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Date: 08-07-2020
Case Style:
Golden State Seafood, Inc. v. Jamie R. Schloss
Case Number: B295937
Judge: Stratton, J.
Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Jamie R. Schloss, in pro. per
Defendant's Attorney: Collin Seals and Charles L. Murray III
Description:
Golden State Seafood filed an action for malicious
prosecution and unfair business competition against William
Cohen (Cohen) and his attorney appellant Jamie R. Schloss
(Schloss). The complaint alleged Schloss filed a prior lawsuit
against Golden State Seafood on behalf of his client Cohen,
knowing he lacked probable cause to bring the action. Golden
State Seafood also alleged Schloss maliciously refused to dismiss
the prior action and engaged in unfair business practices.
Schloss filed an anti-SLAPP motion. The trial court denied
the motion because Golden State Seafood demonstrated a
likelihood of success on the merits of its claims, thereby
satisfying the second prong of the anti-SLAPP test. Schloss filed
a motion for reconsideration. That motion was also denied.
Schloss now appeals the orders denying his two motions.
We affirm both orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Factual Background
Golden States Seafood (GSS) is a wholesale seafood
distributor based in downtown Los Angeles. On August 19, 2015,
GSS was making a delivery to Bellaj Banquet Hall (Bellaj) in
Burbank. While making the delivery, the GSS truck driver
parked in a space reserved for drivers with valid handicap
placards on display. At that point, William Cohen parked his car
and confronted the GSS driver for parking improperly. He
“pulled out a camera and began taking photographs” while the
GSS driver apologized and moved the delivery truck.
3
Cohen contacted GSS, demanding personal financial
compensation because its driver had improperly parked in the
handicap parking spot. GSS did not offer compensation.
Cohen, represented by attorney Schloss, then filed a
lawsuit against GSS, alleging violations of: 1) the Unruh Act
(Civ. Code, § 51 et seq.) premised upon a violation of the
Americans with Disabilities Act of 1990 (ADA); and 2) the
California Disabled Persons Act (DPA) (Civ. Code, § 54 et seq.).
On May 23, 2017, when trial by jury commenced, Cohen’s
evidence unfolded in an unexpected way. In his complaint,
Cohen had initially alleged a denial of access to goods and
services at Bellaj. His complaint read: “On Wednesday August
19, 2015 at approximately 3:30 p.m., William Cohen was trying to
eat at the Bellaj Banquet Hall . . . but was prevented from doing
so because he could not park in the handicapped parking space.”
However, at trial, Cohen testified he was actually seeking and
was denied access to the 7-11 convenience store located adjacent
to the Bellaj because he needed to get a drink as he felt
dehydrated. Similarly, Schloss represented to the jury that
Cohen was denied access to the nearby 7-11 store, as opposed to
Bellaj.
Also unusual was that Cohen presented no documentary
evidence at trial that he had a valid handicap placard at the time
of the incident at Bellaj, a placard he needed to display to park
legally in the space blocked by the GSS driver. (The record on
appeal does not include a complete transcript of Cohen’s oral
testimony; all we have is Schloss’s post-trial declaration that
Cohen testified he had been issued a valid placard, but had lost
the receipt showing when it went into effect.) Thus, at trial,
Cohen proved, at most, that the GSS driver committed a parking
4
violation when he parked his truck in a space reserved for
vehicles displaying handicap placards. For its part and in
response to the allegations in the operative complaint, GSS
presented evidence that Bellaj was not open for business on the
day in question, casting doubt on Cohen’s story as pled in the
complaint. On May 24, 2017, the jury returned a verdict in favor
of GSS. The jury found Cohen was not disabled at the time of the
alleged incident.
B. GSS’s Subsequent Civil Complaint
One year later, on May 24, 2018, GSS filed a civil complaint
against Cohen and Schloss, seeking damages, injunctive relief,
and attorney fees and costs. The complaint alleged three causes
of action: 1) wrongful use of civil proceedings (against Cohen
alone); 2) malicious prosecution (against Cohen and Schloss); and
3) violation of Business and Professions Code section 17200 et
seq. (against Schloss alone).
We do not discuss the first cause of action filed solely
against Cohen because he is not a party to this appeal. As to the
second cause of action for malicious prosecution, GSS alleged
Cohen and Schloss (collectively defendants) knowingly filed a
“meritless and malicious lawsuit” that was based on “fabricated
facts and a non-cognizable legal theory.”
