Opinion
NOT TO BE PUBLISHED
Appeal from order of the Superior Court of Los Angeles County, No. BC383823, Kenneth R. Freeman, Judge.
Robert D. Wilner for Defendant and Appellant.
Martina A. Silas, in pro. per., for Plaintiff and Respondent.
JOHNSON, J.
In this appeal, we are presented once more with the issue of whether plaintiff Martina A. Silas (Silas) has stated a prima facie case of malicious prosecution arising out of an underlying legal malpractice action that was adjudicated in her favor. This appeal involves another one of the lawyers in the legal malpractice case, James Ellis Arden (Arden). Silas sued a number of lawyer defendants in addition to Arden, including Arden’s now-dissolved legal partnership (Scott, Arden & Salter LLP), for malicious prosecution and abuse of process, arising from a legal malpractice action that Ross Gunnell (Gunnell), a former client of Silas, brought against her. Silas prevailed on summary judgment in the legal malpractice action. Arden was one of Gunnell’s attorneys in the legal malpractice case.
In Silas v. Dion-Kindem (Mar. 11, 2009, B208655) [nonpub. opn.], this division affirmed the trial court’s order denying the motion of Dion-Kindem, another one of the attorneys in the legal malpractice action (and a defendant in this case), to strike Silas’s malicious prosecution claim and denying Dion-Kindem’s request for attorney’s fees.
Division Eight in this district affirmed the summary judgment in the legal malpractice action in Gunnell v. Silas (Jan. 27, 2006, B180744) [nonpub. opn.].
The legal malpractice case, in turn, arose from a workplace personal injury matter in which Silas had represented Gunnell. Silas tried the personal injury case to a jury and obtained a substantial damages award for Gunnell, but the injury was ultimately found to be compensable only through California’s Workers’ Compensation Act (WCA) system and was not exempt from the WCA under one of the few narrow exceptions to that statutory scheme. (See Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710 (the personal injury case or action).)
Arden filed an anti-SLAPP motion to strike the complaint under Code of Civil Procedure section 425.16. The trial court granted the motion as to the abuse of process cause of action, but denied the motion as to the malicious prosecution cause of action. On appeal, Arden contends Silas failed to produce admissible evidence showing a viable prima facie case of malicious prosecution. We disagree and affirm the order.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1 (Jarrow).)
All further unspecified statutory references are to the Code of Civil Procedure.
The facts are drawn from the complaint in this case and the declarations submitted in support of, and in opposition to, the anti-SLAPP motion to strike. In reviewing the trial court’s ruling on an anti-SLAPP motion we “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) The published opinion in the personal injury action, Gunnell v. Metrocolor Laboratories, Inc., supra, 92 Cal.App.4th 710, and Division Eight’s unpublished opinion in the legal malpractice action, Gunnell v. Silas (Jan. 27, 2006, B180744), inform our discussion as well.
Attorney Martina A. Silas represented Ross C. Gunnell, not a party to this action, in a case originally entitled Ross C. Gunnell v. Sony Pictures, Inc., Los Angeles Superior Court Case No. BC137271, filed in 1995 (the personal injury case or action). Additional plaintiffs, also not involved here, were subsequently added to the case. These plaintiffs sued their employer for injuries allegedly sustained from exposure to a hazardous chemical substance the employer required them to use to clean the film processing laboratories. (Gunnell v. Metrocolor Laboratories, Inc., supra, 92 Cal.App.4th at p. 714.) Their complaint included causes of action for intentional infliction of emotional distress, strict liability ultrahazardous activity, civil conspiracy, battery, and fraud. (Ibid.)
As noted above, the case was reported as Gunnell v. Metrocolor Laboratories, Inc. For clarity, we refer to it as the personal injury case or action.
