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Page 2
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
FN4
on or about July 18, 2005.
Gianelli noticed that
Martha's purported signature on Exhibit A did not
comport with my recollection of her classic crisp
signature that I had seen on two prior unrelated
FN5
agreements....
On July 20, Gianelli spoke to
Martha by phone; Martha confirmed my observation that her purported signature on Exhibit A to the
Complaint was not her own, and does not resemble
her own....
FN4. Subsequent dates are in 2005 unless
otherwise indicated.
FN5. At the time he reviewed the complaint on or about July 18, Gianelli represented Stuart. On July 20, Martha retained
Gianelli.
In her own declaration in opposition to the motion to strike, Martha states that [t]he purported
signature of Martha Depper appearing on ...
[Exhibit A] is not mine. I did not sign Exhibit A.
None of the handwriting, initials or printing on Exhibit A ... is mine. Martha denied handprinting her
name, and noted that instead of printing Depper
someone had printed Deppe'. Martha did state
that she signed a written acceptance of an offer to
sell the property to Alba Burnett, but that acceptance was never delivered to the Burnetts and in any
event expired after 30 days. She was adamant that
FN6
she did not sign Exhibit A.
FN6. It is not necessary to now relate the
disputed details over purported discussions
involving Stuart and the Burnetts regarding
the possible sale of Martha's property.
Martha did state in her declaration that she
never discussed any sale with the Burnetts,
and she did not authorize Stuart to be her
agent with regard to any contracts involving the property. While she may have
signed a contract that was never given to
the Burnetts, it is undisputed that she did
not sign Exhibit A, the contract on which
the Property Action is based and of which
the Burnetts sought specific performance.
Page 3
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
Page 4
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
Page 5
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
On October 17 and 18, the lawyers for the respective parties exchanged further e-mails. Lucas
wwrote that he planned to add further causes of
action for fraud against Martha, and apparently accused Gianelli of submitting perjured testimony to
the court on the motion to expunge, regarding Lucas's admission at the site visit that Exhibit A was
forged. Gianelli again referred his opponents to
Zamos.
On October 21, the court issued its tentative
ruling granting Martha's motion to expunge the lis
pendens: [The Burnetts] have failed to meet their
burden of showing by a preponderance of the evidence the probable validity of the real property claim
(CCP 405.32). [The Burnetts] have failed to show
that the signature on Ex[hibit] A to the Complaint
is that of Martha Depper and thus CC 3388 is a
complete bar to their specific performance cause of
action . (Emphasis added.) Lucas called Gianelli
and told him he intended to appear and contest the
tentative ruling.
On October 22, Gianelli wrote Lucas and Goforth a lengthy letter, again characterizing the Property Action as untenable, again demanding dismissal (especially now that the court had issued its
tentative ruling against them), and noting their liability for malicious prosecution.
At the October 24 hearing on the motion to expunge, Lucas admitted on the record, in open court,
that Martha's purported signature on Exhibit A had
FN9
been forged.
Gianelli announced he planned to
move for summary judgment. The court adopted its
tentative ruling and granted the motion to expunge
from the bench.
FN9. The court told Lucas that the Exhibit
A attached to his complaint is the one that
somebody forged her signature on. Lucas
replied, I guess somebody did.
On October 25, Gianelli sent Lucas and Goforth an e-mail demanding that they dismiss the
Property Action by October 26 or risk a lawsuit
against them, their firm, and the Burnetts for malicious prosecution. Lucas responded with an abusive
e-mail threatening sanctions and claiming Gianelli
had hired a former client to harass the Burnetts. On
October 28, Gianelli again wrote Lucas demanding
dismissal and threatening a malicious prosecution
action.
On November 4 and 10, during and after settlement discussions, Lucas and the Burnetts took the
position that they would only settle the Property
Action if Martha waived her claim for malicious
prosecution. Lucas claimed he would maintain the
action against Martha absent such a waiver.
On November 11, Gianelli learned that Martha
had suffered a stress related medical event due to
her worry and upset about being sued in the Property Action and had been rushed to obtain emergency medical treatment. Gianelli completed his
preparation of a motion for summary judgment.