The GSS complaint alleged no reasonable attorney would
have filed the parking case, but Schloss did so knowing he could
not prove GSS had violated the Unruh Act or the DPA. GSS
alleged defendants’ parking case had “absolutely no merit” in
that 1) defendants both knew there is no private right to enforce
parking violations; 2) defendants did not have standing to
privately prosecute a motor vehicle violation; 3) the facility Cohen
visited was owned and operated by Bellaj, not GSS; 4) Bellaj was
5
not open for business at the time of the incident; 5) GSS did not
operate or own any facility that denied access to Cohen; and 6)
Cohen was neither disabled nor handicapped on the date of the
incident.
The complaint further alleged defendants continued to
proceed with litigation “despite being informed of the reasons
why no reasonable attorney would bring such allegations on the
alleged facts” and after the trial court denied their ADA claims.
GSS alleged defendants “perpetrated this precise scheme on at
least one other occasion in an attempt to extort money from
another company making a delivery. Considering [Cohen]’s own
testimony that he has filed approximately twenty (20) ADA cases,
(where he is often represented by [Schloss]), . . . [Cohen] in
essence makes income prosecuting ADA cases.”
1
GSS alleged Cohen and Schloss, for the first time at trial,
claimed Cohen was trying to access the 7-11 rather than Bellaj.
“By changing the allegation at such a late date, . . . [Cohen] and
[Schloss] knew that [Cohen] was never actually denied access to
either [Bellaj] (which was not open), or 7-11 (which he could have
freely entered).”
The third cause of action alleged Schloss engaged in unfair
competition in violation of Business and Professions Code section
17200 et seq., in that Schloss, a licensed attorney, has earned
1 The complaint refers to Los Angeles Superior Court case
No. BC631960, filed by defendants against Carole & Jan’s
Moving Company. It alleges the complaint defendants filed
against GSS included language “leftover” from defendants’ case
against Carole & Jan’s Moving Company. According to GSS, the
alleged facts are “nearly identical,” involving a delivery truck
parked in a handicap parking space.
6
income in the past several years by filing nearly 20 ADA
lawsuits. He and Cohen have a contractual relationship where
Schloss is retained to prosecute “meritless legal lawsuits” based
on alleged ADA and Unruh Act violations against persons and
entities for improperly parking in handicap spaces. GSS sought
attorney fees and injunctive relief to enjoin defendants from
further engaging in such litigation.
C. Special Motion to Strike the Complaint
Schloss entered a general denial, and on August 30, 2018,
filed a special motion to strike GSS’s complaint as a strategic
lawsuit against public participation under the anti-SLAPP
statute, Code of Civil Procedure section 425.16.2
On October 16, 2018, the trial court issued an order
denying Schloss’s special motion to strike in its entirety. In doing
so, the trial court issued an extensive ruling discussing the many
bases upon which it found GSS would likely be successful in
prevailing on the merits of both claims.
D. Motion for Reconsideration
Ten days later, on October 26, 2018, Schloss filed a motion
requesting the court to reconsider its denial of his anti-SLAPP
motion because of new evidence—namely, a record from the
Department of Motor Vehicles (DMV) showing Cohen was issued
a disabled parking placard prior to the August 19, 2015 incident.
He contends Cohen’s causes of action were thus factually and
2 All further undesignated statutory references are to the
Code of Civil Procedure, unless otherwise indicated.
7
legally viable, and GSS had not shown any evidence of malice or
credible evidence establishing a lack of probable cause.
At the hearing on the motion for reconsideration, the trial
court found Schloss did “not present new facts, circumstances or
law to warrant reconsideration of the denial of the anti-SLAPP
motion, as required by CCP § 1008(a).” The DMV record
(purportedly indicating Cohen had a valid handicap placard at
the time of the incident) “was available when the anti-SLAPP
motion was heard, notwithstanding Schloss’ assertion that it took
5 hours to obtain the Registration Information Request form and
that it was not worth the time and expense to obtain this
document for the trial” in Cohen’s initial lawsuit against GSS.
The court denied Schloss’s motion for reconsideration. In
doing so, the trial court expressly allowed GSS “to file a motion
for sanctions pursuant to CCP § 1008(d).”
