SARBJIT SINGH v. ERRY SINGH (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff and appellant Sarbjit Singh appeals from a summary judgment in favor of defendant and respondent Erry Singh, also known as Erry Budiarso, in this malicious prosecution action.¹  Sarbjit contends Erry's voluntary dismissal of her action against him for intentional infliction of emotional distress was a termination of the case in his favor.   We conclude the undisputed evidence showed that Erry dismissed her action for reasons unrelated to the merits, and therefore, the dismissal was not a favorable termination for purposes of Sarbjit's malicious prosecution action.   We affirm.

FACTS AND PROCEDURAL BACKGROUND

Sarbjit and Erry married in April 2004.   Sarbjit filed a petition for dissolution in March 2006.   Erry filed an action against Sarbjit for intentional infliction of emotional distress in May 2008.   Erry's lawyer Kurt Miller, doing business as The Law Offices of Kurt Miller, withdrew from the case.   Erry voluntarily dismissed her action in January 2009.

In February 2009, Sarbjit filed a malicious prosecution action against Erry and Miller.   Erry filed a motion for summary judgment on the ground that Sarbjit could not establish that the underlying action was terminated in his favor, which was required to prove malicious prosecution.

In support of the motion for summary judgment, Erry submitted her declaration that shortly after Sarbjit filed his petition for dissolution, Erry learned she was pregnant and the couple reconciled.   However, unknown to her, Sarbjit proceeded and obtained a judgment of dissolution on October 25, 2006.   Sarbjit submitted letters in immigration proceedings accusing Erry of lying to immigration authorities and requesting that she be deported.   He disputed their child's paternity, although he was later shown to be the child's father through DNA testing.   Sarbjit's attorney filed numerous motions, until Erry could no longer afford attorney fees.   Erry allowed Miller to withdraw from the case and directed him to voluntarily dismiss her complaint without prejudice, because she could not afford to continue to prosecute the case.   She believes that the allegations of the complaint are true and has never been advised that the case has no merit.   The only reason that she agreed to dismiss the action was because she could not afford further litigation costs.

Erry submitted copies of letters that Sarbjit wrote in the course of her immigration proceedings, which stated that Erry had not been truthful about her marital status or her family's hardship in Indonesia.   He informed authorities that he had been separated from Erry since 2005, their divorce was final as of October 25, 2006, and he no longer had any ties to her or anything to do with her.

Sarbjit opposed the motion for summary judgment on the ground that Erry's voluntary dismissal of the complaint without prejudice was sufficient to establish a termination on the merits in his favor.   Sarbjit submitted a decision of the State Bar Court of California showing that Miller had been disbarred from the practice of law on December 15, 2008, based on his actions in two unrelated matters.   He also submitted a portion of Erry's deposition testimony.   When she was asked why she signed the request for dismissal of her complaint, she answered that she wanted to file it and everything Sarbjit said to her was untrue.

The trial court granted the motion for summary judgment.   The trial court found Erry's evidence that she voluntarily dismissed her complaint due to lack of funds had shifted the burden of proof to Sarbjit to demonstrate a triable issue of fact as to whether the voluntary dismissal was a favorable termination.   The trial court found Sarbjit's evidence that Erry's former attorney had been disbarred and Erry filed the dismissal because she wanted to file it did not constitute the type of circumstances showing the dismissal was a favorable termination.   The trial court entered a judgment of dismissal in favor of Erry on March 2, 2010.   Sarbjit filed a timely notice of appeal.

DISCUSSION

Standard of Review

Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)  “The moving party bears the burden to demonstrate ‘that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.’  [Citation.]  If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment ‘to make [its own] prima facie showing of the existence of a triable issue of material fact.’   [Citation.]  ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’  [Citation.]”  (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.)

We review summary judgment orders de novo.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.)  “We do not resolve conflicts in the evidence as if we were sitting as the trier of fact.  [Citation.]  Instead, we draw all reasonable inferences from the evidence in the light most favorable to the party opposing summary judgment.  [Citation.]  All doubts as to the propriety of granting summary judgment are resolved in favor of the opposing party.   [Citation.]”  (Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961.)

Separate Statement of Facts

Sarbjit contends the trial court was limited to consideration of the bare fact set forth in Erry's separate statement of material facts that the underlying action was voluntarily dismissed in determining whether Erry met her burden on summary judgment.   This is incorrect.   A trial court may exercise its discretion to proceed even in the absence of a separate statement of material facts.  (Code Civ. Proc., § 437c, subd. (d);  cf.  Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 93–94.)   This case involved a single, simple issue with minimal evidentiary support.   The undisputed fact that the action was voluntarily dismissed was supported by reference to Erry's declaration, which explained the circumstances of the dismissal.   The trial court did not abuse its discretion by reviewing the evidence as a whole in ruling on the motion for summary judgment.

No Triable Issue of Fact as to Favorable Termination

Sarbjit contends that Erry's voluntary dismissal constituted a termination of the action in his favor for purposes of a malicious prosecution action.   We disagree.

“To establish a cause of action for malicious institution of a civil proceeding, a plaintiff must demonstrate that the prior action was commenced by or at the direction of the defendant and (1) was pursued to a legal termination in the plaintiff's favor;  (2) was brought without probable cause;  and (3) was initiated with malice.  [Citations.]”  (Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1807–1808.)

“[A] voluntary dismissal, even one without prejudice, may be a favorable termination which will support an action for malicious prosecution.   [Citation.]  ‘In most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action;  the same is true of a dismissal for failure to prosecute.  [Citations.]’  [Citation.]”   (Fuentes v. Berry, supra, 38 Cal.App.4th at p. 1808.)

“Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if it reflects the

When undisputed evidence shows that the plaintiff dismissed his or her complaint based on a practical decision that further litigation was too expensive, and the record does not show that the plaintiff sustained any adverse rulings in the case or otherwise had reason to believe the claims would be unsuccessful, then the dismissal is not considered to be on the merits and does not constitute a termination in the defendant's favor for the purposes of a malicious prosecution action.  (Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337, 345;  cf.  Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1057.)

In this case, Erry submitted evidence showing that her dismissal of her action against Sarbjit did not amount to a termination in his favor.   Erry presented evidence of the events that caused her emotional distress.   Sarbjit had led her to believe they had reconciled, while secretly obtaining a divorce, and sought to influence immigration authorities to have her deported in order to avoid his child support obligations.   She also presented evidence that she dismissed her action against him for intentional infliction of emotional distress solely due to the expense of the litigation.   This evidence was sufficient to show that Erry did not dismiss the case based on the merits, and her dismissal was not a favorable termination for the purposes of Sarbjit's malicious prosecution action.   The burden shifted to Sarbjit to show a triable issue of fact as to whether Erry had reason to believe her claim would not be successful.

Sarbjit did not meet this burden.   He provided evidence that Erry's attorney had been disbarred for actions in two unrelated matters.   No inference could reasonably be drawn that her attorney's loss of his license to practice law for unrelated actions in other cases reflected on the merits of Erry's claims against Sarbjit.   Erry's deposition testimony that she dismissed the action because she wanted to and that Sarbjit's statements were false does not support finding that she believed her claims would be unsuccessful.   Sarbjit failed to show that a triable issue of fact existed as to the element of favorable termination, and therefore, the summary judgment must be affirmed.

DISPOSITION

The judgment is affirmed.   Respondent Erry Singh is awarded her costs on appeal.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

KUMAR, J.^*

FOOTNOTES

FN1. Because the parties share the last name Singh, they will be referred to individually by their first names for ease of reference..  FN1. Because the parties share the last name Singh, they will be referred to individually by their first names for ease of reference.

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.