41 Cal.App.5th 705
Cal. Ct. App.2019Background
- Attorney Jong Yun Kim sued on behalf of a wheelchair-using plaintiff (Williams) under the ADA and Unruh Act, alleging lack of accessible parking at a printing business operated by Grip Smart Printing, Inc. (Grip Smart).
- Grip Smart was a tenant; the landlord (Yongo/Yong O. Hwang) owned and controlled the building and parking lot under the operative leases; counsel for Lee/Grip Smart provided Kim a copy of the lease on November 4, 2016.
- Kim amended to drop individual defendant Lee and pursued Grip Smart and the landlord; the federal district court granted summary judgment for Grip Smart, concluding Williams’s injury was not traceable to Grip Smart (lack of Article III standing); Yongo later settled for $3,000.
- Lee sued Kim for malicious prosecution; the trial court granted Kim’s anti-SLAPP special motion to strike Lee’s complaint and awarded fees; Grip Smart filed a separate malicious prosecution suit and the trial court denied Kim’s anti-SLAPP motion.
- On consolidated appeal, the Court of Appeal affirmed both orders: it affirmed striking Lee’s claim (Lee forfeited showing lack of probable cause and malice) and affirmed denial of Kim’s motion as to Grip Smart (Grip Smart showed favorable termination on the merits, lack of probable cause after receipt of the lease, and malice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prior action terminated favorably on the merits | Lee: voluntary dismissal/refiling against corporate defendant reflected a favorable termination; Grip Smart: federal summary judgment was a merits win | Kim: Lee’s dismissal was a technical correction; Grip Smart’s dismissal was jurisdictional (Article III standing), not on the merits | Court: Lee’s dismissal could be viewed as favorable (plaintiff’s evidence accepted), but Grip Smart’s summary judgment was a favorable termination because the standing ruling required assessing causation and thus reflected on the merits |
| Whether Kim had probable cause to continue prosecution after receipt of the lease (Nov. 2016) | Plaintiffs: Kim lacked probable cause after counsel produced the lease showing landlord control | Kim: initial claims were tenable; attorneys can rely on client info and the lease allocation between landlord/tenant does not necessarily bar tenant liability (citing Botosan) | Court: Probable cause existed at filing but not after Kim received the lease; Kohler (9th Cir.) distinguishes Botosan—lease terms can show a tenant lacks control, so continuing prosecution lacked probable cause |
| Whether Kim acted with malice in continuing the suit and seeking settlements | Plaintiffs: continued prosecution and settlement demands after notice of the lease show improper motive and malice | Kim: pursued claims to obtain relief for his client; no evidence of improper motive | Court: Malice may be inferred from continuing a baseless action after notice; Grip Smart made a prima facie showing of malice (including alleged post-judgment demand for money); Lee forfeited malice/probable-cause arguments on appeal |
| Whether the trial court misapplied burden-shifting on anti-SLAPP second prong | Kim: court improperly shifted burden to him to prove probable cause | Grip Smart: plaintiff bears prima facie burden to show probability of prevailing | Court: No reversible error; overall order shows the court recognized plaintiff’s prima facie burden and any isolated language did not constitute prejudicial burden-shifting |
Key Cases Cited
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (Cal. 2003) (malicious-prosecution claims arise from protected petitioning activity for anti-SLAPP purposes)
- Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) (anti-SLAPP second-prong is a summary-judgment-like inquiry)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. 2006) (standards for reviewing anti-SLAPP orders and elements of malicious prosecution)
- Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (Cal. 1989) (probable cause is an objective tenability inquiry; reasonable attorneys may disagree)
- Zamos v. Stroud, 32 Cal.4th 958 (Cal. 2004) (continuing to prosecute after losing probable cause can give rise to malice)
- Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260 (9th Cir. 2015) (lease allocation can show tenant lacks control of parking; tenants not automatically liable for distant common-area barriers)
- Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000) (ADA obligations can run to landlords and tenants; allocation by lease does not eliminate landlord obligations)
- Daniels v. Robbins, 182 Cal.App.4th 204 (Cal. Ct. App. 2010) (malice may be inferred where a party continues to prosecute an action known to be baseless)