DEVORAH ILLULIAN et al., Plaintiffs and Respondents, v. S. SEAN BRAL et al., Defendants and Appellants.
Hollins & Levy, Byron S. Hollins and Laura M. Levy for Defendants and Appellants.
Ecoff, Blut & Solomons, Lawrence C. Ecoff and Philip H. R. Nevinny for Plaintiffs and Respondents.
CROSKEY, J.
This is an appeal in a suit for malicious prosecution. The appeal is taken from an order denying a Code of Civil Procedure section 425.16 (§ 425.16) special motion to strike a complaint. The special motion to strike asserts that this action is what is commonly known as a “SLAPP” (strategic lawsuit against publication) suit because it is based on the moving defendants’ constitutional right to petition government for redress of grievances. The moving defendants are attorneys who exercised that right by filing an underlying lawsuit (on behalf of their clients) against the persons who are plaintiffs in the instant case.
At the hearing on the special motion to strike, the trial court indicated that while this suit is indeed based on said constitutional right, the plaintiffs in this case have demonstrated that there is a probability they will prevail on their claim of malicious prosecution. On that basis, the court denied the motion. Because we find that the trial court was correct we will affirm the order denying the special motion to strike.
1. The Parties in This Case
The plaintiffs in this malicious prosecution case are Devorah Leah Illulian, Avremil Wagshul, and David Hullaster (Illulian, Wagshul, and Hullaster, and together, plaintiffs). As noted, plaintiffs were defendants in the abovementioned underlying action.1
Named as defendants in the instant case are (1) the plaintiff in that prior case, Michael Banafsheha (Banafsheha), and (2) the attorneys who represented him in that case, S. Sean Bral and his law firm Bral & Associates (together, Bral), and Jerry S. Milliken (Milliken, and together with Bral, defendants). Only Bral filed the special motion to strike the complaint.2
2. Allegations in the Instant Complaint
Plaintiffs’ complaint alleges that in the underlying action Banafsheha claimed damages for personal injuries he sustained at a wedding where he was assaulted and battered. According to the complaint, Illulian and Wagshul were married at that wedding which was held on June 21, 2005 at the Universal City Hilton Hotel. The complaint alleges that the wedding was hosted by the father of the bride, Rabbi J.H. Illulian, “who had entered into a written contract with the Hilton Hotel to rent the facility.” It is further alleged that although Banafsheha’s claims against Illulian and Wagshul in the prior suit were based on a theory of premises liability, Illulian and Wagshul did not enter into any agreement with the Hilton Hotel to rent its banquet facility, they did not host the wedding and were not in control of the premises, and defendants had actual knowledge of these facts before they filed the underlying action or defendants learned of such facts during the pendency of that suit.
Regarding plaintiff Hullaster, plaintiffs allege that Banafsheha’s theory of liability against him was that Banafsheha was attacked by two persons at the wedding and Hullaster was one of the attackers. According to the instant complaint however, prior to filing the prior suit defendants interviewed three witnesses to the assault on Banafsheha who told them that Banafsheha was struck by only one person and that person bears no resemblance to Hullaster, and further, a police report states that only one person struck Banafsheha.3 The complaint further alleges that during the time the underlying action was pending, Banafsheha, while he was under oath and in the presence of his attorney Bral, provided a description of the person who struck him and identified a person in a photograph as the person who struck him, and although neither the description nor the person in the photograph bore a resemblance to Hullaster, defendants continued to prosecute the underlying case against Hullaster.
