Mendoza v. Wichmann
194 Cal. App. 4th 1430
Cal. Ct. App.2011Background
- Defendants moved to strike Mendoza’s malicious prosecution complaint as an anti-SLAPP, which the trial court denied, ruling Mendoza showed likelihood of success on the merits.
- Mendoza represented Wallis in the Wallis action and alleged Wichmann caused safety concerns and vandalism against L&M, leading to a police incident report naming Wichmann.
- During the Wallis action, Livingston (L&M) relayed security concerns to Woodward, Rotunda Partners, and Mendoza, which contributed to the police report about Wichmann.
- Wichmann and Kolb filed a defamation action against Mendoza; Mendoza was not a party to some related motions, including L&M’s summary judgment, which affected prior findings on probable cause.
- The trial court held that Mendoza had shown lack of probable cause and malice sufficient to survive an anti-SLAPP motion; on appeal, the court reversed, finding probable cause existed as a matter of law.
- The appellate court concluded that because probable cause existed, Mendoza could not prove the essential element of malicious prosecution, and directed dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was probable cause to file the defamation action | Mendoza lacked direct evidence but had circumstances showing no reasonable attorney would think filing was tenable | Wichmann and Kolb had undisputed evidence supporting tenability of the defamation suit | Probable cause existed as a matter of law |
| Whether the defamation action ended in Mendoza’s favor | The action terminated in Mendoza’s favor via arbitration judgment | Judgment on the arbitrator’s award does not defeat probable cause | Ended in Mendoza’s favor; however, this does not defeat underlying probable cause for Malicious Prosecution claim in anti-SLAPP context |
| Whether the advice of counsel defense applies | Defense should not apply where underlying probable cause is lacking | Advice of counsel can shield if there was probable cause and full disclosure | Not applicable here; court found probable cause existed, thus defense not availing Mendoza |
Key Cases Cited
- Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (Cal. 1989) (probable cause standard in malicious prosecution; low threshold for tenable claim)
- Kreeger v. Wanland, 141 Cal.App.4th 826 (Cal. Ct. App. 2006) (anti-SLAPP minimal-merit burden; relation to probable cause)
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (Cal. 2002) (probable cause standard; burden on lack of merit)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. 2006) (probable cause in underlying action; objective test)
- In re Marriage of Flaherty, 31 Cal.3d 637 (Cal. 1982) (probable cause standard; frivolousness analogy in civil actions)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (probable cause and merit standard in anti-SLAPP context)
- Downey Venture v. LMI Ins. Co., 66 Cal.App.4th 478 (Cal. Ct. App. 1998) (probable cause; factual disputes and legal determination)
- Zamos v. Stroud, 32 Cal.4th 958 (Cal. 2004) (probable cause; undisputed facts; legal determination)
- Matson v. Dvorak, 40 Cal.App.4th 539 (Cal. Ct. App. 1996) (defamation proof requirements for probable cause)
- Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation, 158 Cal.App.4th 1075 (Cal. App. 2008) (standard of review for anti-SLAPP on probable cause)