Judge Holly J. Fujie, Case Number: 22STCV33977, Date: 2024-11-20 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving and opposition papers. No reply has been filed. Any reply was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

This is an action for malicious prosecution initiated by Plaintiff against Defendant on October 20, 2022. The action stems from a fraud and legal/professional malpractice case filed by Defendant against Plaintiff on December 12, 2019 under LASC Case No. 19STCV44832 (“Malpractice Action”). (Defendant’s Separate Statement in Support of Motion for Summary Judgment [“UMF”] 1-3.)

On May 6, 2024, Defendant filed the present Motion for Summary Judgment (the “Motion”). Plaintiff filed an opposition to the Motion on November 7, 2024, which the Court deems as timely filed. (11/14/2024 Order.) No reply has been filed.

Plaintiff objects to the entirety of the declaration of Defendant (“Shimada Decl.”) on the ground that Defendant has represented that she can only speak and read Japanese, as supported by a letter from Defendant’s counsel and a Notice of Request for Interpreter. (Declaration of Brian S. Detrick [“Detrick Decl.”], ¶¶ 34-36, Exhs. G and H.) Plaintiff has submitted no authority for the contention that such an attestation is required in the case of a writing as opposed to testimony. The Court finds that no attestation under oath by an interpreter pursuant to Evid. Code § 751 is required in the case of the Shimada Decl. On this and the other grounds asserted in Plaintiff’s objections to the Shimada Declaration, those objections are OVERRULED.

Plaintiff also objects to portions of the declaration of Defendant’s counsel, Ashleigh W. McCurchin (“McCurchin Decl.”). Plaintiff’s objections to the McCurchin Decl. is OVERRULED as to No. 8, and SUSTAINED as to No. 11 on the ground of hearsay.

Regarding Defendant’s request for judicial notice of documents pertaining to the case of Shimada v. Detrick, et al., Case No. 19STCV44832 in the Los Angeles Superior Court (Exhs. i through iii), the Court takes judicial notice of the records’ existence, but not of the truth of assertions within. (Evid. Code, § 452(c), (d); Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) The request is GRANTED as to Exhs. iv and v, although the request is unnecessary because these documents are matters filed in this case.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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, subd. (p)(2); see Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th at p. 1520.)

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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion “shall not rely upon the 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 the cause of action or a defense thereto.” (Ibid.; see Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

To establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate that the prior action: (1) was commenced by or 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. (Robbins v. Blecher (1997) 52 Cal. App. 4th 886, 887–88, citing Eells v. Rosenblum (1995) 36 Cal.App.4th 1848.)

Defendant moves for summary judgment on the ground that there was no substantive termination of the Malpractice Action on its merits. Defendant contends that because the Malpractice Action was not terminated in any manner that reflected on Plaintiff’s innocence of the alleged misconduct, Plaintiff’s cause of action for malicious prosecution cannot be supported. Thus, the sole issue for determination in this Motion is whether Defendant’s voluntary dismissal of the Malpractice Action against Plaintiff constituted a favorable termination as to Plaintiff on the merits for purposes of malicious prosecution.

“To determine ‘whether there was a favorable termination,’ we ‘look at the judgment as a whole in the prior action ....’ [Citation.] ‘It is not essential to maintenance of an action for malicious prosecution that the prior proceeding was favorably terminated following trial on the merits.’ [Citation.] Rather, ‘[i]n order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit.’” (Alston v. Dawe (2020) 52 Cal. App. 5th 706, 721–22.) “A voluntary dismissal is presumed to be a favorable termination on the merits unless proved otherwise to a jury because the natural assumption is that one does not simply abandon a meritorious action.” (Id., citing Olivares v. Pineda (2019) 40 Cal.App.5th 343, 354.)

“A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. [Citations.] ‘It is not enough, however, merely to show that the proceeding was dismissed.’ [Citation.] The reasons for the dismissal of the action must be examined to determine whether the termination reflected on the merits.” (Eells v. Rosenblum, 36 Cal.App.4th at pp. 1854–1855; Camarena v. Sequoia Ins. Co. (1987) 190 Cal.App.3d 1089, 1099–1100.) A voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim. (Eells v. Rosenblum, supra, 36 Cal.App.4th at pp. 1855–1856; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 882; Sierra Club v. Superior Court (1985) 168 Cal.App.3d 1138, 1144; Stanley v. Superior Court (1982) 130 Cal.App.3d 460, 465.)

To support of its Motion, Defendant submits a letter dated September 21, 2020 by Stephen R. Rykoff (the “Rykoff Letter”), who was representing Plaintiff in the Malpractice Action, addressed to Michael R. Rhames, counsel for Defendant in the Malpractice Action. (UMF 7.) The Rykoff Letter notified Defendant of Plaintiff’s intent to file a demurrer to the complaint in the Malpractice Action and outlined two grounds on the basis of which Plaintiff intended to file the demurrer, namely the running of the statute of limitations and the mediation privilege. (UMF 8-9.)

Specifically, the Rykoff Letter advised Defendant that “[t]he rule of mediation confidentiality effectively shields an attorney’s actions during mediation, including advising the client even if the advice is incompetent or even deceptive. (Wimsett v. Superior Court (2007) 152 Cal.App.4^th 137, 152, Cassel v. Superior Court (2011) 51 Cal.4^th 113.) (Shimada Decl., Exh. “A,” p. 1 (emphasis added.).) The Rykoff Letter further stated: “Mr. Nakahara [Defendant’s attorney in the Malpractice Action] discovered the alleged fraud no later than July 11, 2o16. The statute of limitations based on discovery for both fraud and legal malpractice commenced no later than July 11, 2016. The statute of limitations for both of these causes of action had run prior to the date that the Complaint was filed on December 12, 2019.” (Shimada Decl., Exh. “A,” p. 2.)

The Rykoff letter specifically included a “MALICIOUS PROSECUTION WARNING,” and demanded that the complaint be dismissed with prejudice. (UMF 10-12.) Defendant declares that “on the advice of counsel,” Defendant filed a Request for Dismissal with prejudice of the complaint in the Malpractice Action which was entered on October 23, 2020. (UMF 13; RJN Exh. ii.)

The Court concludes that Defendant has established that there is no triable fact of fact as to the sole issue on the Motion, which is that the voluntary dismissal of the Malpractice Claim was based on technical grounds, i.e. the mediation privilege and the statute of limitations, and it does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim.

Defendant has thus met the initial burden of demonstrating that she is entitled to judgment. Plaintiff has not met his burden to raise a triable issue of material fact.

Accordingly, the Motion is GRANTED. Defendant has ten days to serve a proposed form of Judgment. Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court