                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 14 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GREENSPRINGS BAPTIST CHRISTIAN                   No. 11-16586
FELLOWSHIP TRUST,
                                                 D.C. No. 3:09-cv-01054-SC
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

JAMES P. CILLEY; MARK A.
SCHMUCK; TIMMERMAN, CILLEY &
KOHLMANN LLP, a California limited
liability partnership,

              Defendants - Appellants.



                    Appeal from the United States District Court
                      for the Northern District of California
                   Samuel Conti, Senior District Judge, Presiding

                      Argued and Submitted February 14, 2013
                             San Francisco, California

Before: SCHROEDER, NOONAN, and MURGUIA, Circuit Judges.

       In this diversity action for malicious prosecution, James P. Cilley, Mark A.

Schmuck and their law firm, Timmerman, Cilley & Kohlmann (collectively the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Lawyers) appeal the ruling of the district court holding that Greensprings Baptist

Christian Fellowship Trust (Greensprings) had made a prima facie showing of

malice, so that it could proceed to trial.

      We affirm.

      The history of this litigation is recounted in two judicial orders:

      On August 18, 2008, Chief Magistrate Judge James Larson examined the

complaint filed by the Lawyers on behalf of their clients, Robert Miller and

Barbara Miller, individually, and as parents of Molly Miller and Anne Miller.

Chief Magistrate Judge Larson concluded:


             As Elsie Turchen was dying she apparently wanted to do
      something for her greatgranddaughters, Molly and Anne. Molly was
      her granddaughter Penny’s child, who had been given up for adoption.
      Anne was the child of Molly’s adoptive parents. Elsie said in her letter
      that she had been too busy to do much for the girls. She wrote a letter
      to the girls’ parents, Robert and Barbara. Would the gift of a house be
      all right with them? She had one in mind, and enclosed a photo. Two
      and a half weeks later, Elsie died.

             What ensued was a complicated legal tangle. Penny, Molly’s
      birth mother, contested Elsie’s will and sued in state court. The state
      lawsuit was settled.

             Molly and Anne’s parents did not join in the lawsuit or make a
      claim against Elsie’s estate. Greensprings was willing at first to make
      a donation to charities of their choice. Over several years, checks were
      written and re-written, sent back, replaced, and finally returned to the



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Estate. Molly and Anne’s parents ultimately received nothing from
either Greensprings or Elsie’s estate. They sued in this Court.

      Plaintiffs claim two kinds of damages: forbearance to file a
claim against Elsie’s estate, and their liability for a pledge to Seabury
Hall of $200,000. They argue that they gave up their opportunity to
receive something from the Estate, in exchange for Greensprings’
promise to donate to charities on their behalf. They argue that they
promised a donation to Seabury Hall based on Greensprings’ promise
to them.

       This Court concludes that none of this amounts to a cause of
action. When Molly was adopted, her legal ties to Elsie were severed.
Even if the will, which left her nothing, was invalidated, the law of
intestate succession would also have given her nothing. Anne and her
parents had no legal connection to Elsie. Even if Elsie’s proposal in
the letter amounted to a promise of a gift, the gift was never
completed. The promise was not enforceable. There was no valid
claim on that basis available to Plaintiffs against Elsie’s estate. So the
Plaintiffs’ forbearance to file a claim against the Estate did not amount
to consideration for Greensprings’ promise to donate on their behalf.
Their forbearance was worthless, since they had no viable claim
against Elsie’s estate. Their second claim, for their liability for the
pledge to Seabury Hall, was not based on any reasonable reliance on a
promise by Greensprings. The promise, if there was one, was to
donate to charities, including Seabury Hall, but not to Plaintiffs.
Plaintiffs never had possession or a promise of possession of any
money.

       Accordingly, Defendants’ motions to strike and to dismiss
pursuant to FRCP 12(b)(6) are granted, Plaintiffs’ First Amended
Complaint is dismissed. The motion for failure to join an
indispensable party pursuant to FRCP 12(b)(7) is denied without
prejudice. Plaintiffs shall take nothing on their complaint. Parties to
bear their own costs. The Clerk shall close the file.




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      Three years later, the attorneys were still at it. Reviewing what had been

asserted, Judge Samuel Conti ruled on May 26, 2011 summed up the situation:

      If there were any doubts as to whether the Millers' causes of action
      were lacking in probable cause, Magistrate Judge Larson's order
      dismissing the initial complaint removed them. This order stated that
      the Millers must demonstrate that Anne and Molly were entitled to the
      $500,000 from Turchen, Turchen's estate, or the estate of Turchen's
      deceased son, Ward Anderson. Cilley believed that this order raised "a
      hurdle which we cannot overcome." Apr. 24, 2008 Letter at 3
      (emphasis by Judge Conti). Cilley wrote that the challenges raised by
      Magistrate Judge Larson's order "cannot be overstated because it
      forms at least a part of the basis for most of our causes of action
      against the defendants in the First Amended Complaint." Id. Yet
      despite these considerations, the FAC was filed and ultimately
      dismissed with prejudice for failing to clear this hurdle. Because "an
      attorney may be held liable for continuing to prosecute a lawsuit
      discovered to lack probable cause," Zamos, 32 Cal. 4th at 960, this
      evidence is sufficient to satisfy Greensprings' burden on the issue of
      malice.

              In addition, the FAC included new allegations that
      Greensprings was part of a "conspiracy" to defraud Turchen, and that
      Greensprings agreed to make a $500,000 donation to charities
      identified by the Millers to avoid "increased scrutiny." See Miller
      FAC. Given that no such conspiracy is discussed in the numerous
      litigation documents submitted to the Court, the similarity between
      these allegations and allegations made in a superseded Anderson
      complaint, and Attorney Defendants' failure to submit documents
      tending to prove the existence of such a conspiracy, a reasonable fact
      finder could conclude they were lifted from the Anderson complaint
      and unsupported by probable cause. As such, this evidence is
      sufficient to show Attorney Defendants knew these allegations were
      not supported by probable cause when they made them.




                                         4
             Based on the above, Greensprings has put forward evidence
      supporting its allegation that Attorney Defendants brought claims
      against Greensprings that were unsupported by probable cause and
      legally untenable in light of the facts that were known by Attorney
      Defendants. This evidence is far from conclusive as to the ultimate
      issue of Attorney Defendants' liability for malicious prosecution,
      which is not yet before the Court. It is possible that a reasonable fact-
      finder could find Attorney Defendants were merely representing the
      Millers with the required zeal and without malice. However,
      Greensprings has conclusively cleared anti- SLAPP's "minimal merit"
      hurdle with this evidence. As such, the Court DENIES Attorney
      Defendants' Motion. Appellant’s ER 25-26.


      Greensprings need show only the probability of success to secure a trial. City

of Cotati v. Cashman, 52 P.3d 695, 700 (Cal. 2002). As the findings in the district

court show, such probability exists. The district court therefore properly concluded

that there was sufficient evidence to show, “Attorney defendants knew [their]

allegations were not supported by probable cause when they made them.” See

Zamos v. Stroud, 87 P.3d 802, 806 (Cal. 2004).

      AFFIRMED.

      Appellee’s motion for sanctions is DENIED.




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