Judge: H. Jay Ford, III, Case: 20SMCV00691, Date: 2024-05-28 Tentative Ruling

Case Number: 20SMCV00691    Hearing Date: May 28, 2024    Dept: O

  Case Name:  Vahmi, et al. v. Jarrell, et al.          

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendants William Jarrell, Aldrige Pite, LLP and Wilmington Savings Fund Society, FSB, as trustee for Stanwich Mortgage Loan Trust

RESP. PARTY:         Plaintiffs Kasra Vahmi

TENTATIVE RULING

            Defendants William Jarrell, Aldrige Pite, LLP and Wilmington Savings Fund Society, FS, as trustee for Stanwich Mortgage Loan Trust’s Motion for Summary Judgment is GRANTED.

I.  Request for Judicial Notice

            Defendants’ Request for Judicial Notice is GRANTED pursuant to Evidence Code §§451 and 452.

            Plaintiffs’ Request for Judicial Notice is GRANTED as to the records in UD1 and DENIED as to be the records in bankruptcy case 2:13-bk-26015.  The bankruptcy records of Jeong’s bankruptcy are not irrelevant or material to the Court’s ruling.

II.  Evidentiary Objections

            Plaintiffs’ Objections:  OVERRULE as to Nos. 1, 2 (objection to statement in MP&As, not evidence), 4 (same) and 5 (same) and SUSTAIN as to No. 3 (Jarrell Dec., ¶32.) 

            Defendants’ Objections:  SUSTAIN all objections to Cook Dec., Vahmi Dec. and Bagheri Dec. 

IV.  Defendants’ MSJ is GRANTED:  No triable issues of fact remain as to Plaintiffs’ sole cause of action for malicious prosecution because the undisputed evidence shows Plaintiffs failed to meet their burden to show Defendants maintained the first action for unlawful detainer, case no. 19SMUD00192, against them with malice.

            “To establish a cause of action for malicious prosecution, a plaintiff must prove that the prior action (1) had been commenced at the direction of the defendant and was pursued to a legal termination in the plaintiff's favor, (2) was brought without probable cause, and (3) was initiated with malice.”  (George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 799.)  A person who continues a civil proceeding that was properly begun, or takes an active part in continuing it, for an improper purpose after learning that there is no probable cause for the proceeding becomes liable for malicious prosecution as if he or she had initiated the proceeding.  (Zamos v. Stroud (2004) 32 Cal.4th 958, 973 (emphasis added); see also 5 Witkin, Summary of California Law (11th ed. 2020), Torts, §597.) 

            Plaintiffs allege Defendants did not name them in the first unlawful detainer action brought against Jeong, case no.19SMUD00192 (“UD1”).  (Complaint, ¶13.)  Plaintiffs allege Defendants obtained a default judgment and writ of possession as to Jeong.  (Complaint, ¶15.)  Thereafter, upon receiving the Sheriff’s eviction papers, Plaintiff Vahmi filed a Claim of Right to Possession in UD1 on September 6, 2019 and September 9, 2019.  (Complaint, ¶17.)  Plaintiff Bagheri filed a Claim of Right to Possession on September 23, 2019 and October 28, 2019.  (Complaint, ¶20.)  Defendants allegedly dismissed UD1 on March 13, 2020. 

            Plaintiffs allege that Defendants continued to prosecute UD1 after Plaintiffs filed their Claims of Right to Possession even though the UD1 action against them was meritless.  Plaintiffs allege Defendants could have and should have dismissed UD1 in its entirety but continued to litigate UD1 against them after Plaintiffs filed their claims of possession.  (Complaint, ¶¶24-25, 28, 31, 33-41.) 

            As such, Plaintiffs’ claim for malicious prosecution is not based on the initial filing of UD1.  Plaintiffs were not named in the initial filing in UD1 and malicious prosecution cannot be based on the failure to prosecute.  Plaintiffs’ malicious prosecution claim is therefore based on Defendants’ maintenance and failure to dismiss the entire action in UD1 (including vacating the judgment already entered against Jeong) after Plaintiffs intervened in UD1 post-judgment by filing their Claims of Right to Possession, i.e. from September 2019 to March 2020, a total of approximately seven months. 

            A.  Timeline of events

            The timeline of events in UD1 is based on judicially noticeable facts and are undisputed.  The only facts set forth below that are dispute are Defendants’ knowledge or ignorance of certain filings and proceedings and whether Defendants received notice of certain filings despite proofs of service that the documents were mailed. 

