.3d at p. 874.) Particularly apt here—a SLAPP case
with its reverse-summary-judgment analysis—is this observation by the dissenting justice
in Crowley: “malice is such a highly factual issue that it often precludes summary
disposition.” (Crowley, supra, 8 Cal.4th at p. 696 [Arabian, J., dissenting].) Indeed it
does, especially here, where the record contains abundant evidence to support Lanz on
the issue of malice.
We begin with Goldstone’s early threat to Lanz, on February 14, 2011, threatening
to file the enclosed cross-complaint unless Lanz gave up on his claim against Bolio.
There is nothing in the record—not in Goldstone’s declaration, not in Bolio’s—indicating
that he had any basis to make that threat. There is no evidence he did any research. No
evidence he reviewed any material. Indeed, no evidence he even talked to his new client
Bolio.
Goldstone was asked at deposition about this threat, if he recalled “a conversation
with Mr. Lanz in his office where you told Mr. Lanz that you were prepared to file the
cross-complaint unless he dismissed his complaint against Bolio and walked away from
his fees and costs?” This was Goldstone’s response: “I may have said that to him.
That’s a possibility, but I don’t recall a specific conversation. It was a negotiation tactic
that—something that I very well might have said.”
There is also the evidence of “bad blood” (to use Goldstone’s own words) that he
told Lanz’s new attorney Mavredakis about, in Goldstone’s April 25, 2011 letter: “Mr.
Mavredakis, I understand that you are new to this case and that the sins of the client
26
should not be visited upon his attorney. However, there is bad blood here, and my
extension of the time limits here is certainly far more conciliatory and generous than
anything we have had from the [LANZ] side, thus far.”
There is also no evidence that Goldstone did anything to research the applicable
law before making the serious charges of ethical violations alleged against Lanz, lack of
which indicates “a degree of indifference from which one could . . . infer malice.”
(Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal. App. 4th 1385, 1409;
see Sheldon Appel, supra, 47 Cal.3d at p. 883 [“if the trial court determines that the prior
action was not objectively tenable, the extent of a defendant attorney’s investigation and
research may be relevant to the further question of whether or not the attorney acted with
malice”].)
There is also the direct evidence from Lanz that in February, 2011, Goldstone met
with him and made a number of thinly veiled threats of protracted and costly litigation
unless Lanz agreed to dismiss his claims against Bolio for no money. After reminding
Lanz that he was uninsured and would need to defend the cross-complaint at his own
expense, Goldstone told Lanz he would not agree to binding arbitration, that he wanted to
preserve the threat of appealing any judgment.
Then, a few weeks later, Goldstone sent Lanz’s newly retained counsel
Mavredakis an e-mail stating that Lanz was “well aware of [Goldstone’s settlement]
position” and unless Lanz was willing to “tru[ly] compromise,” Goldstone was “quite
willing to take [the matter] through trial.” As one Court of Appeal described it, “Taken
together, all of these statements raise a strong inference that [Goldstone’s] goal in the
ongoing litigation was not to resolve genuine legal disputes, but to push [Lanz] into a
settlement.” (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1544; see also
HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal. App. 4th 204, 218 [combination of
“frivolous” claim, failure to conduct meaningful discovery, and an attempt to “squeeze a
settlement . . . on a baseless case” sufficient evidence of malice to defeat anti-SLAPP
motion].)
27
Finally, there is all the evidence that Judge Wick cited as to Bolio’s own ill will
toward Lanz. While the motives of the client are not imputable to Goldstone, he has done
nothing to disassociate himself from it.7
Goldstone several times notes that the cross-complaint was mandatory. Even if it
was, it is of no significance, as the California Supreme Court has expressly held: “It is
further of no significance that the contents of a cross-pleading may allege a transactional
counterclaim as defendants contend in this case. Even if this were true Bertero was still
compelled to defend against a possible $104,000 judgment and he was potentially
subjected to liability for additional attorney fees as well as to the fears and traumas
attendant to defendant status. The contention that defendants were compelled to assert
their cause of action under threat of being deemed to have waived it is not responsive to
the issue. A litigant is never compelled to file a malicious and fabricated action. It is not
the assertion of a claim that is actionable but rather the malicious character of the
assertion.” (Bertero, supra, 13 Cal.3d at p. 52.)8
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Lanz shall recover his
costs on appeal.
7
Save possibly with this footnote, a footnote that Lanz describes as “ignoble”:
“Notably, to the extent there was in fact ill will or bad blood between Bolio and LANZ, it
would be improper to impute Bolio’s alleged malice to GOLDSTONE. (See Zeavin,
supra, 136 Cal.App.3d at p. 773 [‘the attorney is not the insurer of his client’s conduct,
and the law wisely places no such burden on that party’s attorney solely by reason of his
client’s conduct. . .’].)”
8
Lanz filed a motion for sanctions and a request for judicial notice, both of which
are denied.
28
_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
A141694; Lanz v. Goldstone
29
Trial Court: Sonoma County Superior Court
Trial Judge: Honorable Gary Nadler
Attorneys for Plaintiff and Respondent: Law Office of John J. Mavredakis, John J.
Mavredakis
Attorneys for Defendant and Appellant: Murphy, Pearson, Bradley & Feeney,
Harlan B. Watkins, Arthur J. Harris
30