On February 22, 2019, Schloss filed a notice of appeal from
the trial court’s denial of the anti-SLAPP motion and denial of
the motion for reconsideration.
DISCUSSION
A. Applicable Law
Section 425.16 provides, inter alia, that “[a] cause of action
against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).) An “ ‘act in
furtherance of a person’s right of petition or free speech . . . in
connection with a public issue’ ” is defined in section 425.16 to
8
include, in relevant part: “any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,”
and “any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public
interest.” (Id., subd. (e).)
The Legislature enacted section 425.16 to prevent and
deter “lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a).) Thus, the purpose of
the anti-SLAPP law is “not [to] insulate defendants from any
liability for claims arising from the protected rights of petition or
speech. It only provides a procedure for weeding out, at an early
stage, meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
When a party moves to strike a cause of action under the
anti-SLAPP law, a trial court evaluates the special motion to
strike using a two-prong test: (1) has the moving party “made a
threshold showing that the challenged cause of action arises from
protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056); and, if so, (2) has the non-moving party demonstrated that
the challenged cause of action has “ ‘minimal merit’ ” by making
“a prima facie factual showing sufficient to sustain” a judgment
in its favor? (Baral, supra, 1 Cal.5th at pp. 384–385; Navellier v.
Sletten (2002) 29 Cal.4th 82, 93–94; see also § 425.16, subd.
(b)(1)). After the first prong is satisfied by the moving party, the
burden shifts to the non-moving party to “demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, at p. 396.) If the plaintiff
9
can show a probability of prevailing on any part of its claim, the
cause of action is not meritless and will not be stricken. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
B. Standard of Review
We review a trial court’s ruling on a special motion to
strike pursuant to section 425.16 under the de novo standard.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788;
Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067 (Park).) “In other words, we employ the
same two-pronged procedure as the trial court in determining
whether the anti-SLAPP motion was properly granted.”
(Mendoza v. ADP Screening & Selection Services, Inc. (2010)
182 Cal.App.4th 1644, 1652.)
We consider “the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.” (§ 425.16, subd. (b)(2).) In considering the pleadings and
declarations, we do not make credibility determinations or
compare the weight of the evidence; instead, we accept the
opposing party’s evidence as true and evaluate the moving party’s
evidence only to determine if it has defeated the opposing party’s
evidence as a matter of law. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).) Where a
complaint identifies a number of acts of alleged misconduct and
theories of recovery, for purposes of reviewing an anti-SLAPP
motion, it is sufficient to focus on just one. (Oasis West Realty,
LLC v. Goldman, supra, 51 Cal.4th at p. 821.)
C. Prong 1: Arising from Protected Activity
Schloss’s initial burden is to show that the two causes of
action in GSS’s complaint against Schloss arise from protected
activity. (Park, supra, 2 Cal.5th at p. 1061.)
10
GSS’s malicious prosecution and unfair business
competition (Bus. & Prof. Code, § 17200 et seq.) causes of action
are based on conduct that is protected activity—i.e., the filing of
complaints against GSS and others for alleged violations of the
Unruh Act, DPA, and ADA. This is protected activity. (See
Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 [“ ‘[t]he
constitutional right to petition . . . includes the basic act of filing
litigation or otherwise seeking administrative action’ ”]; City of
Colton v. Singletary (2012) 206 Cal.App.4th 751, 766 (Colton)
[same]; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th
728, 734–736 [complaint for malicious prosecution arises out of
act in furtherance of right of free speech or petition under section
425.16].)
D. Prong 2: Probability of Prevailing on the Merits
The second prong of the anti-SLAPP analysis requires GSS
to show a probability of prevailing on its causes of action. We
reiterate the court does not weigh evidence or resolve conflicting
factual claims. Its inquiry is limited to whether plaintiff has
stated a legally sufficient claim and made a prima facie factual
showing sufficient to sustain a favorable judgment. The court
accepts plaintiff’s evidence as true and evaluates defendant’s
showing only to determine if it defeats plaintiff’s claim as a
matter of law. (Baral, supra, 1 Cal.5th at p. 384–385; Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson).)
1. Analysis: Malicious Prosecution
To prevail on a malicious prosecution claim, plaintiff must
show the prior action (1) was commenced by or at the direction of
the defendant and was pursued to a legal termination favorable
to the plaintiff; (2) was brought without probable cause; and
11
(3) was initiated with malice. (Soukup, supra, 39 Cal.4th at
p. 292.) “[A]n attorney may be held liable for malicious
prosecution for continuing to prosecute a lawsuit discovered to
lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th
958, 970 (Zamos).)
