Filed 10/2/14 Whitehead v. Young CA2/6

                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


WILLIAM WHITEHEAD,                                                             2d Civil No. B251147
                                                                              (Super. Ct. No. 56-2013-
     Plaintiff and Respondent,                                                00434703-CU-PO-VTA)
                                                                                 (Ventura County)
v.

MARK YOUNG et al.,

     Defendants and Appellants.




                   Mark Young and Donahoe & Young, LLP appeal an order denying their
special motion to strike a malicious prosecution action filed against them by William
Whitehead. (Code Civ. Proc. § 425.16.)1 Whitehead sued Young and his law firm for
initiating and maintaining two lawsuits against him on behalf of their clients Paul and
Debbie Winchester for damage to their real property. Whitehead asserts the
Winchesters' claims were terminated in his favor by voluntary dismissals and that
Young had no probable cause to initiate and maintain the actions.
                   We conclude that Whitehead met his burden to present facts that,
if believed by a trier of fact, demonstrate a reasonable probability he could prevail


1
    All statutory references are to the Code of Civil Procedure.
on his malicious prosecution claim and that the trial court did not err by denying his
anti-SLAPP motion.
                     FACTUAL AND PROCEDURAL HISTORY
              In May 2002, the Winchesters owned a residence in Santa Paula. In July
2009, they listed the property for sale for $1,195,000.
              In November 2009, Whitehead purchased an adjoining property and
asked the Winchesters for permission to trim some pepper trees on their property to
improve his view. The Winchesters agreed provided the work was done by an arborist
at Whitehead's expense. The Winchesters claim Whitehead did far more than simply
trim the trees, reducing seven of them to stumps.
              The Winchesters consulted an arborist and were told the value of the
trees that were cut down was $78,500. An appraiser opined the damage done to the
pepper trees reduced the value of the property by $75,000.
              But before any of the pepper trees were pruned, the Winchesters reduced
the listing price of their property to $999,900. It was sold for $1 million in April 2010,
after the Winchesters claim Whitehead reduced the value of their property by
damaging the trees. The buyer reported that the condition of the pepper trees played
no part in his decision to purchase the Winchester property. He said the condition of
the trees was not even discussed.
              The Winchesters' Complaint for Damage to Real Property
              In June 2010, after the Winchesters sold the property, Young filed a
complaint for damages against Whitehead on behalf of the Winchesters to recover the
claimed reduction in the value of their property and for the value of the trees. After
completing some discovery, the Winchesters offered to settle for increasingly smaller
sums, eventually agreeing to dismiss the action if Whitehead would waive costs.
Whitehead refused to participate in any settlement on any terms. On April 7, 2011, the
Winchesters dismissed their action "without prejudice."




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                    Whitehead's First Malicious Prosecution Action
               On June 2010, Whitehead sued the Winchesters for malicious
prosecution. He alleged they did not have probable cause to bring the suit because
they did not own the property at the time and because they were not damaged since
they sold the property for the value they put on it before anything had been done to the
trees. Young filed an answer to Whitehead's complaint and included a cross-complaint
that reasserted all the claims made in the 2010 complaint that was dismissed by the
Winchesters.
               Whitehead's malicious prosecution action was short-lived. He
dismissed it "without prejudice" only four months later. Even so, Young continued to
prosecute the cross-complaint on behalf of the Winchesters for another year. In
October 2012 however, the Winchesters filed for bankruptcy protection and dismissed
their cross-complaint against Whitehead.
                   Whitehead's Second Malicious Prosecution Action
               In April 2013, Whitehead sued Young and his law firm alleging they
acted without probable cause in initiating and maintaining claims against him that
Young knew were meritless. Whitehead contends Young knew the Winchesters did
not own the property at the time he filed the lawsuits on their behalf and knew the
Winchesters were not damaged because the law limited their recovery to the lesser of
either the reduction in the value of the property or the cost of repairs. Since the
property sold for slightly more than what they asked for it, Whitehead claimed the
Winchesters suffered no damage and Young's action presented no reasonable
probability of a recovery.
                                The Anti-SLAPP Motion
               On June 11, 2013, Young filed a special motion to strike under section
425.16 claiming that the Winchesters' voluntary dismissals of their complaint and
cross-complaint were not favorable terminations in favor of Whitehead and that there
was probable cause to initiate and maintain the suits.



