Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline A. Connor, Judge, No. SC085580
Law Office of Joseph D. Davis, Joseph D. Davis; and Charlotte E. Costan for Plaintiff and Appellant.
Richardson & Harman, Kelly G. Richardson and Richard C. Moore for Defendant and Respondent.
MALLANO, P. J.
In a prior lawsuit, Gina F. sued Eugene L. for damages for allegedly infecting her with the human papilloma virus (HPV), a sexually transmitted disease. (Super. Ct. L.A. County, 2004, No. GC031240.) Eugene obtained a final judgment in his favor and then brought the instant malicious prosecution action against both Gina and her attorney in the underlying action, Stephen Belgum. The trial court granted Gina’s summary judgment motion on the ground that there was no dispute of material fact that she had established the defense of reliance on the advice of counsel, which defense established that she had probable cause to bring her underlying action against Eugene. Because there are triable issues of material fact as to this defense, we reverse the summary judgment.
In a related appeal between Eugene and Belgum, we reversed the order granting Belgum’s special motion to strike Eugene’s malicious prosecution claim. We held, among other things, that Eugene had established a prima facie case for malicious prosecution against Belgum. (Eugene L. v. Belgum (Nov. 10, 2008, B199200) [nonpub. opn.].)
BACKGROUND
In our review of a summary judgment, we independently examine the record to determine whether triable issues of fact exist to reinstate the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We view the evidence in the light most favorable to Eugene as the losing party, liberally construing his evidence, strictly construing the evidence provided by Gina as the moving party, and resolving any evidentiary doubts or ambiguities in Eugene’s favor. (Ibid.)
In 1993, Eugene had a condition known as “genital warts,” which he learned in March 2002 to be condyloma, a manifestation of HPV. Gina and Eugene dated and had unprotected sexual intercourse in February 2002. After Gina tested positive for HPV in March 2002, she consulted Belgum in April 2002. In February 2003, Belgum, on Gina’s behalf, sued Eugene for damages, alleging that Eugene had infected her with HPV. Eugene moved for summary judgment. In May 2004, the court granted his motion on the ground that, as opined in a declaration by Eugene’s expert gynecologist Dr. Amy Rosenman, Gina could not prove within a reasonable medical probability that it was Eugene who had infected her with HPV. Gina appealed from the judgment, but the appeal was dismissed. A remittitur was issued in December 2004. (B177813.)
In May 2005, Eugene filed the instant action for malicious prosecution against both Gina and Belgum. Eugene filed a first amended complaint (complaint) in October 2005. After answering the complaint, Gina moved for summary judgment on the ground that she relied on the advice of counsel in initiating the underlying action, thus defeating one of the elements of Eugene’s malicious prosecution claim.
Probable cause may be established by a defendant in a malicious prosecution action by proving that he or she in good faith consulted a lawyer, stated all the facts to the lawyer, was advised by the lawyer that there is a good cause of action, and honestly acted upon the advice of the lawyer. (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383 (Palmer).) “Conversely, if the defendant acted in bad faith or withheld facts from counsel he or she knew or should have known would have defeated the cause of action, probable cause is not established. . . . The burden of proving good faith reliance on the advice of counsel falls on the party asserting the defense.” (Id. at pp. 1383–1384.)
In support of her defense of good faith reliance on counsel, Gina provided her declaration as well as that of Belgum. Gina declared as follows: Before her relationship with Eugene, she had not been diagnosed with HPV; she disclosed to Belgum “all of the relevant facts” known to her regarding the underlying action, including her relationship with Eugene and her sexual and medical history; she granted Belgum access to her medical records; Belgum advised her that she had probable cause to file a complaint against Eugene, and Belgum agreed to represent her in the matter; Belgum filed her complaint against Eugene in February 2003; at all times during the course of the underlying action, she relied upon Belgum’s advice in handling all matters, including settlement demands and attempts to informally resolve the dispute; at no time after the filing of the complaint and during the course of discovery in the underlying action did Belgum tell her that he had changed his evaluation of the case.
Belgum declared as follows: Gina consulted with him in April 2002 regarding the facts of the underlying action; she cooperated fully with him and provided all of the information available to her so that he could evaluate her case; he advised her that she had probable cause to file the complaint against Eugene; he filed such complaint in February 2003; at no time after the filing of the complaint or during the course of discovery did he advise Gina that he had changed his evaluation of the case; and at no time did he discover that the facts of the underlying action differed from the account of the events related to him by Gina.
