Filed 2/27/20 Brown v. Kimball, Tiery & St. John, LLP CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JAMIESON BROWN,

Plaintiff and Appellant,

v.

KIMBALL, TIERY & ST. JOHN, LLP et al.,

Defendants and Respondents.

E069422

(Super.Ct.No. PSC1606296)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Affirmed.

The Law Offices of Francisco J. Aldana, and Francisco J. Aldana, for Plaintiff and Appellant.

Kimball Tirey & St. John, and Abel Ortiz, Sage S. Stone and Jozef G. Magyar, for Defendants and Respondents.

I.

INTRODUCTION

In December 2014, Courtyard Partners-Palm Springs, L.P. (Courtyard), filed an unlawful detainer action against plaintiff and appellant, Jamieson Brown (the UD action). Courtyard voluntarily dismissed the UD action in January 2015.

In December 2016, Brown brought this case against Courtyard for malicious prosecution. In June 2017, Brown named as defendants Courtyard’s counsel in the UD action, defendants and respondents, Kimbrall, Tirey & St. John, LLP, Karl Patrick Schlect, and Eli Allen Gordon (collectively, KTS), alleging that KTS unlawfully filed and prosecuted the UD action on Courtyard’s behalf.

The trial court granted KTS’s motion to strike Brown’s operative first amended complaint (FAC) as a strategic lawsuit against public participation (SLAPP) under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The trial court ruled that (1) Brown’s malicious prosecution claim arose from KTS’s protected activity of filing the UD action, and (2) he could not succeed on the merits of the claim because it was barred by the one-year statute of limitations.

Brown appealed. We find no error and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, Brown entered into a one-year lease of an apartment owned by Courtyard. In December 2014, KTS filed the UD action on behalf of Courtyard to evict Brown. In January 2015, however, Courtyard voluntarily dismissed the UD action.

More than a year later, in December 2016, Brown filed a complaint against Courtyard and Does 1 through 10. In February 2017, Brown filed the FAC, alleging claims for: (1) retaliatory eviction; (2) constructive eviction; and (3) malicious prosecution. Brown’s claim for malicious prosecution alleged that Courtyard, through KTS, wrongfully filed the UD action for an unlawful purpose and never attempted to substantiate its allegations. Brown asserted Courtyard and KTS, who have connections to Mormonism, conspired “to defraud [him] and the courts” in retaliation for his criticisms of Mormonism. According to Brown, the UD action was in furtherance of that conspiracy.

Courtyard demurred to the FAC. In May 2017, the trial court sustained the demurrer without leave to amend as to the first two causes of action, but overruled the demurrer as to the malicious prosecution claim.

About a month later, on June 29, 2017, Brown filed an “Amendment to First Amended Complaint for Malicious Prosecution” under section 474 in order to substitute KTS for a Doe defendant. (Original caps omitted.) Brown made no other changes to the FAC.

In September 2017, KTS filed an anti-SLAPP motion to strike the FAC under section 425.16. KTS argued the FAC arose out of KTS’s protected activity of filing the UD action and its claims failed on the merits. As for the malicious prosecution claim, KTS argued (1) it was barred by the one-year statute of limitations and (2) failed on the merits because the UD action was brought with probable cause and without malice.

Brown opposed the motion, arguing that KTS’s filing the lawsuit was illegal and therefore not protected activity under section 425.16. Brown further asserted his malicious prosecution claim against KTS was timely because he was unaware of KTS’s connections to Mormonism until after he filed the FAC in December 2016, so his June 2017 amendment naming KTS as a defendant fell within the one-year statute of limitations.

The trial court granted the motion in full. The trial court concluded the malicious prosecution claim arose from KTS’s protected activity of filing the UD action and was barred by the one-year statute of limitations. Brown timely appealed.

III.

DISCUSSION

We note at the outset that KTS moved to strike all three claims in the FAC but, at the time of the motion, the trial court had already sustained Courtyard’s demurrer to the FAC’s first two claims without leave to amend. And when Brown amended the FAC to add KTS, he did not attempt to add new claims. Instead, he styled his amendment as an “Amendment to First Amended Complaint for Malicious Prosecution.” (Original caps omitted.) Further, in opposing KTS’s anti-SLAPP motion, Brown acknowledged the trial court had already “sustained a general demurrer to the first and second causes of action” and conceded that “the anti-SLAPP motion [should be] moot as to those causes of action.” The trial court nonetheless granted KTS’s special motion to strike all three causes of action.

On appeal, Brown again contends that the motion is “moot” as to the first two causes of action. We therefore address only the FAC’s third claim for malicious prosecution.

Brown contends the trial erred in ruling his malicious prosecution claim arose from KTS’s protected activity and that it was time-barred. We disagree on both counts. KTS’s filing the UD action on behalf of Courtyard was protected activity, and the one-year statute of limitations for Brown’s malicious prosecution claim was triggered when Courtyard dismissed the UD action in January 2015, so the claim, asserted against KTS in June 2017, was untimely filed. We further conclude that, even if the claim had been timely filed, it fails on the merits.

