California Court of Appeal

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Drummond v. Desmarais, H031659

In a malicious prosecution action against plaintiffs' former attorney, judgment dismissing the action is affirmed where: 1) the trial court did not err in granting the special motion to strike the action for malicious prosecution based upon defendant's probate petition for fees, as plaintiffs cannot establish a favorable termination of the matter on the merits; and 2) the court did not err in dismissing plaintiffs' malicious prosecution suit based on defendant's own malicious prosecution complaint against them because, although the evidence supports a finding that defendant acted maliciously and without probable cause in suing his clients, defendant's voluntary dismissal of the suit was a technical disposition and not a termination on the merits in plaintiffs' favor as required.

Appellate Information

  • Decided 08/05/2009
  • Published 08/05/2009

Judges

  • RUSHING, P.J.

Court

  • California Court of Appeal

Counsel

  • For Appellant:
  • Michael T. Morrissey, Law Offices of Michael T. Morrissey, Los Gatos, Attorneys for Plaintiffs and Appellants George R. Drummond et al.

  • For Appellees:
  • Willoughby, Stuart & Bening, Bradley A. Bening, Ellyn E. Nesbit, San Jose, Michael G. Desmarias, Law Offices of Michael G. Desmarais, Los Gatos, Attorneys for Defendants and Respondents Michael G. Desmarais et al.
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