            Defendants establish that at the time UD1 was initiated, they believed Jeong to be the only occupant of the property and therefore initiated UD proceedings against an owner-occupied property post-foreclosure sale.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶¶5-7; Appendix of Exhibits, v. 2, Ostermann Dec. (“CMS Dec.”), ¶¶6-14.)  Defendants’ establish their ignorance of the presence of any tenants on the property from the time they initiated UD1 through disposition of UD1 by way of a default judgment against Jeong on July 29, 2019.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶9, Ex. 5.) 

            Vahmi filed a Claim of Right to Possession (“CRP”) on September 6, 2019.  (Defendants’ RJN, ¶3; Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶10, Ex. 6.)  Vahmi’s CRP was denied on September 18, 2019.   (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶14, Ex. 7.)  Defendants establish they never received any notice of Vahmi’s September 6, 2019 CRP and it was only after Vahmi’s September 6, 2019 CRP was denied on September 13, 2019 that Vahmi emailed counsel expressing his wish to purchase the property.  (Id. at ¶14, Ex. 7.)  Because Vahmi had not successfully intervened in the UD1 action at that point, there was no “prosecution” of Vahmi, nor could there have been any malice because Defendants' were entirely ignorant of Vahmi’s September 6, 2019 CRP.

            Thereafter, Plaintiff Bagheri filed a CRP on September 18, 2019, which was granted on September 23, 2019.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶14, Ex. 8.)  Defendants establish Bagheri never served Defendants with notice of the Court’s September 23, 2019 order granting Bagheri’s CRP, despite the Court’s order that Bagheri do so. The docket in UD1 does not contain any Proof of Service of any notice of the ruling, nor did Defendants receive any such notice.  (Id. at ¶¶17 and 18.) 

            Plaintiff Vahmi then attempted to resuscitate his September 6, 2019 CRP by filing a Motino for Reconsideration in UD1 of the September 18, 2019 order denying it.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶19, Ex. 10.)  Defendants deny ever having received the Motion for Reconsideration despite a POS being attached to the Motion indicating service on them.  Vahmi’s Motion for Reconsideration was set for hearing on October 16, 2019.  (Id.)

            Plaintiff Bagheri filed a Motion to Quash on September 30, 2019 which was set for hearing on October 7, 2019.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶21, Ex. 11.)  Defendants deny ever receiving Notice of this Motion to Quash despite a POS indicating service of the motion.  (Id. at ¶21.) 

            Defendants first received notice that Bagheri was actively litigating UD1 by way of a CRP on October 8, 2019, when an employee contacted the Court and was informed of Bagheri’s CRP.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶22.)  The day after, on October 9, 2019, Bagheri filed another Motion to Quash for hearing on October 21, 2019.  (Id. at ¶23, Ex. 12.)  Defendants admit that they received notice of that Motion.  (Id. at ¶23.) 

            After receiving Bagheri’s Motion to Quash, Defendants determined the Notice to Quit issued in UD1 was not proper as to Bagheri because she was a tenant entitled to a 90-day Notice to Quit.  Defendants thereafter executed a Request for Dismissal of Bagheri on October 16, 2019 and the dismissal was entered on October 22, 2019, 13 days after Bagheri filed and served her second MTQ.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶24, Ex. 13.) 

            After Defendants dismissed Bagheri from the action, Bagheri filed a new CRP on October 25, 2019, which was set for hearing on October 30, 2019.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶32.)  Defendants deny ever receiving the CRP.  (Id. at ¶32.) 

            Thereafter, the Court in UD1 continued Vahmi’s Motion for Reconsideration to October 30, 2019, the same day Bagher’s CRP was set to be heard.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶31, Ex. 16.)  Defendants claim they had no knowledge of the October 30, 2019 hearing and did not appear.

            On October 30, 2019, Defendants filed a second UD action (“UD2”) against Vahmi and Bagher.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶35, Ex. 20.)  That same day, at the October 30, 2019 hearing in UD1, the Court set aside the October 22, 2019 dismissal of Bagheri and granted Vahmi’s motion for reconsideration.  (Id. at ¶37, Ex. 21.)  Defendants claim they received no notice of these rulings before February 26, 2020.  (Id. at ¶38.) 

            Thereafter, Plaintiffs filed multiple Motions to Quash in UD1, which were taken off calendar and denied due to Plaintiffs’ nonappearance.  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶39, Ex. 22.)  Defendants maintain they were entirely unaware that UD1 had been reinstated as to both Bagheri and Vahmi until the Court in (UD2) sustained Plaintiffs’ demurrer thereto in part based on “another action pending” on February 26, 2020.  (Id. at ¶47, Ex. 27.)  Defendants had opposed the demurrer based on “another action pending” on their good faith belief that UD1 had been dismissed and was no longer pending.  (Id. at ¶46, Ex. 26.)  Defendants thereafter filed an ex parte application on March 11, 2020 to dismiss UD1 without prejudice, which the Court in UD1 granted.  (Id. at ¶48.) 