Plaintiffs allege in their complaint that defendants acted without probable cause in bringing and maintaining the underlying action. Plaintiffs allege that defendants did not and could not reasonably and in good faith have believed that there was legal cause to bring and pursue the action against Illulian and Wagshul for premises liability4 and against Hullaster for assault and battery; and, in bringing and pursuing the underlying action, defendants acted maliciously and “for an improper purpose, prejudice, or a desire to annoy and wrong the Plaintiffs.”5
3. Bral’s Special Motion to Strike the Complaint
The question whether Bral filed the complaint against plaintiffs without probable cause and with malice was addressed in the declarations and corresponding exhibits filed by plaintiffs and Bral. Like the trial court, we find that the record contains sufficient evidence to meet plaintiffs’ burden of a prima facie showing that the causes of action against them in the underlying action were alleged without probable cause and with malice. Regarding naming Illulian and Wagshul as defendants, we observe that the attack on Banafsheha occurred at a wedding and reception. There is no set standard or expectation in California as to who will be the person who arranges and hosts such a function and has control over it. It may be the bride and groom, it may be the parent or parents of the bride and/or groom, or it may be other persons. Thus, naming Illulian and Wagshul as defendants on a cause of action for premises liability in the underlying action on the basis that the wedding and reception were a function for their benefit cannot be said to constitute competent evidence to substantiate a legally cognizable claim for relief on such cause of action, even if they did have input as to the makeup of the guest list, as the evidence shows they did. There must be something more to cause a reasonable attorney to believe that a premises liability cause of action against them (whether based on a negligence theory or an agency theory), would be tenable. Likewise, given that Hullaster was not identified by anyone at the time of the assault on Banafsheha as being someone who engaged in that assault, there must be some evidence to cause a reasonable attorney to believe that Hullaster was nevertheless someone who assaulted Banafsheha at the wedding. Plaintiffs have presented evidence that would cause a court to conclude that no reasonable attorney would file a suit against them on the claims asserted by Bral.
4. The Trial Court’s Analysis of the Special Motion to Strike
At the hearing on the special motion to strike, the trial court explained its tentative ruling to deny the motion. The court stated that in the underlying action the defendants alleged that plaintiffs Illulian and Wagshul were liable for the attack on Banafsheha because they were in control of the premises where the attack occurred at the Hilton Hotel (premises liability), but the evidence known at the time of the underlying action, as evidenced by the cross-complaint filed by Hilton Hotel against Rabbi Illulian, was that plaintiffs Illulian and Wagshul did not have the contract with the hotel.6 Rather, the bride’s father, Rabbi Illulian, had the contract. Moreover, said the court, Banafsheha testified that the only reason he sued plaintiffs in the underlying case was to obtain certain discovery. The court also noted that in making the special motion to strike the complaint Bral “[did] not cite to any investigation he did with regard to the bride and groom’s liability for the attack.” And the court observed that in granting summary judgment to plaintiffs Illulian and Wagshul the trial court in the underlying action did not find any evidence that Illulian and Wagshul controlled, owned or possessed the premises where the attack on Banafsheha occurred and therefore the trial court in the underlying action concluded they owed no duty with respect to the condition of those premises. Thus, said the trial court in the instant case, there is evidence that defendants lacked probable cause to file suit against Illulian and Wagshul since there was no evidence that they owed Banafsheha a duty. Additionally, said the court, plaintiffs have presented evidence of malice—Banafsheha’s testimony that the only reason the underlying action named Illulian and Wagshul as defendants was to obtain discovery evidence.
The trial court also found there is evidence that Bral lacked probable cause to sue plaintiff Hullaster for assault and battery. The court stated (1) a police report states only one person struck Banafsheha, (2) “[w]hile the investigation was conducted, no information was obtained confirming the physical description of the assailant”; (3) Banafsheha and his family “could not identify the assailant and didn’t see the incident”; (4) another witness, one Cal Levitt, also could not identify the attacker; and (5) after the underlying action was filed it was Bral who identified Hullaster as an attacker even though Bral “does not appear to have witnessed the incident [at the wedding] since his declaration of the altercation is based on information and belief”; and moreover, Bral’s identification of Hullaster as person who attacked Banafsheha was based on a description given to him by another person (who is now deceased), and Bral made that identification after Bral saw Hullaster at another event. The court stated there is also evidence of malice in pursuing Hullaster in the underlying action because there is an inference that the suit was knowingly brought without probable cause since there were no eyewitness statements that could identify Hullaster as the assailant.
In response to the court’s analysis Bral argued that Illulian’s father was merely the agent of Illulian and Wagshul in contracting for the space in the Hilton Hotel for their wedding and thus Illulian and Wagshul had possession of the rented space and could be held liable to Banafsheha. Illulian and Wagshul responded to that argument by saying that (1) when Bral took the depositions of Rabbi Illulian, Illulian. and Wagshul, Bral never asked them if the Rabbi was acting as the agent of Illulian and/or Wagshul in renting space at the hotel for the wedding, (2) agency was never argued by Bral in presenting Banafsheha’s opposition to Illulian and Wagshul’s motion for summary judgment in the underlying action, (3) agency was a theory manufactured after summary judgment was granted to Illulian and Wagshul in the underlying action because Bral recognized that “he had nothing else to discuss”, and (4) a finding of agency requires evidence that an agent was working on behalf of a principal and here, there is no evidence of that. Bral responded that the contract that Rabbi Illulian signed with the Hilton Hotel states “Devorah’s Wedding by H. Illulian” and “that confirms an agency.”