Silas explained in a declaration that “Gunnell contended that Metrocolor had removed warning labels from chemical barrels of a cleaning solution he was using; and that Metrocolor had then falsely advised him that the chemical was a harmless cleaning soap; and that Gunnell became soaked with the chemical while working. Gunnell claimed that he later learned that the substance was not in fact cleaning soap, but that it was an allegedly toxic solvent, which allegedly caused him brain damage and other internal illnesses.” In numerous conversations between Gunnell and Silas, Gunnell stated repeatedly that he had not experienced any symptoms, illnesses or injuries during his employment with Metrocolor, that he had not had a company physical during his employment and never shared any of his medical records or reports with his employer, and that his first symptoms of any kind occurred in 1991, over a year after he left Metrocolor. These statements were consistent with Silas’s investigation of the case. She was aware of the exclusive remedy provision of the WCA as well as the exceptions to the Act, including that set forth in Labor Code section 3602, subdivision (b)(2). She was aware “that an employee could maintain an action against his employer ‘where the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation.’” Silas has declared that “[t]he express language of the statute provides that the employer must conceal from an employee the existence of the injury and its connection with employment. The case law interpreting the statute in effect during [the personal injury] case, and currently, held that the fraudulent concealment exception does not apply where... the employer first learned of the illness from the plaintiff. Hughes Aircraft Co. v. Superior Court (1996) 44 Cal.App.4th 1790, 1785–1798.” Based on her conversations with Gunnell, Silas did not believe that Gunnell’s case fell within the so-called “fraudulent concealment” exception of Labor Code section 3602, subdivision (b)(2) and pleaded that section only out of an abundance of caution.
Shortly before trial began, Silas learned of documents indicating that Gunnell had developed a rash on his hands while employed at Metrocolor and had sought medical treatment for that rash. He had written on some insurance forms that the rash had been caused by cleaning chemicals he had used at Metrocolor. Silas discussed the 1989 claim form with Gunnell. At first, he denied recollection of that medical treatment. Later, he stated he “remembered that after he began working at Metrocolor, he had experienced some chaffing or cracking of the skin on his hands which went away. He also told [Silas] that he had a vague recollection of going to a private doctor, but that he had no recollection of any conversation with the physician. He told [Silas] that was the only time that he sought treatment for the chaffing and/or cracking, and that it went away, and did not continue to bother him. He confirmed again that he did not recall having any injuries or illnesses while employed at Metrocolor; and that it was not until several years after he ceased working for Metrocolor that he noticed a deterioration in his health.”
Also before trial began, Silas determined that the case against two remaining manufacturer defendants, Eastman Kodak Company and Van Waters & Rogers (VWR) would probably not succeed. She discussed the issue with Gunnell, and they agreed that because the case against those entities was weak, if they were willing to discuss settlement, Silas would try to obtain settlements from them. She told Gunnell that the costs of the case were already about $100,000 and that any settlement funds due him would be applied to costs, as he was responsible for the costs regardless of the outcome of the case. Gunnell agreed. Silas obtained a $13,000 settlement with VWR. Gunnell came to her office on February 26, 1999 to sign the release before a notary public named Alexander Mack. Gunnell provided photo identification; Mack confirmed Gunnell’s identity; Gunnell signed the release; and Mack notarized the document. Silas also witnessed Gunnell sign the back of the VWR check, which she deposited in her trust account. After the check cleared, Silas applied the settlement funds to the outstanding cost balance, per the written fee agreement. Although the costs exceeded the amount of the settlement, Silas issued Gunnell a check for $2,500 from the settlement funds as a courtesy.
Eastman Kodak is not a party to this action. The record is silent as to whether there was any settlement with Eastman Kodak. In any event, that fact is immaterial to this appeal.
At trial in 1999, Gunnell was examined and cross-examined about the 1989 medical visit for his chapped hands. He “testified at length regarding all of his medical symptoms; the entire chronology of his employment; and to every representation that had been made to him regarding his work; and regarding the chemicals with which he was working. He never once mentioned any conversation with any supervisor or manager wherein he showed the supervisor or manager his hands; or mentioned his hands; and wherein the supervisor or manager made any representation to him regarding his hands; or the chemicals in connection with his hand condition.”