            B.  Based on the undisputed evidence, Defendants did not maintain UD1 against Plaintiffs with malice

            “The ‘malice’ element relates to the subjective intent or purpose with which the defendant acted in initiating the prior action.  The motive of the defendant must have been something other than that of the satisfaction in a civil action of some personal or financial purpose.  The plaintiff must plead and prove actual ill will or some improper ulterior motive.  Malice may range anywhere from open hostility to indifference.  Malice may also be inferred from the facts establishing lack of probable cause.  [¶]  Malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.  Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset.”  (Lee v. Kim (2019) 41 Cal.App.5^th 705, 727-728.) 

            Based on the judicially noticed file in UD1, UD1 was only pending against Bagheri from September 23, 2019 to October 22, 2019, then again from October 30, 2019 to March 13, 2020, approximately 5 ½ months.  Based on the judicially noticed file in UD1, UD1 was only pending against Vahmi from October 30, 2019 to March 13, 2020, approximately 4 ½ months.  The action was only pending against both Plaintiffs because they attempted to intervene in UD1, not because Defendants were actively attempting to bring them into the case or seek a judgment against them in UD1. 

            In fact, based on the judicially noticeable evidence, Defendants repeatedly attempted to terminate UD1 immediately upon learning that it had been reinstated, twice.  When Defendants learned that Bagheri had intervened in the case, they filed a dismissal approximately two weeks later.  Defendants filed an ex parte application to dismiss the case yet again on March 11, 2020, approximately 4 ½ months after the case was reinstated on October 30, 2019. 

            Defendants claim they did not realize the case had been reinstated until February 26, 2020, when the Court in the second action for unlawful detainer in which named Plaintiffs as defendants, case no. 19SMUD02217 (UD2) sustained Plaintiffs’ demurrer based on “another action pending.”  (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., ¶46.)  Shortly thereafter Defendants filed their ex parte application to dismiss the action two weeks after, once they determined how to proceed properly.  (Id. at ¶48.)

            Defendant argued in their March 11, 2020 ex parte application that they did not know the dismissal had been set aside as to Bagheri. (Defendants’ Appendix of Exhibits, v. 1, Jarrell Dec., Ex. 28.) Defendants argued in their February 7, 2020 opposition to Plaintiffs’ demurrer in UD2 that there was no other action pending, because UD1 had been dismissed.  (Id. at Ex. 26.)  Defendants have consistently maintained that they believed UD1 was no longer pending because (1) a judgment had been entered as to Jeong and (2) the action was dismissed as to Bagheri on October 22, 2019.  

            Based on the judicially noticeable evidence, Defendants did not continue to maintain UD1 once they learned that Plaintiffs had intervened in UD1. There is no evidence Defendants engaged in any “trickery” to enforce the judgment it had against Jeong. Indeed, that judgment expressly did not apply to “all occupants of the premises including tenants, subtenants if any, and named claimants if any (Code Civ, Proc., H 715.010, 1169, and 1174.3).”   Moreover, after Bagheri’s CRP was filed, there is no evidence Defendant took any steps to recover possession based on the judgment entered against Jeong in UD1.  To the contrary, Defendants promptly moved to dismiss each time Plaintiff successfully intervened in the action based on its  belief that it must pursue its unlawful detainer claim in a new action against Plaintiffs as named defendants in UD2.  Based on these facts, no reasonable jury could conclude that Defendants acted maliciously by failing to dismiss UD1 in its entirety. 

            In opposition, Plaintiffs fail to raise any triable issue of fact as to the malice element of their claim.  Plaintiffs argue Defendants only dismissed Bagheri on October 22, 2019, rather than dismissing the entire action, which they ultimately did on March 13, 2020, after the Court in UD2 abated that action against Plaintiffs unlawful detainer.  Plaintiffs fail to refute the judicially noticeable evidence that, as of October 22, 2019 and until October 30, 2019, Bagheri was the only other named defendant besides Jeong, against whom default judgment had already been entered.  Plaintiffs submit no direct or circumstantial evidence from which a trier of fact could infer or find that the “maintenance” of UD1 from October 30, 2019 through March 13, 2020 was due to Defendants’ ill will, spite, indifference or awareness of a complete lack of probable cause.  The undisputed evidence shows Defendants reasonably believed a judgment against Jeong, and a dismissal of Bagheri on October 22, 2019, was sufficient to fully dispose of UD1 so it could pursue UD2 directly against Plaintiffs as named defendants.

            Defendants’ Motion for Summary Judgment is GRANTED.