In opposition to the motion, Eugene argued that the evidence established that Gina did not make a full, fair and complete disclosure of all facts of her sexual history to Belgum, and indeed “she deliberately lied to attorney Belgum with regard to the number of her sexual partners prior to [Eugene] . . . .” Discovery obtained by Eugene’s attorney established that in April 2002 Gina sent Belgum an e-mail with information under a heading “Pertinent History” in which she disclosed sexual relationships with two men from April 1998 to December 2001. Gina also asserted in her e-mail that she was “tested for every STD in the summer of 1998” and that she “tested negative for everything.” The two men with whom she had relations between 1998 and 2001 also were recently tested for HPV and their results were negative.
The specific details in Gina’s April 2002 e-mail were not set out in her declaration, nor offered by her under oath or penalty of perjury in support of her motion. Eugene apparently offered the e-mail to show that Gina did not reveal to Belgum her entire sexual history before her complaint was filed in February 2003. According to Rosenman’s declaration, there was no FDA-approved test for HPV until 1999.
According to Eugene, Gina told him during the time they dated that she had had sexual intercourse with 12 men before him and that in 1997 she had a sexual relationship with Joe F., the creator of the “Girls Gone Wild” videos and who claimed to have had sexual relations with hundreds of women. In August 2003, Gina provided verified responses to interrogatories in which she admitted to having sexual relations with seven men between March 1993 and February 2003; Joe F. was not one of the men listed in her response. When Gina was deposed in December 2003, she supplied the name of Joe F.
Eugene also argued that, in light of the statistical evidence in the declaration of Dr. Rosenman, the greater the number of sexual partners before Eugene, the more likely it was that Gina was infected with HPV before she met Eugene. According to Rosenman, HPV is the most prevalent sexually transmitted infection in the world, occurring at some point in 75 percent of sexually active adults; although the infection is widespread, few people know that they are infected because they seldom have noticeable symptoms; about 25 percent of those infected will develop warts; and multiple sex partners is a major factor in determining whether a person becomes infected with HPV. It was not possible to attribute Gina’s HPV exposure to Eugene in the absence of a thorough and reliable exposure history of Gina and her partners. In Rosenman’s opinion, it could not be proven to a reasonable degree of medical probability that Eugene infected Gina with HPV.
In reply, Gina contended that to establish the defense of reliance upon counsel, not all facts, but only all material facts, needed to be disclosed to her attorney and that it was sufficient that she revealed to her attorney the facts that Eugene “knew he had genital warts/HPV, lied to [her] about it, had unprotected sexual intercourse with [her] and [she] subsequently tested positive for the disease for the first time in her medical history. These facts were revealed to her counsel and are sufficient to establish a reasonable belief that the evidence will support a favorable judgment.”
After a hearing in June 2007, the court granted Gina’s motion. Eugene appealed from the judgment.
DISCUSSION
In her respondent’s brief, Gina acknowledges that the advice of counsel defense requires that she acted in good faith and fully and truthfully disclosed to Belgum facts relevant to the issue of probable cause. (Palmer, supra, 109 Cal.App.4th at p. 1383.) Gina forthrightly admits that she did not provide Belgum with her complete sexual history. But she asserts that “the test is not whether [she] disclosed everything, but whether she disclosed everything that was pertinent,” and “[t]here was no need for [Gina] to tell her attorney about any prior sexual relationships [before 1998] because there was no reason for her to assume that they were the source of the infection,” given her negative results after comprehensive testing for sexually transmitted diseases in the summer of 1998. Gina contends that she concealed nothing from Belgum which would have rendered her suit “untenable” or which would have defeated probable cause. She maintains that “probable cause means ‘reasonable cause,’ which is defined as ‘a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.’” Gina thus proposes a standard of probable cause requiring only a reasonable belief that the claim may be valid. As explained below, the more well-reasoned authorities have rejected the foregoing formulation of the probable cause element of a malicious prosecution action as it relates to the issue of the sufficiency of the facts known to the defendant.
Gina misplaces reliance on Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886, and Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 568, which address the aspect of probable cause involving the viability of a particular legal theory of liability and not the sufficiency of the facts to support a viable legal theory. Only the latter aspect of probable cause is at issue here. Also of no aid to Gina are the following cases, which do not involve the issue of the sufficiency of the facts of causation required to establish probable cause to prosecute a personal injury action: Kennedy v. Byrum (1962) 201 Cal.App.2d 474 (underlying action for forgery of conditional sales contract); Masterson v. Pig’n Whistle Corp. (1958) 161 Cal.App.2d 323 (underlying action for breach of contract); Albertson v. Raboff (1960) 185 Cal.App.2d 372 (underlying action sought a lien on real property).
