Nunez v. Pennisi
193 Cal. Rptr. 3d 912
Cal. Ct. App.2015Background
- Joseph and Edward Nunez bought the fishing vessel Pioneer, hired Giuseppe Pennisi to install a refrigeration system and perform other repairs, and entered a written contract with payment milestones.
- Work was partly completed; the Pioneer sailed to Southern California before Pennisi finished repairs, and later required additional repair work by another company; disputes arose over quality, completion, and unpaid balance.
- Joseph (later joined by Edward) sued Pennisi and his company alleging fraud, UCL, breach of contract, and related claims; Pennisi filed cross-complaints for breach and recovery of amounts owed.
- At trial the court precluded plaintiffs’ undesignated expert testimony on causation; after the Nunezes’ opening statement the court granted nonsuit on their claims for failure to make a prima facie showing (statutorily deemed an adjudication on the merits), and the jury later returned verdicts for the Pennisis on their claims.
- The Pennisis then sued the Nunezes (and their attorneys) for malicious prosecution; the Nunezes moved to strike under California’s anti‑SLAPP statute (Code Civ. Proc. §425.16). The trial court denied the anti‑SLAPP motion and awarded $8,315 in fees; the Nunezes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether malicious prosecution claims arise from protected activity so anti‑SLAPP applies | Filing the underlying suit is protected petitioning activity | Anti‑SLAPP applies; thus plaintiffs must show probability of prevailing | Court: filing is protected; anti‑SLAPP first prong met, so plaintiffs must show minimal merit to avoid striking |
| Whether malicious prosecution plaintiffs (Pennisis/Grazia/Pennisi/Edward) showed probability of prevailing (elements: favorable termination, lack of probable cause, malice) | Pennisi: the nonsuit was a favorable termination; Nunez lacked probable cause and acted with malice; Grazia and Edward also argue participation | Nunezes argue nonsuit was technical (no merit), probable‑cause existed, and claims lacked malice; Edward argues he did not instigate or know of meritlessness | Court: Nonsuit (without contrary order) is deemed adjudication on the merits → favorable termination. Pennisi made a prima facie showing as to Joseph for lack of probable cause and malice. Claims against Edward and Grazia lacked minimal merit and must be stricken |
| Whether advice‑of‑counsel shields Nunez from malicious prosecution liability | Nunez: he filed on counsel’s advice, so good‑faith reliance defeats claim | Pennisi: Nunez did not fully disclose relevant facts to counsel (unfinished work, unpaid amounts, generator issues, post‑Pennisi repairs) | Court: Nunez failed to prove he fully disclosed relevant facts, so advice‑of‑counsel defense fails at anti‑SLAPP stage |
| Whether the fee award under §425.16(c) / §128.5 is proper and adequately supported | Nunezes: trial court’s fee order lacked the detailed written findings required by §128.5(c) and the finding of frivolousness was unsupported | Pennisis: anti‑SLAPP motion was frivolous and included false declarations justifying fees | Court: The award must be reversed because the written order did not "recite in detail" the conduct justifying sanctions; remand for either proper findings or denial of sanctions |
Key Cases Cited
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (2006) (anti‑SLAPP plaintiffs need only show minimal merit to avoid striking)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) (two‑step anti‑SLAPP test and burden shift)
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (2002) (probable cause standard in malicious prosecution; lenient standard to avoid chilling claims)
- Casa Herrera, Inc. v. Beydoun, 32 Cal.4th 336 (2004) (what constitutes a "favorable termination" for malicious prosecution)
- Bertero v. National General Corp., 13 Cal.3d 43 (1974) (advice‑of‑counsel as defense in malicious prosecution requires full disclosure)
- Albertson v. Raboff, 46 Cal.2d 375 (1956) (malice may be inferred where claim knowingly false)
- Chitsazzadeh v. Kramer & Kaslow, 199 Cal.App.4th 676 (2011) (§425.16(c) incorporates §128.5; written order must detail conduct supporting fee award)