On November 14, at 6:00 a.m., Gianelli faxed a
letter to Lucas informing him that Gianelli would
be immediately filing a summary judgment motion,
and then would file suit for malicious prosecution.
At just after 8:00 a.m. that day, Gianelli filed the
motion for summary judgment. The filing of the
motion appeared on the superior court's website by
10:00 a.m. At 11:51 a.m., Lucas filed a request for
dismissal of the Property Action.
*6 On November 29, Gianelli filed the instant
malicious prosecution on Martha's behalf. The complaint alleged that from June 30 through November
14, defendants initiated and maintained the Property Action without probable cause and with
malice, and that the voluntary dismissal on November 14 constituted a favorable termination of the
Property Action. More specifically, the complaint
alleges (1) that the Burnetts either forged the signature on Exhibit A or the forgery was done with their
knowledge and consent; and (2) that from July 19
until the dismissal on November 14, defendants
wrongfully maintained the Property Action because
they knew that Martha's purported signature on Ex-
Page 6
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
Page 7
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
Page 8
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
Since only one cause of action can support liability for malicious prosecution, we need only discuss the Property Action's cause of action for specific performance of the contract known as Exhibit
A. Thus, we decide this narrower issue: whether
Martha shows a prima facie case that she will prevail because the defendants maintained the cause of
action for specific performance without probable
cause and with malice, and that cause of action was
terminated in Martha's favor.
1. Lack of Probable Cause. A cause of action
lacks probable cause if it was not legally tenable
when viewed objectively. ( Zamos, supra, 32
Cal.4th at p. 971; see Sheldon Appel, supra, 47
Cal.3d at p. 878.) The test of objective tenability is
whether any reasonable attorney would have
thought the cause of action was tenable. ( Zamos,
supra, 32 Cal.4th at p. 971; Sheldon Appel, supra,
47 Cal.3d at p. 886.)
*9 Martha has shown a prima facie case that
Lucas continued to maintain the specific performance cause of action without probable cause. On July 20, Gianelli informed Lucas that the signature on
Exhibit A was not Martha's. On July 26, Gianelli
faxed Lucas an exemplar of Martha's signature that
was so different from the signature on Exhibit A
that a layperson would reasonably conclude the
contract signature was a forgery. There is evidence
that on July 28 Lucas admitted the signature was
not Martha's. Martha executed a declaration to that
effect on August 1 in connection with her motion to
expunge the lis pendens. On September 2, Goforth
was made aware that the signature was forged.
On October 21, the trial court issued a tentative
ruling that the Burnetts had not shown the signature
was Martha's and thus could not maintain a cause of
action for specific performance against Martha,
who was a nonsignatory to the contract. (Civ.Code,
3388.) On October 24, Lucas admitted in open
court that the signature was a forgery. Lucas continued the action until November 14 before dismissing it.
Page 9
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
FN11. We acknowledge that defendant Lucas maintains that he pursued the Property
Action in good faith and without malice,
and was performing reasonable investigation of the validity of the Exhibit A signature while he maintained the suit. The
reasonableness of counsel's persistence is,
of course, a question of law to be decided
on a case-by-case basis.... ( Zamos, supra,
32 Cal.4th at p. 970, fn. 9.) In this particular case, on the facts before us, we conclude that Martha has shown a prima facie
case that Lucas surpassed the bounds of
reasonable investigation and maintained
the specific performance cause of action
without probable cause.
Page 10
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))
case. We express no opinion on the ultimate disposition of the malicious prosecution action.
3. Favorable Termination. If an action terminates other than on the merits, a court will generally look to the reasons underlying the termination
to see whether the termination reflects the opinion
of the plaintiff or the trial court that the action
could not succeed. (See Ross, supra, 145
Cal.App.4th at p. 198; Oprian v. Goldrich, Kest &
Associates (1990) 220 Cal.App.3d 337, 343.) In
the ... context of a malicious prosecution action, a
voluntary, unilateral dismissal of the underlying
dispute is generally considered a termination in favor of the defendant. [Citation.] ( Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775,
779.) This would not be true where the dismissal
was on technical grounds or as a result of an agreement or settlement unrelated to the merits. (Oprian,
at p. 343.)