As for whether Bral had probable cause to sue Hullaster, Bral argued that he received information that two persons attacked Banafsheha and thus there was cause to investigate who the second assailant might be and the investigation showed that the second person was Hullaster, who is the brother of the other person who attacked Banafsheha, and this was discovered because Hullaster was described as a tall, dark skinned Jewish Persian man with a pony tail who was wearing sun glasses at night at the wedding and when Bral was at a subsequent event he saw Hullaster with Dr. Hilton and they are brothers.
The court was not persuaded by Bral’s analysis as to any of the plaintiffs and it denied Bral’s special to strike the complaint. The trial court ruled that plaintiffs met their section 425.16 burden to establish a probability of prevailing on the merits of the instant case, and the court remarked that although Bral asserted that plaintiffs opposition to the special motion to strike was based on plaintiffs’ own version of the record, a court in examining the evidence presented in connection with a special motion to strike does not weigh that evidence when it determines whether to grant such a motion.
Bral contends the trial court (1) based its decision to deny the special motion to strike on erroneous factual findings, and (2) erred when it based its decision on findings made by the trial court in the underlying action. Bral also contends there was probable cause to proceed against Illulian, Wagshul, and Hullaster.
1. Requirements for Section 425.16 Special Motions to Strike
A defendant bringing a section 425.16 special motion to strike a complaint must make “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, (Equilon).) “`A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation].” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
If the defendant makes its threshold showing, the burden shifts to the plaintiff to demonstrate a probability that it will prevail on its cause of action. (§ 425.16, subd. (b)(1).) Because a special motion to strike is generally filed early in a lawsuit and section 425.16, subdivision (g) generally stays discovery until the motion is decided, “the plaintiff’s burden of establishing a probability of prevailing is not high.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)7 The plaintiff must show that its suit has at least “minimal merit.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 93. Thus, when the plaintiff demonstrates a probability of prevailing on any part of its claim, the plaintiff has met its burden of showing the cause of action is not meritless, the entire cause of action remains intact at that point in time and the special motion to strike is defeated. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.)
Both the defendant moving party and the plaintiff are required to make a prima facie showing with respect to their respective section 425.16, subdivision (b)(1) burdens. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646, disapproved on another point in Equilon, supra, 29 Cal.4th at p. 68, fn.5.) In determining whether they make their showings, a court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) The court does not determine credibility nor weigh the evidence presented by the parties. The evidence favorable to the plaintiff is accepted as true, and the defendant’s evidence is evaluated to determine if it defeats plaintiff’s evidence as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
When reviewing a defendant’s special motion to strike, a reviewing court uses its independent judgment and examines the motion under the same process as the trial court did. Here, the trial court properly found that Bral engaged in a protected activity when it filed the underlying action against the plaintiffs on behalf of Banafsheha. Filing a lawsuit is exercising one’s constitutional right of petition and thus a cause of action for malicious prosecution based on such activity meets the first prong of section 425.16 and shifts the analysis of a special motion to strike to the second prong—whether the plaintiffs have demonstrated a probability of prevailing on their malicious prosecution cause of action. (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1397-1398.)
2. Elements of a Cause of Action for Malicious Prosecution
A cause of action for malicious prosecution involves a prior suit that was (1) initiated by or at the direction of the party that is the defendant in the malicious prosecution action, (2) legally terminated in favor of the party that is the plaintiff in the malicious prosecution action, (3) initiated without probable cause, and (4) initiated with malice. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)
The first two elements of a cause of action for malicious prosecution are met in this case. Bral filed the underlying action against plaintiffs on behalf of Banafsheha. The underlying action was legally terminated in plaintiffs’ favor when Illulian and Wagshul received a summary judgment and Hullaster a judgment on a jury verdict.
Regarding the probable cause element of a cause of action for malicious prosecution, we note that malicious prosecution is a disfavored cause of action because of its potential chilling effect of dissuading ordinary citizens from bringing lawsuits to resolve disputes and seek redress for injuries. For that reason, “the elements of the tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution action.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872, Sheldon Appel.)