1. Standard of Review
2.
We conduct an independent review of the trial court’s ruling on an anti-SLAPP motion. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) We conduct an independent review of the entire record to determine whether the parties satisfied their respective burdens under section 425.16. (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622.) We look to the pleadings and supporting and opposing affidavits that state the acts upon which the liability or defense is based. (§ 425.16, subd. (b)(2); Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

3. Anti-SLAPP Principles
4.
The anti-SLAPP statute applies to any cause of action against a defendant “arising from any act of that person in furtherance of the person’s right of petition or free speech.” (§ 425.16, subd. (b)(1).) The anti-SLAPP statute protects against the use of the judicial system to chill the constitutionally protected right to make statements or writings before judicial or other official proceedings, and in connection with an issue under consideration or review by a judicial body or other legally authorized official proceeding. (§ 425.16, subd. (e).)

Anti-SLAPP motions are analyzed in two steps. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) At the first step, the court decides whether the subject action arises from rights as defined in section 425.16, subdivision (e). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) To do so, we determine whether a defendant’s acts underlying the plaintiff’s cause of action were in furtherance of the defendant’s right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The focus is on the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319.) In determining whether a cause of action arises from protected activity “‘the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity. [Citations.]’” (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284.)

For the anti-SLAPP statute to apply, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) A claim therefore arises from protected activity only if “that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1062.)

If the defendant establishes that the challenged claim arises from protected activity, “the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) But if the defendant fails to succeed on the first step of the anti-SLAPP analysis, we do not address the merits. (Ibid.)

5. The Malicious Prosecution Claim Arose from KTS’s Protected Activity of Filing the UD Action
6.
Brown contends the malicious prosecution claim did not arise out of KTS’s protected activity. The claim alleged, in relevant part, that KTS wrongfully brought the UD action against Brown and never tried to substantiate its allegations. Thus, as Brown acknowledges on appeal, “[t]he wrongs complained of in this case” include KTS’s alleged “malicious prosecution of an unlawful detainer action.” “Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1521.) Thus, “[t]he filing of an unlawful detainer complaint is anti-SLAPP protected activity.” (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248.) The trial court therefore correctly concluded that Brown’s malicious prosecution claim arose from KTS’s protected activity of filing the UD action.

Brown argues the trial court erred because the retaliatory eviction statute, Civil Code section 1942.5, preempts the litigation privilege contained in Civil Code section 47, subdivision (b), and removes his malicious prosecution claim from the protections of the anti-SLAPP statute. We disagree. Although the litigation privilege may not provide a defense to a Civil Code section 1942.5 claim, a claim under Civil Code section 1942.5 based on the defendant’s filing an unlawful detainer action nonetheless arises from protected activity. (See Winslett v. 1811 27th Avenue, LLC, supra, 26 Cal.App.5th at pp. 256, 259 [holding that “the filing of an unlawful detainer action . . . [is] protected activity under the anti-SLAPP statute” but holding that the litigation privilege does not provide a defense to a claim under Civil Code section 1942.5].) Whether Civil Code section 1942.5 or the litigation privilege controls has no bearing on whether the malicious prosecution claim arose from protected activity. We therefore reject Brown’s argument that his malicious prosecution claim did not arise from KTS’s protected activity.

7. Brown Is Not Likely to Succeed on the Merits of His Malicious Prosecution Claim Because it Was Untimely Filed and Lacked Merit
8.
Because KTS satisfied its burden of showing Brown’s malicious prosecution claim arose from its protected activity of filing the UD action, the burden shifted to Brown to establish that he was likely to succeed on the merits of the claim. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) Brown contends the trial court erred in concluding he could not meet his burden because the claim was barred by the one-year statute of limitations. We disagree. The statute of limitations was triggered when Courtyard voluntarily dismissed the UD action on behalf of Courtyard in January 2015—almost two years before Brown filed this case in December 2016, more than two-and-a-half years before Brown asserted the malicious prosecution claim against KTS in July 2017, and well beyond the one-year statute of limitations. And although the trial court did not reach the merits, we further conclude Brown cannot succeed on his malicious prosecution claim as a matter of law.

Claims for malicious prosecution against an attorney or law firm have a one-year statute of limitations. (Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 793-794.) Malicious prosecution claims accrue “at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously. [Citation.]” (Babb v. Superior Court (1971) 3 Cal.3d 841, 846.) Brown’s malicious prosecution claim therefore accrued in January 2015, when Courtyard voluntarily dismissed the UD action. Thus, Brown’s July 2017 claim for malicious prosecution against KTS was not timely filed.

Brown offers two arguments as to why the claim was timely. We find neither of them persuasive.

