Judge Edward B. Moreton, Jr., Case Number: 23SMCV03282, Date: 2023-11-14 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 23SMCV03282, Date: 2023-11-14 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

PARTER MEDICAL PRODUCTS, INC.,

Plaintiff,

THE DOMINGUEZ FIRM, LLP, et al.,

Defendants.

Case No.: 23SMCV03282

Hearing Date: November 14, 2023

[TENTATIVE] ORDER RE:

DEFENDANTS’ SPECIAL MOTION TO

STRIKE COMPLAINT

This is a malicious prosecution action. Non-party Victoria Flores worked as a “packer” in Plaintiff Parter Medical Products, Inc.’s manufacturing department. Defendant Dominguez Firm LLP filed a lawsuit on behalf of Flores against Plaintiff.

Flores’ complaint included claims for violations of Gov’t Code §12940 et seq.: (1) discrimination, (2) retaliation, (3) failure to prevent discrimination/retaliation, (4) failure to provide reasonable accommodation, (5) failure to engage in a good faith interactive process, and (6) wrongful termination (the “Underlying Action”).

The Court granted summary judgment against Flores in the Underlying Action. The Court concluded that Flores’ claims for disability discrimination, retaliation, failure to prevent discrimination and retaliation, and wrongful termination all require there to be an actual termination of employment. But Plaintiff was not terminated because she signed a “Voluntary Resignation from Employment” to secure her workers’ compensation benefits. (Plaintiff’s Exhibit 7.) As to Flores’ claims for failure to provide reasonable accommodation and failure to engage in a good faith interactive process, the Court concluded Plaintiff was required to, but could not, show she could perform the essential duties of her job with reasonable accommodation. (Id.) She was restricted from lifting no more than 10 pounds, which was an essential function of her job as a packer. (Id.)

Plaintiff is now suing Flores’ attorneys for malicious prosecution. Plaintiff alleges Defendants Dominguez Firm LLP, Jace H. Kim, Carlos Andres Perez and Javier Ramirez (collectively, “Defendants”) knew Flores could not meet an essential element of her wrongful termination claims because she had resigned and was not terminated. Defendants knew she resigned because they drafted the resignation letter for her to sign, so that Flores could receive a lump sum payment from the workers compensation carrier. Plaintiff also alleges Defendants were aware of Plaintiff’s work restrictions because they represented Flores in her workers compensation claim and had access to her workers’ compensation physician reports.

This hearing is on Defendants’ special motion to strike pursuant to Code Civ. Proc. §425.16. Defendants argue that the complaint should be stricken in its entirety because (1) it is based upon the filing and pursuit of a prior employment action, which is a petitioning activity, and (2) Plaintiff cannot establish a probability of success on any of its causes of action as probable cause existed to file and maintain the employment action.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of the Court’s July 19, 2023 summary judgment ruling in the Underlying Action, Flores v. Parter Medical Products, Inc., 20 STCV37223. The Court grants the request pursuant to Cal. Evid. Code §§452(d) and 453.

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)

On the first prong, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Bonni, 11 Cal.5th at 1009.) “A defendant need only make a prima facie showing at this stage.” (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.)

To make a showing under the first prong, the moving defendant must demonstrate that the alleged conduct underlying each cause of action fits one of the categories spelled out in § 425.16 subdivision (e). (Nevallier v. Sletten (2002) 29 Cal.4th 82, 88.) There is no dispute here that the filing of the Underlying Action by Defendants constitutes petitioning activity falling under § 425.16(e)(1) and (2).

It is a “written or oral statement or writing made before a … judicial proceeding” (Code Civ. Proc. § 425.16(e)(1)), and a “written or oral statement or writing made in connection with an issue under consideration by a … judicial body” (Code Civ. Proc. § 425.16(e)(2)). (See also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 (“[B]y its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch … Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute.”).

In sum, Defendants have met the first prong as the filing of the Underlying Action constitutes petitioning activity.

Once a defendant demonstrates that protected conduct is at issue, the plaintiff must show 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. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. Only a cause of action that lacks ‘even minimal merit’ constitutes SLAPP.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)

The SLAPP statute’s second element--a “probability of prevailing”--means a “reasonable probability of prevailing, not prevailing by a preponderance of the evidence. For this reason, a court must apply a “summary-judgment-like” test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)

Here, there are three elements that must be met for a malicious prosecution action to succeed: “the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause, and (3) was initiated with malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.)

Plaintiff has met the first element as the underlying action was summarily adjudicated in Plaintiff’s favor. Defendants argue the first element is not met as to Defendants Perez or Ramirez because while their names appeared on the Complaint in the employment action, neither worked on nor provided any legal services for Flores in the action. (Perez Decl. ¶¶ 2-3, Ramirez Decl. ¶¶ 2-3.) The Court concludes that given the limited opportunity to conduct discovery, and the “minimal merit” standard, the appearance of Perez and Ramirez’s name on the Complaint is sufficient at this stage to show the prior action was commenced by or at their direction.

As to the second element, to decide whether probable cause exists, the court asks “whether as an objective matter, the prior action was legally tenable or not.” (Sheldon Appel Co. v. Albert & Oliver (1989) 47 Cal.3d 863, 868.) The existence or absence of probable cause is a question of law to be determined by the trial court from the facts. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165.) “[A] litigant will lack probable cause for his action either if he relies upon facts which 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.” (Id.)