Only Gunnell’s case against Metrocolor was submitted to the jury, and only on the battery cause of action. (Gunnell v. Metrocolor Laboratoratories, Inc., supra, 92 Cal.App.4th at p. 715.) Silas argued to the jury “that removing warning labels from chemical barrels, and then lying about the contents, constituted a willful physical assault/battery because it caused an un-consented-to offensive contact causing injury. This argument was predicated on Labor Code section 3602, subdivision (b)(1), specifically, that Gunnell’s injuries were “proximately caused by a willful physical assault by the employer” and thus fell outside the “compensation bargain” that underlies the exclusive remedy provision of the WCA. The trial court allowed Gunnell’s claim for willful physical assault/battery to proceed to the jury with a special verdict question of whether Metrocolor had committed a willful physical assault on Gunnell by exposing him to chemicals, with a specific intent to injure him.
Ordinarily, the workers’ compensation system provides the exclusive remedy for work-related injuries such as Gunnell’s. (Lab. Code, § 3602, subd. (a).) In the complaint Silas filed on Gunnell’s behalf, however, he alleged that his employer committed a criminal battery in violation of Penal Code section 242 by misrepresenting the cleaning solvent he was using was a harmless soap when his employer knew it was a toxic organic solvent that would seriously damage Gunnell’s internal organs when he worked with it. Gunnell argued the battery occurred because Metrocolor specifically intended to injure him, and he had not consented to contact with the harmful chemicals that caused his injuries. In committing a battery on Gunnell, Metrocolor acted with oppression, malice, and fraud. Accordingly, he maintained, under Labor Code section 3602, subdivision (b)(1), Gunnell could bring an action at law because his injury was “proximately caused by a willful physical assault by the employer” and thus fell outside the “compensation bargain” that underlies the exclusive remedy provision of the WCA.
At the time of Gunnell’s trial, Silas declared: “the issue of whether intentionally tricking someone into using a toxin may constitute a willful physical assault was unsettled in California. There was, however, a case holding that battery may be proven by deceit, without the use of a violent physical force... Several other state and federal jurisdictions, including the Ninth Circuit Court of Appeals, had allowed the willful physical assault exception to apply to toxic exposure cases.”
The jury returned a special verdict finding that Metrocolor had intentionally committed a “willful physical assault” on Gunnell under Labor Code section 3602, subdivision (b)(1) and awarded him $6,650,000 in damages. (Gunnell v. Metrocolor Laboratories, Inc., supra, 92 Cal.App.4th at p. 715.) Metrocolor and Time Warner successfully moved for judgment notwithstanding the verdict (JNOV) on the ground that the Workers’ Compensation Act (WCA) provided the exclusive remedy for Gunnell’s injuries. (Gunnell v. Metrocolor Laboratories, Inc., supra, 92 Cal.App.4th at p. 715.)
Silas filed an appeal on Gunnell’s behalf. In a case of first impression, Division Three of this district affirmed the JNOV based on workers’ compensation exclusivity in a published decision and determined “the facts do not show that Metrocolor committed a criminal battery against the plaintiffs or that plaintiffs can claim the ‘willful physical assault’ exception to the exclusive remedy provision in [Labor Code] section 3602, subdivision (b)(1).” (Gunnell v. Metrocolor Laboratories, Inc., supra, 92 Cal.App.4th at p. 728.)
In December 2002, Gunnell, acting in propria persona, sued Silas for legal malpractice in an action entitled Ross Gunnell v. Martina Silas, et al., Los Angeles Superior Court Case No. BC287340 (the legal malpractice case). Gunnell alleged that Silas should have argued that the statutory exception for “fraudulent concealment” removed Gunnell’s injuries from workers’ compensation exclusivity and let him pursue a civil action in superior court. (Lab. Code, § 3602, subd. (b)(2).) Gunnell further alleged that Silas had committed these additional transgressions: abandonment of his cause of action under Labor Code section 3602, subdivision (b)(2), without advising him before the trial; improper failure to inform Gunnell of settlements with underlying manufacturer defendants; and misappropriation of settlement funds.
In October 2003, Arden and his law firm substituted in as Gunnell’s counsel in the legal malpractice case. Silas attended Gunnell’s deposition sessions on February 13, 2004 and April 8, 2004, in which Arden represented Gunnell. Both Arden and Gunnell were shown copies of the notarized settlement agreement and the settlement check with Gunnell’s endorsement on it. Despite seeing these documents, Arden continued to assert that Silas was liable to Gunnell for misappropriation of settlement funds. On September 10, 2004, Arden filed a memorandum of points and authorities in opposition to Silas’s motion for summary judgment in which he opposed a finding that Silas did not misappropriate settlement funds.