Whether there was probable cause to bring a lawsuit is always a question of law for the court to decide based on the facts established in a case. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-875.) Determining whether there was probable cause to initiate a lawsuit “requires a sensitive evaluation of legal principles and precedents” and courts must distinguish between an unsuccessful claim and a “legally untenable claim.” (Sheldon Appel, supra, 47 Cal.3d at p. 875.) The trial court must determine “whether, on the basis of the facts known to the defendant [in the malicious prosecution suit], the institution of the prior action was legally tenable. The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted. . . . [I]f the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail.” (Id. at p. 878.)
The defendant’s subjective belief in, or evaluation of, the legal tenability of the prior suit is not an element of probable cause, but the defendant’s subjective “belief in, or knowledge of, a given state of facts” may be relevant. (Sheldon Appel, supra, 47 Cal.3d at p. 879.) “Where 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, . . . the jury must resolve the threshold question of the defendant’s factual knowledge or belief. Thus . . . the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Id. at p. 881.) Moreover, if the trial court determines that the resolved, or undisputed, preliminary facts demonstrate that the prior suit was objectively tenable, there is no cause of action for malicious prosecution “even if the plaintiff can show that its adversary’s law firm did not realize how tenable the prior claim actually was.” (Id. at p. 882.) This is because the adversary could have consulted a “more legally astute” law firm to bring an identical claim. (Ibid.) The quality of an attorney’s legal research on the reasonableness of a prospective lawsuit is not relevant to the issue whether such suit was brought with probable cause. (Id. at pp. 882-883.) Nor is expert testimony on the issue whether a claim was tenable, since it is a question of law for the trial court to decide. (Id. at p. 884.)
A cause of action for malicious prosecution will lie when the underlying suit charged multiple grounds of liability and some but not all of them were asserted or pursued without probable cause and with malice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 671, 679. However, “[a] plaintiff remains free to allege any and all `inconsistent counts’ that a reasonable attorney would find legally tenable on the basis of the facts known to the plaintiff at the time.” (Id. at p. 691.)
The determination of the question whether institution of a prior suit was legally tenable is determined by resolving the question whether any reasonable attorney would have thought that the prior lawsuit was tenable, “tak[ing] into account the evolutionary potential of legal principles” so as to “avoid[] the chilling of novel or debatable legal claims.” (Sheldon Appel, supra, 47 Cal.3d at pp. 885-886.) Thus, for example, “[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 818 [holding that just as a denial of a defense motion for summary judgment in an underlying case establishes the probable cause to file that case, the denial of a defense section 425.16 special motion to strike in an underlying suit also establishes probable cause to bring a suit, absent proof the special motion to strike ruling was obtained by fraud (id. at p. 815 et seq.)].)
As noted above, in deciding a section 425.16 special motion to strike a complaint, the evidence favorable to the plaintiff is accepted as true, and the defendant’s evidence is evaluated to determine if it defeats plaintiff’s evidence as a matter of law. (Flatley v. Mauro, supra,39 Cal.4th 299, 326.) Regarding the evidence submitted by a defendant for the defendant’s special motion to strike a complaint when the complaint alleges a malicious prosecution, by that defendant, of an underlying action, our Supreme Court has stated that “[a] litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortuously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious.” (Wilson v. Parker, Covert & Chidester, supra,28 Cal.4th 811, 822)
Plumley v. Mockett (2008) 164 Cal.App.4th 1031 involved an action for malicious prosecution where the court noted that the doctrine of collateral estoppel was not applicable in that suit because the issue in the suit was whether there was probable cause to bring the underlying action which charged misappropriation of an invention whereas the issue in the underlying action was whether there actually was a misappropriation of the invention. Moreover said the court, even if the issues in both cases were identical, collateral estoppel would not be applied because its application “would violate well-established principles that litigants and attorneys who bring a legally tenable action are not subject to liability for malicious prosecution simply because a trier of fact disbelieves their version of conflicting evidence and makes findings adverse to them.” (Id., at pp. 1048-1050.)
