45 Cal.App.5th 442
Cal. Ct. App.2020Background
- Kevin and Tamara Kinsella were spouses; Tamara sued Kevin (the "Marvin Action") alleging he had promised before marriage to give her half of all assets he acquired after they met.
- Kevin moved for summary judgment in the Marvin Action; the trial court denied the motion, finding triable credibility issues; Tamara later voluntarily dismissed the Marvin Action.
- Kevin then sued Tamara for malicious prosecution, alleging the Marvin Action was brought without probable cause and with malice.
- Tamara filed an anti‑SLAPP motion arguing her prosecution of the Marvin Action was protected petitioning and that the denial of Kevin's summary judgment invoked the interim adverse judgment rule, establishing probable cause; she argued the fraud exception did not apply.
- Kevin opposed, arguing (1) he made a prima facie showing that Tamara’s declaration in the Marvin Action contained materially false statements she knew to be false (invoking the fraud exception to the interim adverse judgment rule), and (2) alternatively that equitable estoppel defeated Tamara’s claim.
- The trial court granted the anti‑SLAPP motion; the Court of Appeal reversed, holding Kevin presented a sufficient prima facie showing that the fraud exception could apply and remanded with directions to deny the anti‑SLAPP motion.
Issues
| Issue | Plaintiff's Argument (Kevin) | Defendant's Argument (Tamara) | Held |
|---|---|---|---|
| Whether Kevin rebutted the interim adverse judgment rule by showing the fraud exception (i.e., Tamara knowingly submitted false evidence opposing summary judgment) | Kevin: His verified complaint and declaration produced direct and circumstantial evidence that Tamara knew her declaration claiming a pre‑marriage promise was false, which is sufficient at the anti‑SLAPP prima facie stage. | Tamara: The standard for probable cause is lenient; Kevin failed to prove falsity or knowledge and relied on generalized descriptions rather than the actual declaration, so the interim adverse judgment rule stands. | Held: Kevin made a prima facie showing for the fraud exception; the anti‑SLAPP order was reversed and remanded to deny the motion. |
| Whether Kevin could rely on his testimony recounting Tamara’s prior declaration (rather than producing the original declaration) at the anti‑SLAPP stage | Kevin: His testimony describing Tamara's prior statements is admissible (no contemporaneous objection) and may be credited for prima facie purposes. | Tamara: Kevin's generalized recounting is insufficient; the court needs the actual documents and specific statements when alleging fraud or perjury. | Held: Court treated Kevin's testimony as admissible for anti‑SLAPP prong two because there were no trial‑court objections; his recounting sufficed to create a prima facie showing. |
| Whether Kevin could rely on an unlitigated affirmative defense (equitable estoppel) to show lack of probable cause | Kevin: Alternatively argued equitable estoppel could demonstrate Tamara lacked probable cause. | Tamara: Malicious prosecution plaintiffs cannot base lack of probable cause on an unlitigated affirmative defense; even if allowed, Kevin failed to establish it. | Held: Court did not resolve this alternative argument and expressed no view; decision rested on the fraud‑exception prima facie showing. |
| Whether appellate review should disturb trial court's award of postjudgment fees/costs | Kevin: Requests reversal of fee and cost award. | Tamara: (No developed argument in record.) | Held: Court declined to reach fee/costs issue because record and briefing did not support appellate review. |
Key Cases Cited
- Parrish v. Latham & Watkins, 3 Cal.5th 767 (2017) (discusses probable cause in malicious prosecution and explains interim adverse judgment rule and fraud exception)
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (2002) (denial of a defendant's summary judgment in prior action establishes probable cause under the interim adverse judgment rule)
- Carpenter v. Sibley, 153 Cal. 215 (1908) (historic recognition that judgments procured by fraud/perjury do not establish probable cause)
- Roberts v. Sentry Life Ins. Co., 76 Cal.App.4th 375 (1999) (frames exception: denial of summary judgment induced by materially false facts defeats the interim adverse judgment rule)
- Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co., 6 Cal.5th 931 (2019) (clarifies anti‑SLAPP two‑step procedure and what evidence the court may consider at prong two)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) (anti‑SLAPP prong two: plaintiff need only show minimal merit/probability of success)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (2006) (elements of malicious prosecution include lack of probable cause)
- Cuevas‑Martinez v. Sun Salt Sand, Inc., 35 Cal.App.5th 1109 (2019) (anti‑SLAPP review requires crediting plaintiff's evidence and drawing every legitimate favorable inference)