In September 2004, the trial court granted Silas’s motion for summary judgment, in relevant part as follows:
“2. Labor Code section 3602 (b)(2) requires that Plaintiff establish, (1) that his employer had actual knowledge that Plaintiff suffered from an initial injury of which Plaintiff was unaware, (2) the employer fraudulently concealed from Plaintiff both the existence of the initial injury and its connection with the employment, and (3) as a result of the concealment, Plaintiff’s initial injury was aggravated. Hughes Aircraft Co. v. Superior Court (1996) 44 Cal.App.4th 1790. Plaintiff must establish that he would have prevailed in the underlying action to raise a triable issue of material fact on summary judgment in this matter.
“3. Plaintiff fails to establish that his employer had actual knowledge of the initial injury, i.e. chapped hands, as it was Plaintiff who reported his chapped hands to his employer. Plaintiff fails to submit any admissible evidence that Plaintiff has liver, brain, kidney, respiratory tract or central nervous system damage, and plaintiff’s expert found that no such damage exists. Plaintiff in his deposition states that his initial injury was his chapped hands, and he knew his chapped hands were caused by the cleaning solution he was using at work.
“4. Further, as to Plaintiff’s alleged brain damage, there is no evidence and no conceivable way that Plaintiff’s employer could have been apprised of this damage. Plaintiff has failed to submit any evidence of the employer’s actual knowledge as required by Labor Code section 3602 (b)(2) and thus, summary judgment is proper.
“5. There is no triable issue of material fact as to any other allegation of malpractice set forth in the complaint. Plaintiff endorsed the settlement check in front of a notary and turned the check over to Defendants. Plaintiff has not submitted any evidence to establish that (1) Defendants were not entitled to the settlement funds or, (2) that Defendants failed to obtain Plaintiff’s informed consent under California Rules of Professional Conduct 3-310 and 4-100. The settlement check was addressed to the plaintiff, put in his possession and then the plaintiff endorsed the check over to the defendant in the presence of a notary. This is the equivalent of the plaintiff receiving the settlement funds and writing the defendant a check himself. Plaintiff’s endorsement of the check also precludes him from disputing any agreement to settle with this particular defendant.
“6. Plaintiff’s claims of malpractice fail as a matter of law and summary judgment is granted to Defendants as to the entire complaint.
“7. Defendant’s motion for sanctions is denied.”
(Italics added.) Division Eight of this district affirmed the judgment in January 2006, Gunnell v. Silas (Jan. 27, 2006, B180744) [nonpub. opn.].
The court stated in footnote 2: “Appellant also sued respondents for misappropriation of settlement funds, but has not pursued that allegation on appeal.”
On January 15, 2008, Silas filed the instant action, which complaint was amended on January 31, 2008. Silas named as defendants Scott, Arden & Salter LLP, Randall G. Salter, and James Ellis Arden, among other defendants not involved here. She asserted two causes of action against all defendants: malicious prosecution and abuse of process.
On April 24, 2008, defendants Salter and Arden filed a special motion to strike first amended complaint [CCP § 425.16] (the Motion to Strike). On July 17, 2008, the trial court denied the Motion to Strike as to the malicious prosecution cause of action and granted the motion on the abuse of process claim.
As Arden points out in his opening brief, the firm of Scott, Arden & Salter LLP was dissolved in 2007. Silas dismissed the action as against Salter before the motion was heard. Arden represents that the only other defendant remaining in the case is attorney Peter Dion-Kindem, who has no connection to Arden or the defunct law firm, but who filed his own separate anti-SLAPP motion, the subject of a separate appeal. This division affirmed the trial court’s order denying Dion-Kindem’s motion to strike the malicious prosecution claim and denying his request for attorney’s fees on March 11, 2009 in a nonpublished opinion, Silas v. Dion-Kindem, B208655.
This timely appeal followed.