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                                   Trial Court's Ruling
              The trial court found the property "sold for the adjusted listing price of
$999,000 with the condition of the trees not being a factor in the mind of the buyer,
nor something [that] was even discussed as part of the [sale] negotiations. . . . [¶] As
a consequence, the action by [the] Winchester[s] against Whitehead, filed after the sale
of the property was concluded, had little chance of success, a fact [that] should have
been known and appreciated by the lawyer defendants in this case." The trial court
concluded, "Because of this, Whitehead has a likelihood of success in this case, which
is sufficient to warrant denial of the motion."
                                       DISCUSSION
                                    Anti-Slapp Statute
              A "cause of action for malicious prosecution is recognized as being
susceptible to an anti-SLAPP motion." (Siam v. Kizilbash (2005) 130 Cal.App.4th
1563, 1570.) "An appellate court reviews an order denying an anti-SLAPP motion
under the de novo standard of review." (Gerbosi v. Gaims, Weil, West & Epstein
(2011) 193 Cal.App.4th 435, 444.)
              An anti-SLAPP motion is a two-step process. First, the party seeking to
strike a cause of action must make a prima facie showing that it is directed at an act "in
furtherance of the constitutional right of petition or free speech in connection with a
public issue." (Coretronic Corp. v. Cozen O'Connor ( 2011) 192 Cal.App.4th 1381,
1388.) Whitehead concedes that the claims asserted by the Winchesters qualify as a
protected activity.
              If the first step is satisfied, then the focus shifts to the second step; viz.,
determining whether the party opposing the special motion to strike has demonstrated
a probability of prevailing on the claim. (Oasis West Realty v. Goldman (2010) 51
Cal.4th 811, 820.) To meet the second anti-SLAPP prong, Whitehead must show only
a reasonable probability of prevailing.
              The court applies a "summary-judgment-like" test by accepting as true
the evidence favorable to Young and evaluating Whitehead's evidence only to


                                              4
determine whether Whitehead has defeated Young's cause of action as a matter of law.
(Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 702.)
                           Elements of Malicious Prosecution
              To prevail on his cause of action for malicious prosecution, Whitehead
must show that Young initiated proceedings against him and prove that there was (1) a
termination of the proceedings in his favor; (2) a want of probable cause; and
(3) malice on the part of Young and the firm. (Centers v. Dollar Markets (1950) 99
Cal.App.2d 534, 540.)
                           Showing on Favorable Termination
              "The theory underlying the requirement of favorable termination is that it
tends to indicate the innocence of the accused, and coupled with the other elements of
lack of probable cause and malice, establishes the tort [of malicious prosecution]."
(Jaffe v. Stone (1941) 18 Cal.2d 146, 150; Babb v. Superior Court (1971) 3 Cal.3d
841, 845.) A voluntary dismissal, even one without prejudice, may be a favorable
termination which will support an action for malicious prosecution. (MacDonald v.
Joslyn (1969) 275 Cal.App.2d 282, 289.)
              In this instance, an examination of the circumstances surrounding the
claims made by Young for the Winchesters plainly demonstrates that the Winchesters
voluntarily dismissed their complaint and cross-complaint because they had no chance
of recovering anything from Whitehead. The dismissals were favorable terminations
in favor of Whitehead.
                    Showing on Lack of Probable Cause and Malice
              An action is deemed to have been pursued without probable cause if it
was not legally tenable when viewed in an objective manner as of the time the action
was initiated or while it was being prosecuted. (Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 878.) The test the court is to apply is whether "any reasonable
attorney would have thought the claim tenable . . . ." (Id., at p. 886.)
              We agree with the conclusion of the trial court that the claims Young
initiated and maintained against Whitehead had little chance of being successfully


                                             5
prosecuted and that no reasonable attorney would have believed the claim was tenable
because the Winchesters did not own the property when the complaint was filed and
received slightly more than what they said it was worth before Whitehead's arborists
touched the pepper trees.
              Construing the allegations of Whitehead's complaint in the light most
favorable to him, it is reasonably probable that a trier of fact will determine there was
no probable cause to support the causes of action alleged on the Winchesters' behalf in
the initial complaint filed in 2010. It is also reasonably probable that a trier of fact
could determine that Young lacked probable cause to resurrect and continue to
prosecute the untenable Winchester claims in the cross-complaint filed in 2011.
              We also reject Young's claim that Whitehead did not make a sufficient
showing that Young and the firm acted with malice in initiating and maintaining two
actions against him. If the cause of action is for malicious prosecution, proof of
malice does not require a showing of anger or vindictiveness. (Jackson v. Beckham
(1963) 217 Cal.App.2d 264, 272-273.) Malice "may be inferred from all the
circumstances in the case [or] from want of probable cause." (Ibid.) Based upon this
record a jury could find Young and his firm were instrumental in setting Whitehead's
complaint in motion and causing the prosecution of Whitehead to proceed. (Centers v.
Dollar Markets, supra, 99 Cal.App.2d at p. 544.) Further, the tort of malicious
prosecution also includes the act of "continuing to prosecute a lawsuit discovered to
lack probable cause." (Zamos v. Stroud (2004) 32 Cal.4th 958, 973.)
              We do not intend to suggest that Whitehead will necessarily succeed
in his malicious prosecution action, only that he has met its burden to show a
probability of prevailing on the merits, sufficient to survive the anti-SLAPP motions.
"An anti-SLAPP motion must be denied '"if the plaintiff presents evidence establishing
a prima facie case which, if believed by the trier of fact, will result in a judgment for
the plaintiff. . . . ."' [Citation.] Only a minimal showing of merit is required.
[Citation.]" (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.)



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                                   DISPOSITION
              The order denying the special motion to dismiss is affirmed. Respondent
shall recover his costs.
              NOT TO BE PUBLISHED.




                                        BURKE, J.*


We concur:



              GILBERT, P. J.



              PERREN, J.




*
 (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)

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                              Henry J. Walsh, Judge

                        Superior Court County of Ventura
                       ______________________________


              Robert M. Ostrove for Plaintiff and Respondent.
              Klinedinst PC and Gregor A. Hensrude for Defendants and
Appellants.