First, Brown argues for the first time on appeal that his malicious prosecution claim was timely because he was unaware Courtyard filed the UD action on the advice of KTS until Courtyard asserted an “advice of counsel” affirmative defense to the claim in its June 2017 answer. Because Brown did not make this argument in the trial court, he has forfeited it on appeal. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [holding arguments raised for first time on appeal are forfeited].)

But even if Brown had not forfeited the argument, we reject it on its merits. The one-year statute of limitations began to run when Brown knew or should have known of KTS’s allegedly wrongful acts or omissions. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751.) Here, KTS filed the UD action on behalf of Courtyard, represented Courtyard throughout the proceedings, dismissed the UD action on their behalf, and corresponded directly with Brown before, during, and after the litigation on several occasions. Brown nonetheless argues he was not aware that Courtyard filed and prosecuted the UD action on KTS’s advice until Courtyard asserted an advice of counsel affirmative defense in June 2017.

Whether Brown actually knew that Courtyard filed the UD action on KTS’s advice is immaterial. The one-year statute of limitations was triggered when Brown “had sufficient knowledge, or access to knowledge” that KTS “had done something wrong to [him].” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 685.) KTS’s extensive involvement with the UD action was sufficient to trigger the statute of limitations by January 2015, when KTS dismissed the UD action for Courtyard. (See Connelly v. Bornstein, supra, 33 Cal.App.5th at pp. 788, 798-799 [holding that one-year statute of limitations for malicious prosecution action against landlord’s attorney for filing an unlawful detainer action began upon voluntary dismissal of the action].)

Second, Brown argues the statute of limitations did not begin to run until after he filed the FAC, when he discovered that KTS’s “connections to Mormonism” and a purported “corruption scandal” motivated its filing of the UD action for Courtyard. We reject Brown’s argument for two reasons. First, Brown waived the argument by failing to provide any supporting authority or reasoned explanation. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [contention is waived if not supported by legal authority].) Second, according to his own testimony, Brown was aware of the basis for his malicious prosecution claim against KTS—its involvement with the UD action—long before he filed the FAC. Brown stated in his declaration opposing KTS’s anti-SLAPP motion that he considered suing KTS around April 2015 for its involvement with the UD action. The fact that Brown did not know of KTS’s purported motive for representing Courtyard in the UD action (i.e., KTS’s alleged Mormon affiliations) until after he filed the FAC is immaterial because by his own admission he suspected wrongdoing by KTS in April 2015. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-808 [observing statute of limitations is triggered when plaintiffs have “‘“‘information of circumstances to put [them] on inquiry’”’” that “a type of wrongdoing has injured them”].) In any event, as explained above, we conclude the statute of limitations was triggered in January 2015, when Courtyard dismissed the UD action.

But even if Brown’s malicious claim were timely filed, it failed on the merits. “To establish a cause of action for malicious prosecution, a plaintiff must prove that the underlying action was (1) terminated in the plaintiff’s favor, (2) prosecuted without probable cause, and (3) initiated with malice.” (Silas v. Arden (2012) 213 Cal.App.4th 75, 89.) Brown cannot establish the second or third elements.

First, the UD action had probable cause. A case has probable cause if “any reasonable attorney would have thought the claim was tenable.” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 114.) By contrast, a plaintiff lacks probable cause “if he relies upon facts which he has no reasonable cause to believe to be true, or seeks recovery upon a legal theory which is untenable under the facts known to him.” (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 568.) Courtyard filed the UD action because Brown had not paid the rent on time and refused to vacate the apartment, which is precisely the scenario in which an unlawful detainer action is appropriate. (See § 1161, subd. (2).) The UD action therefore had probable cause.

Second, the UD action was not brought with malice. “‘[M]alice is present when proceedings are instituted primarily for an improper purpose.’” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407-1408.) A “client’s malice is not imputed to the attorney; rather, the liability of the attorney depends upon the attorney’s own action of maliciously pursuing an objectively untenable claim.” (Rogers v. Peinado (2000) 85 Cal.App.4th 1, 7, disapproved on another ground by Brennan v. Tremco, Inc. (2001) 25 Cal.4th 310, 317.) As explained, the UD action was not “objectively untenable” because Courtyard filed the UD action against Brown for nonpayment of rent. To support his argument that KTS acted with malice, Brown cites only the FAC, but “pleadings do not constitute evidence.” (Karnazes v. Ares (2016) 244 Cal.App.4th 344, 354; see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [plaintiff cannot rely on allegations in complaint at second step of the anti-SLAPP analysis].) In short, there is no evidence in the record that KTS acted with malice in bringing the UD action against Brown on behalf of Courtyard.

Because Brown’s malicious prosecution claim was time-barred and failed on the merits, the trial court correctly concluded Brown did not meet his burden of showing he was likely to succeed on the merits of the claim. Accordingly, the trial court did not err in granting KTS’s anti-SLAPP motion to strike Brown’s malicious prosecution claim.

IV.

The judgment is affirmed. KTS is awarded its costs on appeal. Brown’s requests for judicial notice are denied as unnecessary.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.