Judge: Gregory Keosian, Case: 21STCV08512, Date: 2024-01-16 Tentative Ruling

Case Number: 21STCV08512    Hearing Date: January 16, 2024    Dept: 61

Defendant Nehemia Kong’s Motion for Summary Judgment is GRANTED.

Defendants to provide notice.

I.                SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)  

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant Nehemia Kong (Defendant) moves for summary judgment against the claims alleged by Plaintiffs Fermax Inc., Iris A. Lopez, and Leonardo M. Lopez (Defendants) for malicious prosecution, wrongful use of civil proceedings, unfair competition, and injunctive relief. Defendant argues that the claim for injunctive relief is not an independent cause of action, and that the claim brought under Business & Professions Code § 17200 (California’s Unfair Competition Law or UCL) is barred by the litigation privilege of Civil Code § 47. (Motion at pp. 2–4.) Defendant argues that the first and second causes of action, both sounding in malicious prosecution, fail for lack of proof of Defendant’s malice or lack of probable cause in the underlying action. (Motion at pp. 4–11.)

Defendant’s arguments as to the third and fourth causes of action under the UCL and for injunctive relief are persuasive. “Injunctive relief is a remedy, not a cause of action.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.) Thus the fourth cause of action for injunctive relief is merely a request for a particular type of remedy, derivative of and dependent on Plaintiffs’ other claims. Nor can the UCL claim, founded on allegations of filing meretricious ADA lawsuits, proceed against the litigation privilege of Civil Code § 47: “Filing civil litigation is communicative conduct protected by the litigation privilege.” (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1027.) And the litigation privilege, where applicable, bars suits brought under the UCL. (See People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 962.)[1]

This leaves Plaintiffs’ first and second causes of action for wrongful use of civil proceedings and malicious prosecution, which are essentially the same claim for malicious prosecution. “A plaintiff must plead and prove three elements to establish the tort of malicious prosecution: a lawsuit “(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.” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872–73.)

The existence of probable cause “is a question of law decided by the court.”(Maleti v. Wickers (2022) 82 Cal.App.5th 181, 218.)

[T]he probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. The court determines if a claim is tenable by inquiring whether any reasonable attorney would have thought the claim tenable. Thus, as the high court later explained, probable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [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.

(Maleti, supra, 82 Cal.App.5^th at p. 218, internal citations and quotation marks omitted.) As another court has stated, “probable cause is established by showing that the claim is legally sufficient and can be substantiated by competent evidence.” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1019, internal quotation marks and alterations omitted.)

The present case arises from an underlying lawsuit filed against Plaintiffs in federal court, Kong v. Lopez. (Murray Decl. Exh. 1.) The Complaint in that case alleged violations of the Americans with Disabilities Act (ADA) and the Unruh Civil Rights Act (UCRA). After a trial, the jury made three findings: (1) that the restaurant “present[ed] an architectural barrier by failing to offer a van-accessible parking space on February 9, 2018,” but also that Defendant Kong did not “personally encounter the lack of a van-accessible parking space” on that date, and did not “have personal knowledge of the lack of the van-accessible parking space” and was not “deterred from visiting or patronizing the Restaurant” on that date. (Potter Decl. Exh. 2.) Thus the verdict was against Kong based on the lack of a personal encounter with the barrier and for lack of personal knowledge of the barrier resulting in deterrence.

Kong here, now the Defendant, argues that his claims were supported by probable cause, since he testified that he entered the parking lot and saw the absence of a suitable space, evidenced by a photograph he took on the date in question. Defendant argues that he did not have to prove that he was denied access to the property, but only that he encountered a barrier thereon. (Motion at p. 6.) Further, Defendant argues that his status as a “tester,” i.e. someone actively looking for ADA violations with the intention of filing suit against offending businesses, does not deprive him of standing to bring claims. (Motion at pp. 6–9.)

Defendant’s argument is persuasive. Plaintiff’s testimony that he visited the parking lot at issue, and was deterred from visiting the premises by the lack of van-accessible parking, would have established a legally sufficient ADA claim if believed by the trier of fact. Although Plaintiffs advance the adverse jury finding as evidence of the absence of probable cause, the adverse finding on its own is insufficient to support the absence of probable cause:

[L]itigants and attorneys who bring a legally tenable action are not subject to liability for malicious prosecution simply because a trier of fact disbelieves their version of conflicting evidence and makes findings adverse to them. . . . [A]  litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortiously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious.

(Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1050.)

Plaintiffs argue that Defendant’s testimony is contradicted by responses to requests for admission in this case, in which Defendant admitted that he was not denied admittance to the facility and did not attempt to patronize the facility on February 8, 2018. (Murray Decl. Exh. 3.) The difficulty with this argument is that the underlying litigation did not address attempted access on February 8, 2018 — the verdict was addressed to the following day, February 9. (Potter Decl. Exh. 2.) Indeed, the same admissions that Plaintiffs invoke hereinclude a denial that Plaintiff never attempted to patronize the facility after February 8, 2018, which is in line with the allegations in the underlying action. (Murray Decl. Exh. 3.) There are thus no triable issues as to whether Defendant’s claims in the underlying litigation were legally sufficient and supported by competent evidence, and therefore no triable issues as to the existence of probable cause.

The same facts demonstrate the absence of triable issues on the question of malice.

The ‘malice’ element ... relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494, 78 Cal.Rptr.2d 142; Albertson v. Raboff (1956) 46 Cal.2d 375, 383, 295 P.2d 405 [“The malice required in an action for malicious prosecution is not limited to actual hostility or ill will toward plaintiff but exists when the proceedings are instituted primarily for an improper purpose.”].) Malice “may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause.

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.)

The sole basis for the finding of malice that Plaintiffs advance here are the adverse jury determination and the off-topic discovery from this action. (Opposition at pp. 15–16.) “Merely because the prior action lacked legal tenability, as measured objectively, without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor's subjective malicious state of mind.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743.)

The motion is therefore GRANTED.