“The question of probable cause is ‘whether, as an objective
matter, the prior action was legally tenable or not.’ [Citation.]
‘A litigant will lack probable cause for his action either if he relies
upon facts which he has no reasonable cause to believe to be true,
or if he seeks recovery upon a legal theory which is untenable
under the facts known to him.’ [Citation] ‘In a situation of
complete absence of supporting evidence, it cannot be adjudged
reasonable to prosecute a claim.’ ” (Soukup, supra, 39 Cal.4th at
p. 292.) Thus, “ ‘probable cause is lacking “when a prospective
plaintiff and counsel do not have evidence sufficient to uphold a
favorable judgment or information affording an inference that
such evidence can be obtained for trial.” ’ ” (Morrison v. Rudolph
(2002) 103 Cal.App.4th 506, 512, overruled in part on other
grounds in Zamos, supra, 32 Cal.4th at p. 973.)
The court must ‘‘ ‘ “make an objective determination of the
‘reasonableness’ of [defendant’s] conduct, i.e., to determine
whether, on the basis of the facts known to [defendant], the
institution [and prosecution] of the [lawsuit] was legally
tenable.” ’ ” (Zamos, supra, 32 Cal.4th at p. 971.) “ ‘The test
applied to determine whether a claim is tenable is “whether any
reasonable attorney would have thought the claim tenable.” ’ ”
(Ibid.)
“The ‘malice’ element of the malicious prosecution tort
relates to the subjective intent or purpose with which the
defendant acted in initiating the prior action.” (Sheldon Appel
12
Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874.) “As an element
of malicious prosecution, malice ‘reflects the core function of the
tort, which is to secure compensation for harm inflicted by
misusing the judicial system, i.e., using it for something other
than to enforce legitimate rights and secure remedies to which
the claimant may tenably claim an entitlement.’ ” (Lanz v.
Goldstone (2015) 243 Cal.App.4th 441, 466–467.) “Malice ‘ “may
range anywhere from open hostility to indifference” ’; it is not
limited to ‘ “ill will toward plaintiff but exists when the
proceedings are [prosecuted] primarily for an improper
purpose.” ’ ” (Id. at p. 466.) “ ‘Malice may also be inferred from
the facts establishing lack of probable cause’ ” (Soukup, supra,
39 Cal.4th at p. 292), and lack of probable cause is a factor in
considering whether the claim was prosecuted with malice.
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th
204, 218.) “Since parties rarely admit an improper motive,
malice is usually proven by circumstantial evidence and
inferences drawn from the evidence.” (Ibid.)
GSS has met the first element of its malicious prosecution
claim, as Schloss prosecuted Cohen’s action against GSS which
concluded in a judgment in GSS’s favor.
As to the second element of probable cause, we find
sufficient evidence in the record that Schloss prosecuted, or at the
very least, continued to prosecute, Cohen’s lawsuit against GSS
knowing he lacked probable cause. This requires us to examine
what Cohen had to prove under the Unruh Act and DPA.
The Unruh Civil Rights Act, Civil Code sections 51
through 52, was enacted to “create and preserve a
nondiscriminatory environment in California business
establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious
13
discrimination by such establishments.” (Angelucci v. Century
Supper Club (2007) 41 Cal.4th 160, 167.) Civil Code section 51,
subdivision (f) incorporates the protections against
discrimination created by the Americans with Disability Act of
1990 (42 U.S.C. § 12101 et seq.) (ADA). It states: “ ‘A violation of
the right of any individual under the [federal ADA] shall also
constitute a violation of this section.’ ” (Flowers v. Prasad (2015)
238 Cal.App.4th 930, 937.) The ADA provides in pertinent part:
“No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who . . . operates a place
of public accommodation.” (42 U.S.C. § 12182(a).) The ADA
defines discrimination as “a failure to make reasonable
modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services,
facilities, privileges, advantages, or accommodations to
individuals with disabilities, unless the entity can demonstrate
that making such modifications would fundamentally alter the
nature of such goods, services, facilities privileges, advantages or
accommodations.” (42 U.S.C. § 12182(b)(2)(A)(ii); Baughman v.
Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1446.) As
our Supreme Court has held, there “is no indication that the
Legislature intended to broaden the scope of [Civil Code]
section 51 to include discriminations other than those made by a
‘business establishment’ in the course of furnishing goods,
services or facilities to its clients, patrons or customers.” (Alcorn
v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500.) This is in
accord with the actual language of the ADA which prohibits
14
discrimination by any person who “operates a place of public
accommodation.” (42 U.S.C. § 12182(a).)
The California Disabled Persons Act (Civ. Code, § 54 et
seq.) (DPA) “substantially overlaps with and complements the
Unruh Civil Rights Act.” (Jankey v. Lee (2012) 55 Cal.4th
1038, 1044.) The DPA guarantees people with disabilities equal
rights of access “to public places, buildings, facilities and services,
as well as common carriers, housing and places of public
accommodation.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th
661, 674, fn. 8.) The DPA incorporates the ADA, in that “[a]
violation of the right of an individual under the Americans with
Disabilities Act of 1990 . . . also constitutes a violation of this
section.” (Civ. Code, § 54, subd. (c).) Thus, an individual who is
“denied equal access” to a public place/facility/building, may bring
a cause of action under the DPA/ADA. “The phrase ‘denied equal
access’ necessarily implies that either the structure of the public
facility, or some policy of its operator, precluded equal access.”
(Urhausen v. Long Drugs Stores California, Inc. (2007)
155 Cal.App.4th 254, 263.)
Here, GSS was a wholesale seafood distributor. It did not
own or operate the Bellaj, the 7-11 convenience store, or any
business near the parking spot reserved for vehicles with
handicap placards. At best, its driver committed a Vehicle Code
violation by blocking the reserved space. This is not the type of
discrimination the Unruh Act, DPA, or ADA was intended to
remedy. (See 28 C.F.R. § 36.101(a) [The purpose of the ADA is to
prevent “discrimination on the basis of disability by covered
public accommodations and requires [said] places . . .to be
designed, constructed, and altered in compliance with
accessibility standards”].) As the trial court found, GSS is not a
15
“business establishment” subject to the statutes’ reach. Nor was
Cohen one of GSS’s “clients, patrons or customers” to whom it
was providing a good or service. (Alcorn v. Anbro Engineering,
Inc., supra, 2 Cal.3d at p. 500.) Filing suit against GSS for its
delivery driver’s parking error where, as here, GSS was not a
business establishment providing goods or services to Cohen,
establishes lack of probable cause to bring suit.
A second fact demonstrating the plain lack of probable
cause encompasses the cause of action under the DPA as well as
the Unruh Act claim. Schloss alleged GSS denied Cohen access
to public accommodations because Cohen could not park in the
reserved handicap space blocked by GSS’s driver. However,
Cohen omits a necessary fact he failed to prove at trial. The
handicap parking space was reserved by law for drivers who
displayed either a special identification license plate or a valid
handicap placard issued pursuant to Vehicle Code sections
22511.55 or 22511.59. (Veh. Code, § 22507.8, subd. (a).) Schloss
failed to prove at trial that his client had an unexpired placard or
license plate and that he had the placard or plate with him to
display so that he could legally park in the blocked space.
Indeed, Schloss later told the court that although his client had
the handicap placard, he “had lost the document showing when it
had been issued”; Schloss himself stated that Cohen had testified
to having also lost the “Placard Identification Card/Receipt” for
the placard expiring June 30, 2017. Schloss consciously decided
before trial “[it was] not worth spending a ½ day to a day of my
time tracking down a lost record.” It was Schloss’s deliberate
decision not to locate the proof he needed. Schloss’s statements
also suggest that if his client had lost the placard prior to trial,
the placard was not available to be displayed on the day of the
16
incident. In any event, without proof at trial that he was entitled
to legally park in the blocked space because he had a valid
handicap placard on display at the time of the incident, Cohen
could not prevail on his claim that he had been illegally denied
access to the Bellaj or the 7-11. Under the evidence presented,
Cohen had no tenable cause of action under the DPA. (Civ. Code,
§ 54.1, subd. (e) [“This section does not preclude the requirement
of the showing of a license plate or disabled placard when
required by enforcement units enforcing disabled persons parking
violations pursuant to Sections 22507.8 and 22511.8 of the
Vehicle Code.”].)
