ARDESHIR MAJLESSI v. MICHAEL KADE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Law Office of Gerald Philip Peters and Gerald P. Peters for Plaintiff and Appellant.

Law Office of Michael P. Kade;  and Michael P. Kade, in pro. per., for Defendant and Respondent.

Plaintiff Ardeshir Majlessi appeals from the trial court's order granting attorney Michael Kade's special motion to strike Majlessi's malicious prosecution complaint.   We affirm.

BACKGROUND

Majlessi is a personal injury attorney, and Jacklin Meshkanian (dba Hollywood Health Clinic) is a chiropractor to whom Majlessi referred several of his clients for treatment.   In 2006, Kade represented Meshkanian in a lawsuit against Majlessi, alleging claims for breach of contract, common counts, fraud, conversion, and unfair business practices in violation of Business and Professions Code section 17200.   Meshkanian alleged that, in order to pay Meshkanian's fees, certain patients represented by Majlessi had given Meshkanian liens against their potential recovery on their personal injury claims, and that Majlessi had settled their cases but failed to honor the liens despite numerous demands.   Meshkanian subsequently filed a first amended complaint, adding a claim for breach of fiduciary duty, and then a second amended complaint, omitting the conversion claim.

As a result of Meshkanian's lawsuit, Majlessi filed several interpleader actions concerning the settlement funds in question.   Meshkanian was awarded portions of the interpleaded funds in several of those actions.

Meanwhile, in Meshkanian's suit against Majlessi, the trial court sustained without leave to amend Majlessi's demurrer to the fraud and unfair business practices claims in the second amended complaint.   On July 21, 2008, the court denied Majlessi's motion for summary judgment but granted summary adjudication of the breach of contract and common counts claims.   Thus, only Meshkanian's claim for breach of fiduciary duty remained.   Majlessi brought a “renewed” motion for summary judgment on that claim, which the court denied on February 18, 2009.   On April 2, 2009, the court denied Majlessi's motion for judgment on the pleadings on the same claim.

After having resolved her claims in the interpleaders, on October 7, 2009, Meshkanian voluntarily dismissed without prejudice her claim for breach of fiduciary duty, the sole remaining claim in her suit against Majlessi.

On July 14, 2010, Majlessi sued both Meshkanian and Kade. Majlessi alleged a single claim for malicious prosecution.

Kade filed a special motion to strike the complaint pursuant to section 425.16 of the Code of Civil Procedure.¹  The trial court granted the motion, and Majlessi timely appealed pursuant to section 425.16, subdivision (i).²

STANDARD OF REVIEW

An order granting a special motion to strike under section 425.16 is reviewed de novo.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)   “Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process.   First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.   The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).)”  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)  “If the defendant makes that showing, the burden shifts to the plaintiff to establish a probability he or she will prevail on the claim at trial, i.e., to proffer a prima facie showing of facts supporting a judgment in the plaintiff's favor.”  (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087 (Chavez ).)

DISCUSSION

Majlessi argues that the trial court erred by granting Kade's special motion to strike.   We disagree.

Kade carried his burden at the first step of the analysis, because Majlessi's malicious prosecution suit arises from protected conduct, namely, the underlying litigation in which Kade represented Meshkanian.   Majlessi has never disputed that point, either in the trial court or on appeal.

The burden therefore shifted to Majlessi to make a prima facie showing of facts that would support a judgment in his favor.   In his opposition to the special motion to strike, Majlessi expressly limited his malicious prosecution claim to the breach of contract and common counts claims in the underlying litigation.   But he never argued that he was damaged by the initiation or prosecution of those claims, particularly given that those claims were eliminated from the litigation before the breach of fiduciary duty claim, with which they were factually intertwined.

Damages are an element of a malicious prosecution claim.  (Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1369.)   Because Majlessi made no prima facie showing on that element, the trial court properly granted Kade's motion.

Majlessi's arguments to the contrary are not persuasive.   First, he cites evidence that he was damaged by the underlying litigation and asserts that “much” of the damages were “attributable to the contract and common counts causes of action.”   But he never explains how any of the cited evidence shows that he was damaged by the breach of contract and common counts claims in particular, given that those claims were eliminated from the litigation before the breach of fiduciary duty claim.

Second, Majlessi cites Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1411–1412, for the proposition that he “does not need to prove specific damages” because damages are “presumed” in a malicious prosecution action.   We are not persuaded.   Assuming for the sake of argument that damages can ordinarily be presumed for purposes of a special motion to strike in a malicious prosecution case, the presumption is rebutted here because Majlessi's malicious prosecution claim is based exclusively on two causes of action that were eliminated from the litigation before another cause of action with which they were factually intertwined.   Majlessi therefore cannot carry his burden in opposition to Kade's motion without coming forward with evidence that he was damaged by the breach of contract and common counts claims.

Third, Majlessi points out that Kade did not argue, in his special motion to strike, that Majlessi could not make a prima facie showing of damages, so Kade has “waived” the issue.   We disagree.   Once Kade carried his burden at the first step of the analysis by showing that Majlessi's lawsuit arose from protected conduct, the burden shifted to Majlessi “to proffer a prima facie showing of facts supporting a judgment in [his] favor.”  (Chavez, supra, 94 Cal.App.4th at p. 1087.)   Majlessi cannot obtain a judgment in his favor without proving that he was damaged by the breach of contract and common counts claims.   He therefore had the burden of making a prima facie showing of such damage, and he failed to carry that burden.

Fourth, Majlessi argues that requiring him to show that he was damaged by the breach of contract and common counts causes of action “would run counter to the well-established rule that a plaintiff must have probable cause for every cause of action asserted,” and that a malicious prosecution action may thus be based on some but not all of the causes of action in the underlying litigation.   We perceive no such conflict.   In order to prevail in his malicious prosecution action, Majlessi must prove that he was damaged by the causes of action that were allegedly pursued against him maliciously and without probable cause.   If he suffered no such damages, then he has no actionable claim—he cannot recover for harms he allegedly suffered as a result of the other causes of action in the underlying litigation.   Our approach therefore does not conflict with, but rather is a necessary complement to, the well-established rule that a malicious prosecution action may be based on some but not all of the causes of action in the underlying litigation.   A contrary approach would allow a malicious prosecution plaintiff to obtain compensation for damages caused by litigation conduct that was not wrongful.

For all of the foregoing reasons, we affirm the order granting Kade's special motion to strike.

DISPOSITION

The order is affirmed.   Respondent shall recover his costs of appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All subsequent statutory references are to the Code of Civil Procedure..  FN1. All subsequent statutory references are to the Code of Civil Procedure.

FN2. The record indicates that Meshkanian also filed a special motion to strike Majlessi's complaint, but the trial court did not rule on it when it granted Kade's motion..  FN2. The record indicates that Meshkanian also filed a special motion to strike Majlessi's complaint, but the trial court did not rule on it when it granted Kade's motion.

CHANEY, J. JOHNSON, J.