DISCUSSION
Under Code of Civil Procedure section 425.16, a party may move to dismiss “certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.” (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420–1421.) Section 425.16 provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)
Under the statute, the party moving to strike a cause of action has the initial burden to show that the cause of action arises from an act in furtherance of the moving party’s right of petition or free speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once the moving party meets that burden, the plaintiff must then demonstrate the probability that he will prevail on the claim. (Ibid.) To satisfy that latter burden, the plaintiff must “‘state [ ] and substantiate[ ] a legally sufficient claim.’ [Citation.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’ [Citation.]” (Jarrow, supra, 31 Cal.4th 728, 741, fn. omitted.)
“The entry of summary judgment for the defense on an underlying claim on grounds of insufficient evidence does not establish as a matter of law that the litigant necessarily can ‘state and substantiate’ [Citation] a subsequent malicious prosecution claim.” (Jarrow, supra, 31 Cal.4th at p. 742.)
“Review of an order granting or denying a motion to strike under section 425.16 is de novo.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).) “We consider ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ ([Code Civ. Proc.,] § 425.16, subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’” (Id. at p. 269, fn. 3, quoting HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
A. Protected Activity
As the trial court correctly found, Silas’s malicious prosecution claim arises from a protected activity. The anti-SLAPP protection for petitioning activities applies to the filing of lawsuits. (Soukup, supra, 39 Cal.4th at p. 291 [“The filing of a lawsuit is an aspect of the First Amendment right of petition. [Citation.] Accordingly, defendants have fulfilled the required threshold showing.”].) At paragraph 77 of the complaint, Silas alleges that the defendants, including Arden, “acted without probable cause in initiating, prosecuting and continuing to prosecute the action without probable cause, and continuing to prosecute it after discovering that they lacked probable cause.” Such petitioning activities fall within the parameters of the anti-SLAPP statute.
B. Probability of Prevailing
To prevail on her malicious prosecution claim, Silas must show that the legal malpractice action (1) was prosecuted by Arden, (2) was pursued to a legal termination in Silas’s favor, (3) was brought without probable cause, and (4) was prosecuted with malice. (Soukup, supra, 39 Cal.4th at p. 292; Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos).) At the outset, we note that the fact Arden did not draft the initial versions of the legal malpractice complaint and substituted in as counsel for Gunnell is of no moment for purposes of an anti-SLAPP motion to strike. “[C]ontinuing to prosecute a lawsuit discovered to lack probable cause” may also support a claim of malicious prosecution. (Zamos, supra, 32 Cal.4th at p. 973.) “Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset.” (Id. at p. 969.) “‘A person who had no part in the commencement of the action, but who participated in it at a later time, may be held liable for malicious prosecution.’ [Citation.])” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1398 (Sycamore).)
As this Court observed in our earlier consideration of Silas’s malicious prosecution cause of action as it related to defendant Dion-Kindem, the meaning of the term “prosecute” in this context is not seriously in dispute. In 1926, the California Supreme Court explained that “[t]he term ‘prosecution’ is sufficiently comprehensive to include every step in an action from its commencement to its final determination.” (Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18.) And, in Lujan v. Gordon (1977) 70 Cal.App.3d 260, another division of this court held that attorneys who neither initiated a lawsuit nor filed a substitution of counsel in the case may nonetheless be sued for malicious prosecution. The court concluded that “[t]here does not appear to be any good reason not to impose liability upon a person who inflicts harm by aiding or abetting a malicious prosecution which someone else has instituted.” (Id. at p. 264.)
Arden unquestionably took steps to move the legal malpractice action forward, for example, representing Gunnell at deposition sessions on February 13, 2004 and April 8, 2004, and filing an opposition on Gunnell’s behalf to Silas’s motion for summary judgment. We conclude Silas has made a prima facie showing that Arden “prosecuted” the case for purposes of the malicious prosecution claim.
Second, Silas alleged—and there is no dispute—that the legal malpractice action terminated in Silas’s favor.