Moreover, even if GSS could in some way be held liable for
its driver’s actions, Cohen’s sudden change of story at trial is a
reasonable basis to infer that Cohen was not accessing goods or
services from anyone, let alone GSS, on the day in question.
Under the Unruh Act, Cohen had to show he was prevented from
accessing goods and services from some entity. Once it became
clear at trial that Bellaj was not open that day, Cohen changed
his story, pivoting to the 7-11 store. We find a jury might
reasonably conclude that Schloss, when he learned Bellaj was not
open, should have realized the complaint as pled, was untenable,
lacked probable cause, and should not have been prosecuted.
Schloss’s contention that he was entitled to rely on the
information and photographs supplied by his client does not
rescue him. While “the attorney is entitled to rely on information
provided by the client” (Morrison v. Rudolph, supra,
103 Cal.App.4th at pp. 512–513), once the lawyer discovered the
client’s statements are false, the lawyer cannot rely on such
statements in prosecuting an action. Schloss actively advocated
the changed story and abandoned the facts as pleaded in the
17
complaint. It is probable a jury could find Schloss knowingly
prosecuted a false claim.
We note Schloss places great importance on the fact that
before the jury returned its verdict for GSS in Cohen’s initial
action against GSS, the trial court had denied GSS’s directed
verdict motion. Schloss argues “denial of a directed verdict
[motion] defeats a later malicious prosecution action” and the
trial judge’s decision “is conclusive.” We disagree. We make our
determination as to whether GSS has a probability of prevailing
on its malicious prosecution claim on our own review of the record
de novo.
Schloss next argues probable cause is established by
applying the “interim adverse judgment” rule, in that the trial
court’s May 2017 interim ruling denying GSS’s motion for
directed verdict in Cohen’s initial action establishes Schloss had
probable cause in initiating and/or litigating his client’s claims
against GSS. Schloss then argues the fact that he had received a
favorable ruling in his other, prior case against Carole & Jan’s
Moving Company3 based on nearly identical alleged facts
“confirm[s] that the interim adverse judgment rule applies.”
The interim adverse judgment rule “concerns the probable
cause element of a malicious prosecution claim. In contrast to
the existence of malice—a question of fact regarding ‘the
subjective intent or purpose with which [a litigant] acted in’
prosecuting the underlying action—the existence of probable
cause is a question of law to be determined as an objective
matter.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th
767, 776.) Our state Supreme Court has held that “if an action
3 See fn. 1, ante.
18
succeeds after a hearing on the merits, that success ordinarily
establishes the existence of probable cause (and thus forecloses a
later malicious prosecution suit), even if the result is overturned
on appeal or by later ruling of the trial court.” (Id. at p. 771,
italics added; see Wilson, supra, 28 Cal.4th at p. 817–818.) We
are surprised by and reject Schloss’s contention that his success
in litigating another case against another company (Carole &
Jan’s Moving Company) for a different incident with different
parties is grounds for application of the interim adverse
judgment rule in this unrelated case; that case has no bearing on
this case.
Similarly, we are not persuaded that a denial of a motion
for directed verdict equates to a judgment “on the merits.” We
reach that conclusion based on our reading of section 630,
subdivision (c), which provides: “If the motion [for directed
verdict] is granted, unless the court in its order directing entry of
the verdict specifies otherwise, it shall operate as an adjudication
upon the merits.” (§ 630, subd. (c), italics added.) Nowhere in
section 630 or any other authority provided by Schloss does it
state that a denial of a directed verdict motion amounts to an
adjudication on the merits. Further, we are not aware of any
authority where a court must apply the interim adverse
judgment rule to a denial of a motion for directed verdict.
Moreover, it is plain that when the trial court in the underlying
action denied the motion for a directed verdict, it did so “at this
time,” expressly stating counsel could raise the issues again on
the merits after trial if necessary, via a motion for judgment
notwithstanding the verdict. The trial court wanted the case to
go to the jury before it weighed in. Given the trial court’s
comments, that ruling does not and cannot inoculate the
19
malicious prosecution claim against a finding of lack of probable
cause.