Probable cause “must exist for every cause of action advanced in the underlying action.” (Soukup, 39 Cal.4th at 292.) Put differently, Plaintiff does not need to show that all the claims raised in the prior lawsuit were not supported by probable cause. It only needs to show that at least one of the claims was not supported by probable cause. (Crowley v. Katleman (1994) 8 Cal.4th 666, 677-678.)

Here, the causes of action for disability discrimination, retaliation, failure to prevent discrimination and retaliation and wrongful termination all require there to be an actual termination of employment. Defendants knew, however, that Plaintiff was not wrongfully terminated because she voluntarily resigned. (Plaintiff’s Ex. 1.) Flores, through Defendants, submitted a “Voluntary Resignation from Employment” in order to settle Flores’ workers compensation claim. (Id.) Yet Defendants filed the Underlying Action claiming Flores was terminated prior to resignation and that she was not allowed to return to work because Plaintiff would not provide reasonable accommodation. As the Court in the Underlying Action concluded, as a matter of logic, had Flores already been terminated, there would have been no need for her to voluntarily resign. (Plaintiff’s Exhibit 7.) On these facts, the Court concludes there is at least minimal merit to Plaintiff’s claim that Flores’ claims for discrimination, retaliation, failure to prevent discrimination and retaliation and wrongful termination were brought without probable cause. (Golden State Seafood Inc. v. Schloss (2022) 53 Cal.App.5th 21, 34-35 (no probable cause where attorney knew of information that clearly showed his client did not qualify for relief and the plaintiff was not liable under the statute on which the attorney brought the claim).)

Defendants rely on Camacho v. Target Corp. (2019) 24 Cal.App.5th 291, to argue there was a valid basis to bring the above claims even though Plaintiff had resigned and was not terminated. The court held in Camacho that the execution of a pre-printed compromise and release form in settling a workers’ compensation action only releases claims that are within the workers’ compensation system and does not otherwise operate to release other claims asserted in a separate civil action unless the parties agree to do so. (Id. at 293-294.) No reasonable reading of Camacho would suggest that Flores could voluntarily resign her employment as a condition of settling her workers’ compensation claim, and then file an action against Plaintiff claiming she was wrongfully terminated.

As to Flores’ claims for failure to provide reasonable accommodation and failure to engage in a good faith interactive process, both require a showing that Flores could perform the essential duties of her job with reasonable accommodation. Prior to her resignation, Flores, through Defendants, provided a “Return to Work” voucher which advised she had a permanent restriction prohibiting her from lifting over 10 pounds. (Plaintiff’s Ex. 5.) As the Court in the Underlying Action stated in its summary judgment ruling, “Defendant had no means of accommodating Plaintiff’s work restriction without eliminating an essential job function of a packer or inspector of lifting at least 10 pounds[.]” (Plaintiff’s Ex. 7.) Flores admitted that her job required being able to lift over 10 pounds. (Plaintiff’s Exs. 3, 5.) Further, Flores stated in her deposition she “could not identify a position which could have been offered to her to accommodate her 10 pound lifting work restriction, which was required in a position of packer, and she did not know what position Defendant could have offered her considering that work restriction.” (Plaintiff’s Ex. 7.) On these facts, the Court concludes there is at least minimal merit to Plaintiff’s claim that there was no probable cause to support bringing the claims for failure to provide reasonable accommodation and failure to engage in a good faith interactive process. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 18-19 (plaintiff had established a prima facie case of malicious prosecution by demonstrating the attorney received records showing the claims were meritless but continued to prosecute the case).)

Next, the Court considers whether there was malice. Malice “goes to the defendant’s subjective intent in initiating the prior action.” (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1156.) It is not limited to actual hostility or ill will toward the plaintiff.¿ (Id.) “Suits with the hallmark of an improper purpose are those in which … the person initiating them does not believe that his claim may be held valid [or] the proceedings[.]” (Id. at 1157.) Because parties rarely admit an improper motive, “malice is usually proven by circumstantial evidence and inferences drawn from the evidence.” (HMS Capital Inc. v. Lawyers Title Co. (2004) 118 Cal.App. 4th 204, 218.) The element of malice may be “inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.)

A lack of probable cause in the underlying action, by itself, is insufficient to show malice.¿(HMS Capital, 118 Cal.App.4th at 218.) “A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence.”¿ (Id.) Additional proof of malice can consist of evidence a party¿knowingly¿brings an action without probable cause. (See¿Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 634¿(“While after¿Sheldon Appel¿a lack of probable cause, standing alone, does not support an inference of malice, malice may still be inferred when a party¿knowingly¿brings an action without probable cause.”), disapproved on other grounds in¿Zamos v. Stroud (2004) 32 Cal.4th 958, 973.)

Here, there is at least minimal merit to Plaintiff’s claim that Defendants acted with malice. Defendants commenced the Underlying Action and continued to prosecute it, knowing that Plaintiff resigned and was not terminated; indeed, Defendants themselves drafted the resignation letter. Defendant also continued to prosecute the Underlying Action, knowing that Plaintiff was restricted from performing an essential function of her job.

Plaintiff seeks sanctions of $24,250, arguing that Defendants’ anti-SLAPP motion is frivolous. The Court disagrees. Although the Court is denying the anti-SLAPP motion, it cannot conclude the motion was totally and completely without merit or was brought for the sole purpose of harassing an opposing party.