“A lack of probable cause may arise from an insufficiency in the facts or the law.” (Puryear v. Golden Bear Ins. Co. (1998) 66 Cal.App.4th 1188, 1195 (Puryear).) Where the issue is the insufficiency in the facts known to the defendant, “probable cause requires evidence sufficient to prevail in the action or at least information reasonably warranting an inference there is such evidence.” (Ibid.) Thus, probable cause is lacking “when a prospective plaintiff and counsel do not have evidence sufficient to uphold a favorable judgment or information affording an inference that such evidence can be obtained for trial.” (Ibid.)
The court in Puryear rejected the “less stringent” majority rule for probable cause in civil actions set out in Restatement Second of Torts section 675, which provides that probable cause exists if one “‘reasonably believes in the existence of facts upon which the claim is based, and . . . [¶] (a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law . . . .’” (Puryear, supra, 66 Cal.App.4th at p. 1196.) “The Restatement rule is predicated on a dilemma to prosecute or perish that is obviated by an unusual feature of California procedural law. That feature is the unique broad scope of our fictitious defendant practice under Code of Civil Procedure section 474. [Citation.] [¶] Under Code of Civil Procedure section 474, a plaintiff who lacks sufficient evidence to prove a cause of action, or information warranting an inference that such evidence will be obtained, can ‘otherwise effectively enforce its rights’ by use of a Doe allegation . . . . Since the reason for the Restatement rule does not apply to this case, neither does the rule.” (Puryear, supra, 66 Cal.App.4th at p. 1197.)
Puryear’s probable cause standard was adopted in Arcaro v. Silva & Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156–157, and Palmer, supra, 109 Cal.App.4th at page 1383.
Relying on Summers v. Tice (1948) 33 Cal.2d 80 (Summers), Gina argues that she could prevail at trial “merely by establishing it was more probable than not that [Eugene] infected her,” and that a “doctor’s opinion on causation is not and never has been a prerequisite to filing a tenable personal injury claim.” Summers is inapposite. Further, no legal authority is cited to support Gina’s claim that a doctor’s opinion is not required to establish causation in this case.
“In Summers, plaintiff was injured when two hunters negligently shot toward him. [Citation.] Because it was impossible to determine which defendant had fired the shot causing the injury, both defendants were held jointly and severally liable. The court concluded that both were negligent, and it was unfair to require the plaintiff to prove which defendant was responsible. Concluding the defendants were in a better position to offer evidence on the question of causation, the court shifted the burden of proof to the defendants, ‘each to absolve himself if he can.’” (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 812.) But Summers’s alternative liability theory has been applied only when all potential tortfeasors have been joined as defendants. (Kennedy, at p. 812.) Because Gina had not joined as defendants in the underlying action all sexual partners who potentially could have infected her with HPV, Summers was inapplicable and could not provide a rule of causation for the underlying action.
Further, “in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403.)
Here, there are triable issues as to whether Gina provided Belgum with all relevant facts. Based on Rosenman’s undisputed evidence, 75 percent of sexually active adults have HPV, only 25 percent of those infected with HPV will develop noticeable symptoms, warts may appear months or even decades after exposure, and the first FDA-approved test for HPV was available in 1999. If so, Gina’s sexual history from 1993 to 1998 is relevant to the causation issue because the high prevalence of HPV in the population of sexually active adults and the potentially long latency period is relevant to the issue of whether it could be shown within a reasonable medical probability that it was Eugene and not another of her sexual partners who infected Gina with HPV.
The evidence offered by Gina in support of the motion is too conclusory to conclude that she disclosed all relevant facts about her medical and sexual history to Belgum in 2002. Gina declared that she disclosed “all relevant facts known to her regarding the underlying action.” But she did not explain how she defined “relevant” and precisely what facts were disclosed. Belgum’s declaration is similarly conclusory, stating only that Gina provided “all of the information available to her so that he could evaluate her case.” The issue is further clouded because evidence offered by Eugene in opposition to the motion revealed discrepancies as to Gina’s disclosures of her sexual history to Belgum in the underlying action, as shown by the omission of a 1997 sexual partner from her interrogatory responses and her later disclosure of that partner in her deposition testimony.
Giving Eugene the benefit of all reasonable inferences from the conclusory nature of Gina’s declaration and from the discrepancies in her disclosures in the underlying action, we conclude that there are triable issues as to whether Gina provided Belgum with all pertinent facts or whether she “withheld facts from counsel [that] she knew or should have known would have defeated the cause of action . . . .” (Palmer, supra, 109 Cal.App.4th at p. 1383.) As Gina failed to establish the defense of reliance on the advice of counsel, the summary judgment must be reversed.
DISPOSITION
The summary judgment is reversed. Eugene L. is entitled to costs on appeal.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In addition to a claim for malicious prosecution, Eugene’s first amended complaint also contained a negligence claim. Eugene abandoned that claim during the proceedings below and neither party addresses it here, so we need not discuss it further.