Third, Silas alleged and presented a prima facie showing that Arden lacked probable cause in prosecuting the legal malpractice action. “The question of probable cause is ‘whether as an objective matter, the prior action was legally tenable or not.’ [Citation.] ‘A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’ [Citation.] ‘In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.’” (Soukup, supra, 39 Cal.4th at p. 292.) “The same standard will apply to the continuation as to the initiation of a suit.... applying it to the decision to continue to prosecute a case should be no more or less difficult than applying it to the decision to initiate a case.” (Zamos, supra, 32 Cal.4th at p. 970.)
Silas presented facts through declarations and exhibits that tend to demonstrate Arden lacked probable cause to prosecute the legal malpractice case. Notably, Silas has submitted portions of Gunnell’s deposition and trial testimony regarding the changing state of his knowledge of his injuries over the years. At his deposition in October 1997, Gunnell testified that he did not notice any rashes when he was employed, did not believe he ever reported any illness of any sort to anybody at his employer, did not recall seeking medical care from any health providers for anything he believed occurred to him during the time he worked for Metrocolor, and did not recall going to a doctor at any time during his employment. At his personal injury trial, Gunnell testified that not until he was shown a copy of a comprehensive medical claim form he had submitted did he “remember I did have... a problem with my hands while I was there. I had like a cracking. My hands cracked like all over, and they turned pink, and so I went to the doctor, and I just got a cream.” He did have a specific recollection of the doctor himself: “It was the doctor I remembered going to, but for some reason, I thought I went to him for my lips, and it turned out I went to him for my hands.”
Long after the trial and after the Supreme Court denied review in December 2001 of the Court of Appeal’s September 2001 opinion ruling against him, Gunnell was deposed again in 2004 in connection with his legal malpractice case. Arden represented Gunnell at the session in February 2004 when Gunnell testified that at the time he saw the doctor for his cracked and peeling hands, he believed the condition was caused by what he was working with, recalled the doctor’s name (Schwartz), recalled Dr. Schwartz telling him to ask what he was working with, recalled going back and asking and being told it was TSP, recalled telling [fellow worker] Dave Carrasco about “that incident with the chapping of [his] hands,” believed the doctor prescribed a cream, and imagined the chafing went away after he used the medication. Gunnell also testified that he never sought medical treatment from his employer and did not send his employer any medical records “or anything pertaining to the two occasions that [he] sought treatment for the chapped hands and chapped lips.” Arden represented Gunnell again at his deposition in April 2004, where Gunnell testified that he did not remember his conversation with Carrasco until 2003 and did not recall his conversation with Dr. Schwartz about his hands until 2003.
The lack of merit in the legal malpractice action, factually and legally, was well-explained in Division Eight’s nonpublished opinion affirming summary judgment for Silas, as follows:
“The fraudulent concealment exception applies when an employer conceals from an employee a work-related injury. Labor Code section 3602, subdivision (b)(2) states workers’ compensation exclusivity drops away ‘[w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment.... ‘An employer’s misrepresentations or concealment of workplace hazards, however, remain under the umbrella of workers’ compensation exclusivity. (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 469, 474-475 (Johns-Manville) [concealing hazard in the workplace, as opposed to concealing injury, covered by workers’ compensation exclusivity]; accord, Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 93 [trial court erred sustaining demurrer where employee alleged employer knew employee had suffered work-related skin reactions but concealed knowledge of link between reactions and chemicals].)
“Metrocolor lied about the hazards of the cleaning solution. Metrocolor did not, however, conceal from [Gunnell] any medical information or information about his injury. [Gunnell] himself attributed his skin problems to the cleaning solution. As Division 3 explained in rejecting fraudulent concealment in [Gunnell’s] lawsuit against Metrocolor, ‘Gunnell claims Metrocolor deceived and defrauded him by not revealing that Absorb was unsafe to use in the employment, assured Gunnell that Absorb was safe to use, did not provide adequate gloves, clothing, or other protective gear, did not provide training in using and handling of Absorb, removed warning labels from Absorb containers, and violated government safety regulations regarding use of Absorb and warnings to employees about its toxic chemical properties. Under Johns-Manville, an injury to an employee caused by an employer’s deceit and concealment of hazardous substances used in the employment, failure to train, and failure to assure a safe workplace environment remains within the course of employment. Johns-Manville thus confines Gunnell’s remedies to those provided by the [Workers’ Compensation Act].’ (Gunnell, supra, 92 Cal.App.4th at p. 722.) Because [Gunnell] plainly knew about, and sought medical treatment for, his injured hands, he cannot assert Metrocolor concealed his work-related injury from him.” (Gunnell v. Silas, B180744.) The court added that Gunnell presented no evidence that “Metrocolor actually knew of his internal injuries, let alone concealed them from him” (Ibid.) At the very least, Arden lacked probable cause to continue prosecuting the legal malpractice case on the factual basis of doctors’ visits Gunnell admitted he had not even recalled during the time Silas represented Gunnell.
