Opinion
G029633.
11-26-2003
DARLENE DEHARO, Plaintiff and Appellant, v. STEVE WHITE et al., Defendants and Respondents.
Erika W. Senter for Plaintiff and Appellant. Law Offices of Milo F. De Armey and Milo F. De Armey for Defendants and Respondents.
Darlene DeHaro brought this malicious prosecution action against the defendants for filing an unlawful detainer action to remove her from her deceased fathers home. DeHaro filed an unsuccessful motion for summary adjudication on the issue of probable cause; and the case went to trial, resulting in judgment for the defendants. On appeal, DeHaro claims the trial court should have granted the motion for summary adjudication. The defendants have requested sanctions against DeHaro for filing a frivolous appeal. We affirm the judgment but deny the request for sanctions.
FACTS
In her complaint for malicious prosecution, DeHaro alleges she is the daughter and sole heir of Agapito Hernandez, who died holding title to a house in Anaheim. She lives in the home and claims she has inherited her deceased fathers ownership. Defendant Joseph White claims a share of the property as a tenant in common with Hernandezs estate; this claim was adjudicated in the probate court but no final judgment had been entered. Defendant Steve White is the administrator of the estate, and defendant Milo F. De Armey was the Whites counsel of record during the unlawful detainer action.
DeHaro alleged the defendants instituted the unlawful detainer action "with full knowledge of the well-settled law and advice of all relevant facts which established that under no circumstances could an unlawful detainer reasonably lie . . . ." The trial court granted the unlawful detainer, and DeHaro appealed to the appellate department of the superior court. The appellate tribunal reversed, finding the defendants had no standing to bring the unlawful detainer action in the absence of a final judgment awarding them any interest in the property. Furthermore, the appellate tribunal found there was no showing of a landlord-tenant relationship between DeHaro and the defendants. The appellate tribunal directed the trial court to enter judgment for DeHaro.
DeHaro further alleged the defendants acted without probable cause and with malice in bringing the unfounded unlawful detainer action. She claimed the defendants knew she was indigent and disabled and would not "be able to readily . . . obtain a substitute residence."
DeHaro brought a motion for summary adjudication, urging the trial court to rule the defendants had no probable cause to bring the unlawful detainer as a matter of law because the appellate department not only reversed the lower courts judgment against her but directed judgment in her favor. The trial court denied the motion, stating, "Plaintiff seeks to eliminate . . . the need to prove several elements of her cause of action for malicious prosecution. . . . [T]he motion [is not] available to eliminate the need to prove one or more elements of her cause of action." The case went to trial; DeHaro introduced documentary evidence and called Steve White and De Armey as witnesses. The trial court found DeHaro had not established all the elements of her cause of action and rendered judgment for the defendants.
DISCUSSION
Denial of summary adjudication was correct.
DeHaro contends the trial court should have granted the motion for summary adjudication. She contends the lack of probable cause presented an issue of duty that could have been summarily adjudicated under Code of Civil Procedure section 437c, subdivision (f)(1) ["A party may move for summary adjudication as to one or more causes of action . . . or one or more issues of duty . . . ."]. She also contends the lack of probable cause presented a pure question of law that should have been decided in her favor. The failure to adjudicate the issue of probable cause before the trial, DeHaro argues, prejudiced her because if the trial court "had found that defendants indeed proceeded without probable cause, [she] could have taken that finding to trial and argued that malice could and should be inferred from such a finding."
DeHaros appeal must fail because she is wrong on the issue of probable cause. Under the applicable cases, the defendants initial success in the unlawful detainer action establishes probable cause as a matter of law.
"[T]he existence or nonexistence of probable cause is a legal question to be resolved by the court in the malicious prosecution case . . . . [P]robable cause is determined objectively, i.e., . . . probable cause exists if `any reasonable attorney would have thought the claim tenable." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.) It has long been established that "a trial court judgment or verdict in favor of the plaintiff . . . in the underlying case . . . establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court." (Ibid.) In Wilson, the Supreme Court extended that long-standing rule to hold that the denial of a motion to strike an action as a strategic lawsuit against public participation (SLAPP), on the ground that the plaintiffs had demonstrated a probability they could prevail, established the existence of probable cause to bring the action and precluded a subsequent malicious prosecution action. (Id. at p. 815.)
DeHaro contends the opposite result should obtain when the reversing appellate panel directs the trial court to enter judgment for the defendant, i.e., this circumstance should establish the lack of probable cause as a matter of law. In support of her contention, she cites George F. Hillenbrand, Inc. v. Insurance Company of North America (2002) 104 Cal.App.4th 784. In Hillenbrand, an insured brought a malicious prosecution action against his insurer, claiming it had brought a declaratory relief action on its duty to defend him without probable cause. The trial court in the declaratory relief action initially granted the insurers motion for summary judgment, which sought to establish there was no potential for coverage of the claim against its insured. Upon the insureds motion for reconsideration, however, the trial court considered additional evidence that had been acquired since the initial hearing; it "revoked and set aside [the] earlier ruling granting summary judgment in its entirety and denied the insurers motion." (Id. at p. 809.)
In the subsequent malicious prosecution action, the insurer argued that "one ruling in its favor, no matter how fleeting, establishe[d] probable cause as a matter of law." (George F. Hillenbrand, Inc. v. Insurance Company of North America, supra, 104 Cal.App.4th at p. 809.) The trial court disagreed, explaining that the previous trial judge had first ruled without all the facts before him and had admittedly misapplied the law in the matter. The appellate court agreed with the trial court that when a trial judge corrects his own error, the initial ruling has no significance. "A favorable ruling or verdict after trial is conclusive evidence that the lawsuit was not unwarranted or groundless. But a ruling reconsidered and rectified sheds no light on the legal viability of a claim. . . . We are unwilling to deny a plaintiff a remedy for malicious prosecution simply because a trial judge committed a mistake he himself promptly undid." (Id. at p. 811.)
Hillenbrand does not suggest a different result in the case before us. Notwithstanding the unequivocal reversal of the unlawful detainer action against De Haro, the trial court judgment against her established that the defendants had probable cause to bring the action. Thus, she is precluded from maintaining a malicious prosecution action against them as a matter of law.
Sanctions are not warranted.
Code of Civil Procedure section 907 provides, "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." California Rules of Court, rule 27(e) authorizes an appellate court to "impose sanctions, including the award or denial of costs, on a party or an attorney for . . . taking a frivolous appeal or appealing solely to cause delay . . . ." A frivolous appeal is one that is "prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or . . . indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) But an appeal will be labeled frivolous only under the most egregious circumstances. "[A]ny definition must be read so as to avoid a serious chilling effect on the assertion of litigants rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions." (Ibid.)
Defendants have not presented evidence of bad faith. They merely criticize the trial tactics of DeHaros counsel and complain that the appeal was filed to force a settlement of other matters before this court. And while this was not a close case on the merits, the issues presented were arguable. Sanctions are not appropriate here.
DISPOSITION
The judgment is affirmed. The request for sanctions is denied. Respondents are entitled to costs on appeal.
WE CONCUR: RYLAARSDAM, J., BEDSWORTH, J. --------------- Notes: DeHaros motion for summary adjudication also sought to eliminate the statute of limitations defense and establish malice as a matter of law.