Judge: Alison Mackenzie, Case: 22STCV09937, Date: 2024-01-04 Tentative Ruling
Case Number: 22STCV09937 Hearing Date: March 29, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Defendants’ Motion for Summary Judgment,
or in the Alternative, Summary Adjudication.
BACKGROUND
SCARLET SHEPPARD (“Plaintiff”) filed a Complaint
alleging that GEN Z STUDIOS, LLC and JOSEPH LACKEY (“Defendants”) wrongfully
instituted a frivolous lawsuit against her, a former employee, for the purpose of
retaliating against Plaintiff for seeking to exercise her rights to sue Defendants
for discrimination. Plaintiff alleges that in February 2021 she sent Defendants
a demand letter stating her intent to sue Defendants for employment
discrimination. (Compl., ¶ 11.) Shortly after receiving the demand letter, Defendants
filed a lawsuit against Plaintiff alleging claims for defamation, intentional
interference with contractual relations, intentional interference with
prospective economic relations, unfair competition, breach of contract, and breach
of the duty of loyalty. (Id., ¶¶ 12, 18.) Defendants’ case against Plaintiff
is 21STCV06878 (“Case 68678”). In December 2021, Plaintiff sent Defendants a
draft demurrer and anti-SLAPP motion with regards to Defendants’ complaint in
Case 6878. (Id., ¶¶ 19-20.) But before Plaintiff filed the motions,
Defendants dismissed the lawsuit in January 2022. (Id., ¶¶ 24-25.)
Based on these allegations, Plaintiff’s causes of
action are: 1) Wrongful Use of Civil Proceedings/Malicious Prosecution; and 2)
Abuse of Process.
For hearing, Defendants bring a motion for summary
judgment against Plaintiff, or for summary adjudication as to both causes of
action and the punitive damages remedy. Plaintiff opposes the motion.
LEGAL STANDARD
In moving for summary judgment or summary
adjudication, a “defendant . . . has met his or her burden of showing that a
cause of action has no merit if the party has shown that one or more elements
of the cause of action, even if not separately pleaded, cannot be established,
or that there is a complete defense to the cause of action.” Code Civ. Proc. §
437c(p)(2).
Once a moving party has satisfied the initial burden
of proof, the burden “shifts to the opposing party to show, by responsive
separate statement and admissible evidence, that triable issues of fact exist.”
Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411,
1418, disapproved on other grounds by Black
Sky Cap., LLC v. Cobb (2019) 7 Cal. 5th 156, 165.
JUDICIAL NOTICE
Plaintiff requests that the Court take judicial notice
of 16 court records. The request is
granted in their entirety. Giles v. Horn (2002) 100 Cal. App. 4th
206, 228 (failure to object to requests for judicial notice constitutes a
waiver of the objection).
EVIDENTIARY OBJECTIONS
The Court sustains all of Plaintiff’s evidentiary
objections to the declarations of Eric Syverson and Joseph Lackey.
ANALYSIS
Malicious Prosecution
The elements of a claim for malicious prosecution are:
Van Audenhove v. Perry
(2017) 11 Cal. App. 5th 915, 918–19.
Defendants contend that Plaintiff cannot establish the
probable cause element of her malicious prosecution claim. Defendants claim
that Plaintiff purportedly admitted in deposition testimony in a separate case
that she had a contract with Defendant Gen Z and that she published behind-the
scenes videos in breach of that contract. (See Mot. at 1; Sep. Stmt. No.
1.) Defendants conclude that they reasonably believed they had a reasonable basis
to sue Plaintiff for breach of contract in Case 6878. (Mot. at 6-7.)
This argument fails, for the following reasons.
First, the evidence Defendants rely upon is a portion
of Plaintiff’s deposition in a separate case and a contract purportedly
attached to the deposition as an exhibit. The Court sustained the evidentiary
objections to the Syverson declaration purporting to include the deposition
testimony and contract. The deposition transcript is incompetent evidence,
including because there is no accompanying proof that Plaintiff had an opportunity
to finish testifying about Defendant’s encouraging employees to post videos,
notwithstanding the contract condition of getting preauthorization in writing. Notably,
the contract is not even attached to the Syverson declaration, and in any
event, it is inadmissible based on the Court’s evidentiary rulings. “As a
general rule, inadmissible evidence can neither support nor defeat a summary
judgment.” Ibarbia v. Regents of Univ. of Cal. (1987) 191 Cal.App.3d
1318, 1330. Therefore, the Court concludes that Defendants failed to meet their
initial burden of proof with respect to the probable cause element they have
moved on in their motion.
Second, even if Defendants relied on competent
evidence and the burden shifted to Plaintiff, Plaintiff has established that a
triable issue of material fact exists with regards to the probable cause
element. Contract conditions can be excused or waived. Careau & Co. v.
Sec. Pac. Bus. Credit (1990) 222 Cal. App. 3d 1371, 1391. “[A] contracting
party may waive conditions placed in a contract solely for that party's
benefit.” Sabo v. Fasano (1984) 154 Cal. App. 3d 502, 505. Plaintiff’s proof of Defendants’ inviting
employees’ video postings without written approval, tends to show that
Defendants knowingly lacked probable cause to sue Plaintiff for contract breach,
because the breach would have been excusable. (Plaintiff’s Opposition to
Defendants’ Sep. Stmt.) Such proof supports triable issues of material fact as
to the malicious prosecution claim.
Abuse of Process
Defendants’ motion mentions the abuse of process claim
in the notice but otherwise does not address abuse of process or applicable law
in the motion. The motion only addresses probable cause for the previous case
having the claim for breach of contract.
The elements of a claim for abuse of process are:
Rusheen v. Cohen
(2006) 37 Cal. 4th 1048, 1057.
To the extent Defendants content that they are moving
on this claim, Plaintiff evidences that Defendants commenced the default
process against Plaintiff in Case 6878 in order to violate the parties’ agreement
to stay of the action and to retaliate for protected conduct. See, e.g., Opp.,
7:12-16. Generally, such stipulations are binding upon parties and judges. Mileikowsky
v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279.
Therefore, the Court determines that triable issues of
material fact are supported by evidence of using the default process for an
ulterior purpose, and denies the motion as to the claim of abuse of process.
Punitive Damages
Defendants’ memorandum of points and authorities does
not specifically address the issue of punitive damages.
“[I]f the action is one in tort, punitive damages may
be recovered upon a proper showing of malice, fraud or oppression even though
the conduct constituting the tort also involves a breach of contract.” Fletcher
v. Western National Life Ins. Co. (1970) 10 Cal. App. 3d 376, 400. “[A]n
award in a malicious prosecution suit may include punitive damages.” Lesser
v. Huntington Harbor Corp. (1985) 173 Cal. App. 3d 922, 929. As jury
properly found abuse of process and awarded punitive damages. See Weisenburg
v. Molina (1976) 58 Cal. App. 3d 478, 490.
Here, Plaintiff’s proof, including reasonable
inferences, sufficiently supports the claims of malicious prosecution and abuse
of process, including malice and oppression involved in Defendants’ retaliation
against protected conduct of employees. See, e.g., Plaintiff’s Decl., ¶ 5 (“He
only claimed that I breached the contract after being made aware by my lawyer
that I intended to sue him and Gen Z for gender discrimination and wrongful
termination.”)
Therefore, the motion is denied as to the remedy of
punitive damages.
CONCLUSION
The motion is denied. The alternative motion is denied.