If Gunnell did not remember the relevant events until after he was no longer represented by Silas, he could hardly seek to hold her liable for malpractice for not pursuing a litigation strategy based on such events.
In addition to her declaration, wherein she stated that she had discussed settlement strategy and offers with Gunnell, Silas submitted with her motion for summary judgment in the legal malpractice case copies of the settlement agreement with one defendant, Van Waters & Rogers, bearing Gunnell’s notarized signature, a declaration from the notary public stating he witnessed Gunnell signing the relevant pages of the document on February 26, 1999, and copies of negotiated checks from the settlement bearing Gunnell’s signature. Arden represented Gunnell in the legal malpractice case and argued in opposition to Silas’s summary judgment motion that the documents were inadmissible. He offered no evidence to show there was a genuine issue of material fact as to Gunnell’s claims that Silas had failed to advise him of settlement proposals and offers and misappropriated settlement funds. Arden argues that “[a]s soon as Silas presented those cancelled check copies with her motion, the misappropriation claim was dropped.” There is no evidence in the record that he ever communicated this fact to either Silas or the trial court. “Maintaining a case one knows, or should know, is untenable continues to harm the defendant as long as the case remains open, since the defendant must continue to prepare a defense to the case as long as the case appears to be moving forward.” (Sycamore, supra, 157 Cal.App.4th at p. 1410.)
A review of Arden’s own submissions serves to reinforce the adequacy of Silas’ showing that Arden lacked probable cause. (Soukup, supra, 39 Cal.4th at p. 294 [“As against this evidence tending to demonstrate lack of probable cause, defendants generally assert that probable cause existed to support their claims against Soukup without making a specific evidentiary showing as to each claim.”].) Arden did nothing here to counter Silas’s prima facie showing that he lacked probable cause to continue prosecuting the legal malpractice action: submitting what appears to be a nine-year-old article Silas wrote for a bar publication, a copy of the Limited Liability Partnership Notice of Change of Status he apparently filed in connection with the dissolution of his law firm, and two court of appeals opinions involving Gunnell—the 2001 personal injury action opinion and the September 2006 opinion affirming the trial court’s judgment ordering Gunnell to pay Silas legal fees she earned and costs she incurred while representing him in the personal injury action. We conclude Silas’s showing that Arden lacked probable cause to prosecute the legal malpractice case against her is sufficient to meet her burden on the anti-SLAPP motion to strike.
Turning to the fourth element, malice, we conclude that while Silas’s evidentiary showing was comparatively weaker than on the third element, she has met her burden on the motion. The inference of malice from the absence of probable cause to file (or prosecute) a lawsuit is not automatic. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 511, p. 761.) “The malice element of the malicious prosecution tort goes to the defendant’s subjective intent in initiating the prior action. [Citation.] For purposes of a malicious prosecution claim, [malice] ‘is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.’ [Citation.] ‘Suits with the hallmark of an improper purpose’ include, but are not necessarily limited to, ‘those in which: “‘... (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.’”’” (Sycamore, supra, 157 Cal.App.4th at p. 1407.) “[O]btaining summary judgment for the defense on the underlying claim does not necessarily establish the malice element of a subsequent malicious prosecution claim.” (Jarrow, supra, 31 Cal.4th at p. 743.)
