40 Cal.App.5th 970
Cal. Ct. App.2019Background
- Kaplan (attorney) sued Litinsky on behalf of client Vadim Harutyunov for fraud, alleging a 2004 Commission Agreement obligating Litinsky to pay commissions for referrals. The agreement bore signatures and a fax header dated June 28, 2004.
- Litinsky denied signing the agreement, denied knowing Harutyunov, and said her gallery did not have a fax in 2004; she produced expert and third-party evidence suggesting the agreement was fabricated or signatures copied.
- Harutyunov and a purchaser (Petrosyan) provided declarations, deposition testimony, and invoices (some showing the same fax number) supporting the agreement; a trial court denied Litinsky’s motion to quash jurisdiction.
- Before a rescheduled trial, Kaplan sought continuances for her client’s illness; after a continuance denial, the client dismissed the underlying action. Litinsky then sued Kaplan for malicious prosecution and intentional infliction of emotional distress (IIED).
- Kaplan moved to strike under the anti‑SLAPP statute; the trial court struck both claims (IIED barred by litigation privilege; malicious prosecution failed for lack of probable cause). Litinsky appealed only the malicious prosecution ruling.
- The Court of Appeal affirmed: an attorney may rely on client-supplied evidence unless indisputably false, and here Kaplan had sufficient admissible facts (client testimony, invoices/fax header, expert support, prior court rulings) to establish arguable merit/probable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Litinsky show a probability of prevailing on her malicious prosecution claim under anti‑SLAPP step two? | Litinsky: she produced uncontroverted, verifiable evidence (forensic opinion, Kent declaration, invoice/fax evidence) proving the agreement was fabricated, so no reasonable attorney could have believed the claim. | Kaplan: had probable cause based on client declarations/deposition, purchaser invoices with matching fax header, an expert to authenticate the fax header, and a prior denial of the motion to quash; attorneys may rely on client info unless indisputably false. | Held: Affirmed. Probable cause existed; Kaplan’s evidence made the client’s claim arguably meritorious and Litinsky failed to show a probability of success. |
| Were the trial court’s evidentiary rulings on Kaplan’s declaration reversible error? | Litinsky: the court erred by overruling objections to Kaplan’s declaration and admitting impermissible statements. | Kaplan: testimony about her knowledge and state of mind was relevant to probable cause/malice; admissible and not prejudicial. | Held: No abuse of discretion and no shown prejudice; evidentiary rulings do not warrant reversal. |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (explains anti‑SLAPP two‑step procedure)
- Rusheen v. Cohen, 37 Cal.4th 1048 (describes threshold showing for protected activity)
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (plaintiffs/attorneys may bring arguably meritorious claims; court may consider both parties' evidence on anti‑SLAPP)
- Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (defines probable cause standard for malicious prosecution against litigant/attorney)
- Daniels v. Robbins, 182 Cal.App.4th 204 (attorneys generally entitled to rely on client information unless client known to be false)
- Arcaro v. Silva & Silva Enterprises Corp., 77 Cal.App.4th 152 (collection agency lacked probable cause where opposing party produced indisputable handwriting exemplars)
- Morrison v. Rudolph, 103 Cal.App.4th 506 (attorneys may reasonably rely on clients’ accounts when supported by competent evidence)
- Swat‑Fame, Inc. v. Goldstein, 101 Cal.App.4th 613 (discusses limits of Arcaro and attorneys’ reliance on client information)