Finally, the lack of probable cause to bring a suit can be tied to the element of malice. “If the trial court concludes that the prior action was not objectively tenable, evidence that the defendant attorney did not subjectively believe that the action was tenable would clearly be relevant to the question of malice.” (Sheldon Appel, supra, 47 Cal.3d at p. 881.) Also, “as with the question of the defendant’s subjective belief in the tenability of the claim, 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 . . . question of whether or not the attorney acted with malice.” (Id. at p. 883.) However, if a court finds a suit was brought with probable cause, the cause of action for malicious prosecution fails even if there is evidence such suit was motivated by malice. (Id. at p. 875.)
The element of malice “relates to the subjective intent or purpose with which the defendant acted in initiating the prior action” and such motivation is a question of fact for the trier of fact to determine. (Sheldon Appel, supra, 47 Cal.3d a at p. 874.) “Malice `may range anywhere from open hostility to indifference.'” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) Because it is not improper to file an action for personal ends, the plaintiff in a suit for malicious prosecution must “plead and prove either actual ill will or some ulterior purpose distinct from that of enforcement of the alleged cause of action.” (5 Witkin, supra, at p. 760.) Malice is usually demonstrated by circumstantial evidence or inferences drawn from evidence. (Id. at p. 761.)
3. The Trial Court’s Factual Findings
(a) Bral argues the trial court erred in that it assumed that Rabbi did not act as the agent of Illulian and Wagshul when he entered into the contract with the Hilton Hotel. The problem with Bral’s argument is that even though he argued an agency theory to support his section 425.16 special motion to strike plaintiffs’ complaint, his appellate argument is not supported with evidence that the contract was made by the rabbi acting as an agent. That raises the question how then could a reasonable attorney find probable cause to pursue a cause of action against Illulian and Wagshul on an agency theory. Moreover, Bral did not present an agency theory in the underlying action. He argued premises liability based on negligence.
(b) Bral argues the trial court should not have relied on Banafsheha’s deposition testimony that the only reason Illulian and Wagshul were named as plaintiffs in the underlying action was to obtain evidence for that case. Bral asserts this testimony was based on a lay person’s misunderstanding of why Illulian and Wagshul were named as defendants. However, Bral had an opportunity at the deposition to address that misunderstanding but he does not indicate in his appellant’s briefs that such opportunity was taken to show that Banafsheha was mistaken. This is more evidence of a lack of probable cause to sue Illulian and Wagshul.
(c) Bral contends the trial court erred when it observed that in the underlying action a trial court granted summary judgment to Illulian and Wagshul because it found no evidence that they controlled, owned or possessed the premises where the wedding and reception took place and thus no evidence they owed a duty with respect to the condition of those premises. Bral argues it was not proper for the court hearing the special motion to strike to treat the prior court’s findings as collaterally estopping Bral from prevailing on the special motion to strike the complaint. However, we need not construe the trial court’s analysis as an application of the doctrine of collateral estoppel. The element of a favorable termination for the plaintiff in the underlying action simply tends to indicate the plaintiff’s innocence, and it is when favorable termination is coupled with the other elements of malicious prosecution—lack of probable cause and malice—that the tort of malicious prosecution is established. (Siebel v. Mittlesteadt, supra, 41 Cal.4th at p. 741.) In our de novo review of the evidence presented by Bral, Illulian, Wagshul and Hullaster in connection with Bral’s special motion to strike the complaint for malicious prosecution, we do not apply the doctrine of collateral estoppel.
(d) Bral asserts the trial court erred in stating that the police report states only one person struck Banafsheha. Bral is correct. The police report states that a witness stated only one person struck Banafsheha, and Banafsheha told the police he was struck by two people. We do note however, that three other people stated only one person attacked Banafsheha. One of them, Tal Levit, so stated both in his interview with Bral and at trial, and when viewing Hullaster at trial he was not able to say that Hullaster was the person he saw attacking Banafsheha even though Bral has argued that Hullaster’s appearance is very distinct. The persons who stated there were two attackers were Banafsheha, his father, and “one of the brothers.” However regarding “one of the brothers,” it was at trial or at his deposition that this brother attested to there being two attackers, and there is no indication that if it was at his deposition the deposition was taken before Hullaster was named as a Doe defendant and thus no indication that the brother’s information constitutes probable cause to name someone besides Dr. Hilton in the underlying action as being a person who attacked Banafsheha. The state of the evidence is that several people stated there was only one person who attacked Banafsheha, Banafsheha passed out after the first blow to his head, and he identified a second person as the one who was hitting him after he came to. Yet, one of the witnesses stated that although there was a second person, that second person was only leaning over Banafsheha.