Silas has established the probability she will prevail in proving Arden’s malice or ill will with the following evidence: Arden represented Gunnell at the depositions when Gunnell [and therefore Arden] was shown the various documents that established Gunnell’s knowledge of the settlement and receipt of a portion of the proceeds, contrary to the charges that Silas had concealed the settlement or misappropriated proceeds. Arden represented Gunnell as the latter substantially altered the account of his injuries which, even in the new form demonstrated that the “fraudulent concealment of injury” exception to the workers’ compensation scheme simply did not apply. Equally significant, Gunnell’s much belated recollection in 2003 of the facts surrounding his medical treatment and report to a Metrocolor supervisor, described for the first time at the 2004 depositions, made it clear that Silas did not know these facts during the time she represented Gunnell. Arden had to have known the 2004 account differed from the earlier story, if for no other reason than the personal injury action was the subject of a published opinion. Yet Arden persisted in the lawsuit.
Even if Arden could overcome this obstacle, Gunnell’s “new” recollection of his medical treatment and conversation with the Metrocolor supervisor plainly did nothing to make the fraudulent concealment theory any more tenable. The essence of the fraudulent concealment theory is that the employer aggravates the employee’s injury by concealing the very existence of the injury. Gunnell’s “new” facts—unknown to Silas when she represented Gunnell—establish that Gunnell knew before his employer that he had been injured. He arguably may have been deceived about the nature of the hazards of the workplace, but under Johns-Manville (decided over two decades earlier), workers’ compensation exclusivity still applied. In short, even crediting Gunnell’s newly recalled story, and even assuming there was some way that Silas could have known about it during the time she was his lawyer, we cannot ignore the obvious conclusion that those facts would not have impacted the outcome of the personal injury case because they did not support application of the fraudulent concealment exception.
Arden nowhere rebuts Silas’s assertions that he could not have conducted legal or factual research on Gunnell’s case. He does not, for example, describe any legal research he conducted or factual investigation he undertook before he substituted in or during the course of his representation of Gunnell. Arden does not explain why, under applicable law, he ever believed Gunnell’s case—under any theory—remained meritorious or how Silas could have litigated the personal injury case given the facts Gunnell had presented. Similarly, he fails to explain the legal basis for arguing it was malpractice for Silas not to pursue a clearly inapposite legal theory. Arden does not deny that he failed to contact the medical experts or other witnesses from the personal injury case. He never deposed Silas, the purported wrongdoer, in the legal malpractice case, and he failed to conduct any other discovery. Still, he persisted with the legal malpractice action.
These factors, together with those we relied on above in finding Arden lacked probable cause to continue the legal malpractice action, are further circumstantial evidence that Arden acted with indifference or an improper motive in prosecuting that case. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 [although insufficient by itself to establish malice, lack of probable cause is relevant factor bearing on issue of malice].) “Malice ‘may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause.’ (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1465–1466, 242 Cal.Rptr. 562.)” (Soukup, supra, 39 Cal.4th at p. 292.) The California Supreme Court has recognized that indifference in continuing to prosecute an action after an attorney has learned that the basis of the action lacks merit falls within the parameters of the malicious prosecution tort. (Zamos, supra, 32 Cal.4th at p. 969 [“Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset... As the Court of Appeal in this case observed, ‘It makes little sense to hold attorneys accountable for their knowledge when they file a lawsuit, but not for their knowledge the next day.’”].) Based on this record, a trier of fact could find “a degree of indifference from which one could also infer malice.” (Sycamore, supra, 157 Cal.App.4th at p. 1409.) Continuing to prosecute Gunnell’s case in these circumstances is, we believe, evidence of indifference or an improper purpose, to wit, malice.
In sum, because Silas established a probability of prevailing on the malicious prosecution claim, we affirm the trial court’s order denying Arden’s anti-SLAPP motion on the malicious prosecution cause of action.
Upon full consideration of Silas’s motion for sanctions, filed on June 18, 2009, we find the requested award unwarranted and deny the motion accordingly. We grant Silas’s Motion to Strike Appellant’s Reply Appendix, filed on June 18, 2009.
DISPOSITION
The trial court order denying Arden’s anti-SLAPP motion to strike the malicious prosecution cause of action, dated July 17, 2008, is affirmed. Respondent is to recover her costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.