He's been on the Court of Appeal for less than 15 months. But I can already typically tell when it's Justice Wiley who's writing the opinion around three pages into it. His style is that distinctive.
This opinion is much more staccato than his usual prose. I sometimes write a little like that as well. Particularly when I'm cranking things out quickly (or trying to cram numerous arguments into a short number of pages). I'm not sure it always reads especially well when I do. But it's a style.
As for the merits, it's a malicious prosecution case, and the issue centers around what you have to show to demonstrate a certain type of "malice" in those cases; namely, that you added someone to a lawsuit for the "improper purpose" of forcing a settlement that "has no relation to the merits of the claim." It's a case in which a plaintiff added a defendant (ostensibly on alter ego grounds) and then promptly dropped him from the suit once a safe harbor motion was filed. Justice Wiley holds that there was no proof of malice, so affirms the dismissal of the malicious prosecution suit.
Justice Wiley says a lot of things are are clearly right (and relevant); for example, that the fact that someone has added a party in order to up the settlement amount is insufficient proof of an improper purpose, since the whole purpose of changing pleadings (adding parties, etc.) -- indeed, the central purpose of anything in a lawsuit done by the plaintiff -- is to increase settlement value.
Justice Wiley says "unrelated to the merits" many times in the opinion -- indeed, puts it in italics twice -- as a sort of mantra. He's trying to figure out what it means. But he never appears to even attempt to describe what the term affirmatively means. He just takes the ten different arguments that the plaintiff makes and shoots them down one-by-one as purportedly insufficient.
Which is too bad. Because I think that giving examples of what that term does mean would both help future litigants as well as provide some insight into maybe why the evidence isolated by the plaintiff here might indeed be relevant (or perhaps even sufficient) notwithstanding the Justice Wiley's rapid rejection of each of those individualized components of proof.
Let me give you an example. Somewhat analogous (albeit more obviously malicious) than the present case. Let's say a plaintiff files a personal injury lawsuit against Defendant X. Maybe X is Costco. Maybe it's my brother-in-law. Whatever. There are Doe defendants, and midway through the lawsuit, the plaintiff in that suit (like the plaintiff here) adds me -- Shaun Martin -- to the suit, claiming (as here) that I'm an "alter ego" or in some way responsible for the suit. Maybe the theory is that I'm a Costco member because I'm liable. Maybe it's because I talked to my brother-in-law about sports eighteen months ago. Again, whatever. The point is that the claim raised by plaintiff is totally without merit. Frivolous, even.
So (as in the present case) I file a safe harbor sanctions motion, the other side is (as Justice Wiley aptly notes here) appropriately cowed, and dismisses me from the suit. I then file a malicious prosecution action. How am I to prove "malice" under the "improper purpose" prong?
Let's say I don't have evidence, or even reason to suspect, that the plaintiff actually hated me. But I'm pretty sure he added me to the lawsuit for a fairly obvious reason. One familiar to anyone who's litigated cases for a while. Pure extortion. He knew I had money. He knew it would cost me money to defend. So he thought I'd be willing to pay a fraction of my cost of defense to be dropped from the suit. Good for me, good for him.
Well, to me, that's unambiguously filing a suit for an "improper purpose" that's "unrelated to the merits" of the suit. Indeed, it's probably the archtype of this sort of improper purpose.
Yet every single thing that Justice Wiley says in this opinion about why the evidence in the present case is insufficient seems to apply totally equally to the hypothetical I've just given. The purpose was the increase a settlement, sure, but that's not enough, and the merits of the lawsuit were frivolous, but that's not enough, and they were cowed by a motion for sanctions, but that's not enough, etc. Every piece of evidence is the same. Yet I am totally confident that the plaintiff in my hypothetical should prevail -- at least on summary judgment (as on an anti-SLAPP motion in the present case -- yet the Court of Appeal says the present case, despite its near identity to my hypothetical, loses.
Why? Why does my affirmative hypothetical about what's sufficient prevail? What's the evidence there that gets the plaintiff past the hump?
I think it's because of one of the very things that Justice Wiley casually dismisses in his opinion: the lack of probable cause. Yes, I agree, lack of probable cause (the merits) is a different element than the presence of malice. But I don't think they're entirely independent. Reasonable inferences about the former may well be sufficient to establish the latter.
Let's take an even more extreme hypothetical. Tomorrow, someone who's hit by a car in Alabama driven by X decides to sue Justice Wiley for this accident. Justice Wiley's never been to Alabama. He has nothing whatsoever to do with the accident. The plaintiff pleads that Justice Wiley caused the accident, but the pleadings don't explain why (or they're simply nonsense), and more importantly, it's just totally untrue. It's like Justice Wiley was randomly picked out of a hat to be sued.
Now, plaintiff doesn't admit that he picked Justice Wiley's name out of a hat. Nor is he stupid enough to send a settlement letter that says "Give me $10,000 in settlement because it'll cost you more than that to come to Alabama and hire a lawyer and get the suit dismissed." He just tells Justice Wiley: "I think you're responsible, and my damages are $100,000, so I think you should pay $10,000 to settle the case."
That's a paradigmatic example of someone obviously extorting someone; i.e., filing a lawsuit for an improper purpose "unrelated to the merits" of the suit. But the only way we know that is because we look at the merits and say: "This is obviously crap. There can't be any purpose other than extortion to sue a guy so totally unrelated on the merits." But Justice Wiley's opinion says: "Nope. Can't do that. Lack of probable cause can't establish malice. Different elements."
There may be cases where lack of probable cause is sufficiently close that, yes, you've got to have more. Maybe the present case is one of them. But it seems to me that there are also cases in which sufficient lack of probable cause even standing alone generate a reasonable inference that the suit was for an improper purpose. My hypotheticals, definitely. Maybe even (at least arguably) in the present case, though I'd have to think about it more.
The point is this. First, sometimes it helps to say what is sufficient before you complete your task of adjudicating what's purportedly not sufficient. Good for you, good for the public.
Second, and more concretely, here, I think it's insufficient -- and probably affirmatively bad law -- to say that (as the Court of Appeal does here) that absence of probable cause categorically is insufficient to prove malice because it's a different element. Sometimes when you say something super quickly, it's not as well thought-out as it might otherwise be. Here is, in toto, what Justice Wiley says on this point:
"Ninth, Zhang argues the trial court’s finding on element
one -- no probable cause -- should satisfy element three: malice.
This argument is legally invalid. The two elements are distinct.
(Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 493–499.)"
That's pretty darn fast. Particularly for a topic that the cited case talks about for six or seven full pages.
Plus, it bears mention that the cited case isn't controlling authority; it's just a Court of Appeal opinion from a couple of decades ago. One that I suspect may well be wrong. Downey Venture says that the existence of a subjective belief (e.g., wrongful intent) not only can never be inferred from objective assessments (e.g., lack of probable cause), but that the latter isn't even relevant to the former. Not so, I think. When my friend points at the sky and says "The sky is green," the objective frivolousness of that assertion is some -- indeed, is powerful -- evidence that he does not subjectively perceive it so. It may not be conclusive proof. But it's darn relevant. So too here.
So this stuff is worth thinking about. Maybe even talking about at some length. Because I'm fairly confident the truth lies somewhere in between the competing categorical statements "Absence of probable cause always shows malice" and "Absence of probable cause never shows malice."
And it's important. Especially when you're imposing an attorney's fees award on an anti-SLAPP motion.
