Wednesday, February 24, 2010

Daniels v. Robbins (Cal. Ct. App. - Feb. 24, 2010)

Lawyers get sued for malicious prosecution. It happens. When they do, they almost invariably file anti-SLAPP motions. Rightly so.

There's some good stuff in this opinion for people on both sides of this equation -- both plaintiffs who sue (and then oppose the anti-SLAPP motion) and the defendant attorneys. Justice Ikola writes a good opinion that does a great job of analyzing and interpreting precedent, as well as (rightly) rejecting some discordant interpretations of the way in which the various malicious prosecution prongs work. On the law, it's a very good, and comprehensive, opinion.

Plaintiffs will like the fact that it's takes a tolerably pro-plaintiff interpretation of most of the factors. Not overly so, but it avoids the overly pro-defendant tilt of some prior precedent in this area. Mistakes that, in part, arise from an understandable desire to get rid of frivolous malicious prosecution lawsuits against lawyers. So on a variety of points, this is a pretty good opinion for plaintiffs: on what constitutes favorable termination, on what "probable cause" means, etc.

Nonetheless, in the end, the Court of Appeal affirms the grant of the anti-SLAPP motion, finding that the plaintiff can't prove malice. Which is almost always the hardest element for plaintiffs in malicious prosecution lawsuits against the lawyers (as opposed to the principals). On this point, the likely defendants -- which means us California lawyers -- are likely to find a great amount of solace.

But I wonder if Justice Ikola's fully right on this point. Sure, here, the lawyers don't have any personal (non-financial) stake in the outcome, and hence the usual type of "malice" arguments don't apply. But they did file a barebones complaint. And they did utterly fail to support it with any actual facts -- which ultimately led to its dismissal. I agree with Justice Ikoa that the initial filing of the complaint seemed fine, as I presume the lawyers relied on the client. But I also agree with him that the continuation of a lawsuit can give rise to malicious prosecution, and on this point, I wonder if the plaintiffs haven't made out a case.

The lawyers here, after all, only gave a bare-bones affidavit in support of the summary judgment motion. It'd be one if the lawyers declared "Our clients told us X, and we relied on X, and the lawsuit was dimissed only because the client kept refraining from producing discovery and letting us prove X at trial, notwithstanding our repeated requests." If that's the case, I'm totally on board for no malice. But the lawyers here don't say that; indeed, what they don't say in this regard seems more significant than what they do say. If a client keeps refusing to provide any discovery, even after repeated court orders, and you still don't have any facts, and you still continue to prosecute the suit, that seems like that might well constitute malice to me.

I'd have to know a little more about the facts to know whether that definitely transpired here. But the one deficiency I found in Justice Ikola's opinion was the part in which he deals with this point and essentially says "Just because you don't have any facts doesn't mean you can't still sue someone." I'm not entirely persuaded by that. If the reason you could file suit in the first place was because your client said X, and yet your client repeatedly -- and after multiple court orders -- refuses to produce X, at some point, it seems to me that you can no longer rely on X. At that point, continuing the suit might indeed constitute actionable malice. Even if the only type of "malice" we are talking about here is the willingness to deliberately continue to sue someone in order to get a contingent fee from a case that you now know lacks merit.

Again, this is a very good opinion from the Court of Appeal. I have an issue with one portion of it. But that shouldn't take away from the remainder. Which remains outstanding.