Cheong Yu Yee v. Don Cheung
220 Cal. App. 4th 184
| Cal. Ct. App. | 2013Background
- Yee filed a malicious prosecution action against Lin Wah, its members, and two attorneys after Lin Wah won fraud and conversion claims against Yee in 2009.
- The Lin Wah action was prosecuted by Jensen and Wong-Avery; Yee prevailed in that underlying action.
- Yee filed the malicious prosecution complaint on April 28, 2011, including others as defendants.
- Jensen demurred arguing the action was time-barred under CCP section 340.6, the one-year limit for actions against attorneys.
- Wong-Avery and the non-attorney defendants moved to strike under anti-SLAPP; the trial court granted the strikes and sustained Jensen’s demurrer.
- Yee appeals challenging both the demurrer ruling and the anti-SLAPP dismissals; the court affirmatively resolves all challenged rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §340.6's one-year limit applies to malicious prosecution against an attorney. | Yee contends §340.6 does not restrict malpractice-like claims against attorneys. | Jensen contends §340.6 governs actions against attorneys and is applicable here. | Yes; §340.6 applies and the claim against Jensen is time-barred. |
| Whether the anti-SLAPP motions against non-attorney defendants were properly granted. | Yee argues probability of prevailing on merits against non-attorney defendants, should avoid striking. | Non-attorney defendants show the action arises from protected activity and lacks probability of prevailing. | Anti-SLAPP motions granted; Yee failed to show probability of prevailing. |
| Whether the demurrer to Jensen’s dismissal was properly sustained without leave to amend. | Yee asserts possible amendment could state a viable claim. | Demurrer timely and properly sustained; amendment would be futile given §340.6 time-bar. | Sustaining the demurrer without leave to amend was proper; incorporated dismissal affirmed. |
Key Cases Cited
- Vafi v. McCloskey, 193 Cal.App.4th 874 (Cal. Ct. App. 2011) (one-year §340.6 applies to attorney actions for wrongful acts in performing professional services)
- Stavropoulos v. Superior Court, 141 Cal.App.4th 190 (Cal. Ct. App. 2006) (general (two-year) statute of limitations applies to malicious prosecution unless a more specific provision governs)
- Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (Cal. 1988) (probable cause standard for malicious prosecution; tenable legal theory and facts considered)
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (Cal. 2003) (malicious prosecution elements and litigation privilege considerations)
- Roberts v. Sentry Life Insurance, 76 Cal.App.4th 375 (Cal. Ct. App. 1999) (denial of summary judgment typically precludes frivolousness in malicious prosecution)
- Silas v. Arden, 213 Cal.App.4th 75 (Cal. Ct. App. 2013) (discussed as contrary to §340.6 retroactivity concerns; court favored plain-language reading of §340.6)