(e) Bral argues the trial court erred when it stated: “No information was obtained confirming the physical description of the assailant.” However, what the trial court actually said was: “While the investigation was conducted, no information was obtained confirming the physical description of the assailant.” This remark was directly preceded by the court’s statement that the police report states only one person struck Banafsheha. Thus, the court’s statement could be read to mean that Banafsheha did not give the police a description of the persons whom he stated struck him.
(f) Bral contends the trial court erred when it stated; “Mr. Banafsheha and Banafsheha’s family could not identify the assailant and didn’t see the incident.” There is evidence that Banafsheha’s father stated he saw the incident, and of course Banafsheha himself would have seen the incident since he was the person attacked. However, when considering the court’s statement that Banafsheha and his family could not identify who struck him the court was partially correct. When questioned by the police Banafsheha was only able to identify Dr. Hilton as having attacked him. He did not state the identity of another person whom he stated attacked him, and there is no evidence that anyone in his family was able to give a name to another person.
(g) Bral also asserts the trial court misread the record when it stated: “It was the defendant Bral who identified Hullaster as an assailant, based on the description given to him by another person, who has since died, after Bral saw Mr. Hullaster at another event; but this was after the underlying action had already been filed.” If we exchange the word “description” with the word “name,” the trial court was correct in what it said; and it is clear to us that the trial court was saying that it was Bral, not Hullaster, who put a name to this second person that Hullaster told the police attacked him, and thus essentially Bral, not Hullaster identified Hullaster as an assailant. Bral stated he saw Hullaster at a function, determined he matched the description that he had been given for the second assailant, asked his friend if he knew the person’s name, was told the person was a Mr. Hullaster and was Dr. Hilton’s brother, and when Bral later relayed to Banafsheha that he saw someone who could be the second assailant and described Hullaster to Banafsheha, Banafsheha said that Hullaster was the person. Banafsheha said Hullaster was his attacker without having ever seen Hullaster. Banafsheha said Hullaster was his attacker based solely on Bral’s description of him.
4. The Evidence Presented by Bral in Support of His Section 425.16 Special Motion to Strike Did Not Defeat Plaintiffs’ Evidence As a Matter of Law
To defeat Bral’s section 425.16 motion, the plaintiffs had to present a prima facie showing that their suit for malicious prosecution has at least “minimal merit.” As noted above, we do not determine credibility nor weigh the evidence presented by the parties. The evidence favorable to the plaintiff is accepted as true, and the defendant’s evidence is evaluated to determine if it defeats plaintiff’s evidence as a matter of law. Our review of the evidence convinces us that plaintiffs met their burden and defendant has not defeated their evidence as a matter of law. Therefore, this case must be sent back to the trial court for further pretrial proceedings.
a. Illulian And Wagshul
The trial court’s analysis of the evidence that we have set out above sufficiently supports the court’s finding that all of the plaintiffs met their burden of presenting a prima facie showing that the instant case has at least minimal merit. We need not reanalyze the plaintiffs’ evidence. Although Bral impliedly challenges Illulian and Wagshul’s evidence as not believable when they asserted in their summary judgment papers that they did not decide the details of their wedding and thus did not exercise control that would subject them to liability under Banafsheha’s cause of action for premises liability, we do not determine credibility or weigh evidence.
Regarding the issue whether Bral’s evidence defeats that the plaintiffs’ evidence as a matter of law, it does not. Bral argues that (1) he testified at his deposition, taken in the instant case, that when he read the contract between Rabbi Illulian and Hilton Hotel his interpretation of the contract was that “this was an event for, as it states on page 2 and thereafter in multiple locations, [Illulian’s] wedding, and that it was signed by one of their — one of her agents, [Rabbi] Illulian, on her behalf,” and (2) “[t]he indicia of agency are present” because Illulian and Wagshul lived in New York City when the wedding was planned, and therefore Illulian and Wagshul are responsible for not having security in place at their wedding. However, Bral’s reliance on an agency theory of liability appears to be an afterthought. He does not point to any evidence that agency was his theory, or one of his theories, of liability when he responded to the motion for summary judgment filed by Illulian and Wagshul. The issue in a malicious prosecution suit is whether the defendant attorney or litigant would have thought the underlying suit tenable when it was brought or as it proceeded through the trial court.
