Cole v. Patricia a. Meyer & Associates, APC
12 Cal. Daily Op. Serv. 6394
Cal. Ct. App.2012Background
- Cole sued attorneys of record for malicious prosecution and defamation stemming from Peregrine litigation; Bains v. Moores involved fraud claims against Cole; court already denied summary judgment on certain claims; Meyer & Associates and Boucher firm and Ottilie were asserted as defendants; anti-SLAPP motions were filed by multiple defendants; trial court partially granted/denied anti-SLAPP motions; appellate court reverses in part and remands for fee determinations.
- Peregrine Systems engaged in improper revenue recognition and related fraud; Latham & Watkins investigated; the company restated earnings and later filed bankruptcy; Cole was a founder/director with allegations of involvement in Peregrine’s management, while other defendants were not directly involved in day-to-day operations.
- Bains fraud allegations against Cole were examined for probable cause; plaintiffs argued Cole’s conduct and stock trades implied fraud; defendants argued lack of direct evidence; the court analyzes probable cause and malice with focus on whether the underlying fraud theories were tenable.
- The Boucher defendants and Ottilie were identified as counsel of record throughout Bains and may have lent their names to filings; court assesses whether association alone can expose counsel to liability for malicious prosecution; the defamation claim regarding publication on the Meyer & Associates website is examined under privilege and anti-SLAPP standards.
- The single publication rule governs internet publication for defamation; Cole seeks appellate review of fee awards related to anti-SLAPP motions; discovery issues and the role of cocounsel are evaluated in determining liability for malicious prosecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for Bains fraud claims against Cole | Cole: lack of probable cause; inferences unsupported | Meyer: challenged probable cause; relied on investigation | Cole showed probable cause lacking; favorable termination exists; malice shown against all defendants |
| Liability of Boucher defendants and Ottilie as cocounsel | Cole: associated as counsel of record; liable for malicious prosecution | Boucher/Ottilie: limited trial role; no active participation | Liable; association to prosecute case supports liability; not shielded by passive participation |
| Group published information doctrine applicability | Meyer: doctrine supports imputing liability from day-to-day involvement | Meyer: presumption unclear and not proven applicable at pleading stage | Not applicable beyond pleading stage; insufficient evidence of day-to-day involvement |
| Defamation claim and online republication protection | Cole: republication on firm website is actionable defamation | Meyer: anti-SLAPP threshold and privileges protect publications | Anti-SLAPP not satisfied; defamation claim viable against Meyer & Associates; publication privilege not demonstrated |
Key Cases Cited
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 733 (Cal. 2003) (two-step anti-SLAPP analysis; threshold protected activity; probability of prevailing)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. 2006) (probability of prevailing; minimal merit standard; evidentiary consideration)
- Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (Cal. 1989) (reasonable belief in merit; frivolousness standard for merit uuring)
- Bains v. Moores, 172 Cal.App.4th 445 (Cal. Ct. App. 2009) (probable cause analysis; fraud theories; appellate discussion of scienter and inferences)
- In re GlenFed, Inc. Securities Litigation, 60 F.3d 591 (9th Cir. 1995) (group information doctrine; pleading-stage presumption considerations)
- Kamen v. Lindly, 94 Cal.App.4th 197 (Cal. Ct. App. 2001) (outside directors not per se liable for false statements; group publishing discussion)
- Sycamore Ridge Apartments LLC v. Naumann, 157 Cal.App.4th 1385 (Cal. Ct. App. 2007) (premature association as cocounsel; liability for frivolous claims upon association)
- Daniels v. Robbins, 182 Cal.App.4th 204 (Cal. Ct. App. 2010) (malice and lack of probable cause; discovery-related evidence impact)