As noted above, if the trial court determines that the resolved, or undisputed, preliminary facts demonstrate that the prior suit was objectively tenable, there is no cause of action for malicious prosecution “even if the plaintiff can show that its adversary’s law firm did not realize how tenable the prior claim actually was.” This is because the adversary could have consulted a “more legally astute” law firm to bring an identical claim. (Sheldon Appel, supra, 47 Cal.3d at p. 882.) That rule would not come into play here because a control theory of premises liability and an agency theory of premises liability are not identical claims. Thus, we would reject an assertion by Bral that it is not important that Bral’s theory that Illulian and Wagshul are liable to Banafsheha under agency principles of premises liability was not presented by Bral until after Illulian and Wagshul obtained a summary judgment on Bral’s claim that they were liable to Banafsheha on a control theory of premises liability. Moreover, there are no preliminary facts to show that an agency theory would be objectively tenable since, as Bral observes, Illulian and Wagshul have “complain[ed] that [Bral] did not conduct discovery on the bride’s parents’ status as agents of the bride and groom in the arrangements made for the wedding and reception.”
Bral asserts that “if the average reasonable attorney would find that the cause of action against Illulian and Wagshul was tenable under any theory, whether or not advanced prior to or in connection with the underlying motion for summary judgment, [Illulian and Wagshul] cannot establish lack of probable cause.” However, Bral has not cited any authority for that contention. We observe, as we did earlier in this opinion, that the trial court must determine “whether, on the basis of the facts known to the defendant [in the malicious prosecution suit], the institution of the prior action was legally tenable.” (Sheldon Appel, supra, 47 Cal.3d at p. 878.) Since Bral did not conduct discovery on the issue of agency, Bral had no known facts on which to base a theory of agency. Further, a cause of action for malicious prosecution will lie when the underlying suit charged multiple grounds of liability and some but not all of them were asserted or pursued without probable cause and with malice. (Crowley v. Katleman, supra, 8 Cal.4th at pp. 671, 679. Thus, even if Bral had advocated premises liability on both a control and an agency theory of liability, we have already determined that Illulian and Wagshul have presented a prima facie case for this malicious prosecution suit based on the control theory asserted by Bral in the underlying action.
Finally, like the trial court, we find plaintiffs have also presented prima facie evidence of malice—Banafsheha’s testimony that the only reason the underlying action named Illulian and Wagshul as defendants was to obtain discovery evidence. Bral’s assertion that he consulted Witkin, reviewed materials from other attorneys and associated into the underlying case experienced co-counsel to support naming and pursuing Illulian and Wagshul does not defeat Banafsheha’s testimony as a matter of law.
b. Hullaster
Nor does Bral’s evidence defeat Hullaster’s evidence as a matter of law. The evidence of how Bral came to put Hullaster’s name to a description of the asserted second assailant fails in that regard. Bral testified he saw Hullaster at an event, learned Hullaster was Dr. Hilton’s brother, described Hullaster to Banafsheha, and Banafsheha affirmed that Hullaster was the second assailant. The simple assertion that no one else at the wedding fit the description does not make it so. And although Bral testified the deceased Danny told him Hullaster was at the wedding, Bral was not sure if Danny was at the wedding such that he could state as an eyewitness that Hullaster was there.
We also note that the often repeated, by Bral, portion of the description that Hullaster and the second assailant were wearing dark glasses at night was not a firm part of the description. Bral testified he thought persons had described the second assailant as someone who was wearing dark glasses at night. But when asked to describe the ponytail man, Banafsheha testified at his deposition taken during the underlying action that this assailant had a ponytail and clear glasses. He also testified that the second assailant “kind of looked like the guy who was — the short bald head guy in the Seinfeld movie but with hair.” Asked how short the ponytail man is, Banafsheha stated he is a “little shorter” than five feet nine inches. Yet, at the hearing on Bral’s special motion to strike, Bral argued that Hullaster had been described to him as being a tall man. Further Bral was asked at his deposition who it was that had given to him, prior to the filing of the underlying action, descriptions of persons asserted to have attacked Banafsheha. He stated he believed that Banafsheha’s father “gave a description of both individuals which matched their actual description. Yet, when Banafsheha’s father was deposed and asked to describe the two men whom he stated assaulted Banafsheha, Banafsheha’s father testified he did not remember whether both men were similar looking, and he could not remember any differences between the two men.
The trial court found Hullaster presented evidence of malice in Bral’s pursuing Hullaster in the underlying action because there is an inference that the suit was knowingly brought without probable cause since there were no eyewitness statements that could identify Hullaster as the assailant. To that we add that the evidence regarding there being a second assailant was porous. Many people stated there was only one assailant; there was a lack of a firm description of the asserted second assailant; Banafsheha’s description at trial did not match the description from which Bral stated he worked in trying to identify the second person; and the entire scenario of how Bral settled on it being Hullaster—the information from his friend Danny at an event they attended—is reasonably described as cavalier. Bral’s contention that co-counsel was associated into the underlying case as trial counsel to pursue the case against Hullaster does not preclude a finding of malice.
The order from which Bral has appealed is affirmed. Costs on appeal to plaintiffs.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.
Footnotes
1. Plaintiff Hullaster was not initially named as a defendant in the underlying action. He was added to that case by Doe amendment on January 30, 2007. That was seven months after Banafsheha filed the prior suit, and approximately 19 months after a June 2005 assault and battery on Banafsheha that caused him to file that suit. Also named as defendants in the prior action were Hullaster’s brother, Pedram D. Nassir aka Daniel P. Nassir Hilton, M.D. (Dr. Hilton), and the Los Angeles/Universal City Hilton Hotel.
2. According to Bral’s declaration filed in support of the special motion to strike, after Bral filed the underlying action he associated Milliken into that case because Milliken “had been in practice for over 30 years” and Bral wanted to have someone on the case who could confirm that Bral’s “prosecution of the action was proper.” Milliken withdrew from the case in April 2008.
3. The police report contains two different versions of what occurred at the wedding. A witness, Kathy Illulian, told the police that Banafsheha was struck in the head by a man, and when Banafsheha fell to the ground the same man “jumped on him in an attempt to strike him again [but s]everal people pulled the two of them apart.” In contrast, Banafsheha told the police that he was struck in the head by the person who was denominated in the police report as suspect 2, and then when Banafsheha was on the ground someone that the report calls suspect 1 jumped on him and began striking him and suspect 1 was pulled off of him by several people.
4. In his moving papers for the special motion to strike, Bral stated that Illulian and Wagshul were sued in the underlying action on a theory that they were negligent because they did not have any security guards at their wedding even though there were over 500 guests, there was an open bar, the area of the hotel is known for gang activity, and the hotel remained open to the public. Bral stated that although Illulian and Wagshul claimed in the underlying action that they left the planning of the wedding to Illulian’s parents, they admitted, as did Rabbi Illulian, that they participated in drawing up a guest list and thus, “they shared control over that aspect of the wedding and reception.” However in his reply papers for his special motion to strike, Bral acknowledged that when he was deposed in the instant case he testified that after he reviewed the contract that Rabbi Illulian signed with Hilton Hotel, his interpretation of the contract was that the rabbi was acting as an agent for his daughter and he signed the contract on her behalf. Bral argued in his reply papers that Illulian and Wagshul were liable to Banafsheha because when “their agent, Rabbi Illulian,” planned and arranged the wedding and reception to be at the hotel their agent failed to provide for adequate security.
5. In April 2008 the trial court in the underlying action granted Illulian and Wagshul’s motion for summary judgment against Banafsheha, and in June 2008 a judgment on a jury verdict in favor of Hullaster and against Banafsheha was entered.
6. Hilton Hotel’s cross-complaint in the underlying action was filed on December 14, 2006, six months after that action was filed. Named as cross-defendants were Dr. Hilton and Rabbi Illulian. The cross-complaint alleged that the cross-defendants were in some manner responsible for the events alleged by Banafsheha in his complaint, and it asserted causes of action against both cross-defendants for indemnification, apportionment of fault, and declaratory relief, as well as a cause of action against Rabbi Illulian only for express indemnification that was based on the contract for Hilton Hotel services for the wedding that the rabbi signed. The cross-complaint specifically states that the contract was entered into by Hilton Hotel and Rabbi Illulian.
7. Plaintiffs were granted a continuance of the hearing on Bral’s special motion to strike so that they could conduct discovery prior to filing opposition to that motion. (§ 425.16, subd. (g).)