We also find it important to note that while Schloss urges
us to apply the interim adverse judgment rule to the directed
verdict motion, he failed to include a copy of said motion, and any
opposition or reply papers as part of the record on appeal. This
precludes us from completing our analysis regarding the interim
adverse judgment rule, as we have no way of further checking
whether “the initial victory in the prior action—i.e., the denial of
the [directed verdict motion]—‘was induced by materially false
facts submitted in opposition’ to the motion. [Citation.] That is
because, ‘if denial of [the motion] was induced by materially false
facts submitted in opposition, equating denial with probable
cause might be wrong. [The directed verdict motion] might have
been granted but for the false evidence.’ ” (Kinsella v. Kinsella
(2020) 45 Cal.App.5th 442, 456.)
This, in turn, leads to the third element, malice. Malice
“can be inferred when a party continues to prosecute an action
after becoming aware that the action lacks probable cause.”
(Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.) However,
“ ‘lack of probable cause must be supplemented by other,
additional evidence.’ ” (Id. at p. 225.)
Here, the evidence suggests Schloss knowingly continued to
pursue the action after being advised by opposing counsel of the
defects in his case and after watching his client suddenly and
completely change material facts pled in the complaint.
Additional evidence supporting a finding of malice is Schloss’s
failure to prove at trial that his client indeed possessed and
displayed a valid handicap placard issued prior to the date of the
incident. The handicap placards and the placard identification
20
card receipts submitted to the court by Schloss/Cohen—prior to
those submitted as part of the reconsideration motion—indicated
Cohen had valid handicap placards from March 17, 2011 until
June 30, 2013; from March 19, 2013 until June 30, 2015; and one
that expired on June 30, 2017. While the earlier two placards
included their respective identification card receipts specifying
the date on which each placard was issued, the placard that
expired on June 30, 2017 did not contain its respective
identification card receipt (or any DMV documentation or
certificate), making it impossible for the trier of fact to determine
whether the placard Cohen possessed was issued prior to (and
thus was effective on) the date of the incident.
Schloss argues “[s]imply not being in possession of the
certificate is not enough to show that Cohen’s claim was ‘totally
and completely’ without merit.” We disagree. To knowingly
proceed to trial on a claim requiring proof of entitlement to use
the space reserved only for valid placard-displaying vehicles
without securing proof that Cohen had a placard in effect at the
time of the incident is akin to continuing with an action after one
discovers it is baseless. It is an additional fact supporting a
finding of malice. The first time the court was provided evidence
that Cohen’s placard (with the expiration date of June 30, 2017)
was issued by the DMV on February 27, 2015, and in effect on
the date of the August 19, 2015 incident was via Schloss’s
October 2018 motion for reconsideration of the denial of his antiSLAPP motion—nearly a year and a half after trial commenced
in Cohen’s/Schloss’s initial action against GSS.
Based on the foregoing, we conclude GSS has satisfied the
second prong of the anti-SLAPP test.
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2. Violation of Business and Professions Code Section
17200 et seq.
Business and Professions Code section 17200 provides: “As
used in this chapter, unfair competition shall mean and include
any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising and any act
prohibited by Chapter 1 (commencing with Section 17500) of Part
3 of Division 7 of the Business and Professions Code.” As the
California Supreme Court has stated, “[t]he Legislature intended
this ‘sweeping language’ to include ‘ “anything that can properly
be called a business practice and that at the same time is
forbidden by law.” ’ ” (Bank of the West v. Superior Court (1992)
2 Cal.4th 1254, 1266.) This code section thus “ ‘borrows’
violations from other laws by making them independently
actionable as unfair competitive practices.” (Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143; Colton,
supra, 206 Cal.App.4th at p. 770.)
Knowingly filing or pursuing unmeritorious legal actions
that are not factually or legally tenable, for the purpose of
earning income, qualifies as an unfair business practice. We
have already found GSS has made a prima facie showing a
likelihood of success on its malicious prosecution claim. GSS
alleges another example of Cohen and Schloss initiating a “nearly
identical” action against a delivery truck parking similarly
parking in a reserved handicapped space.4 GSS argues Schloss’s
business practice “appears to consist of utilizing Cohen in order
to initiate litigation against companies whose delivery persons
4 See fn. 1, ante.
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park in handicapped spots.” GSS refers to Schloss’s behavior as
part of a “ ‘legal shakedown scheme’ ” based on an abuse of the
Unruh Act, similar to abuse of the unfair competition law. We
are persuaded these facts and this legal theory have merit,
especially given our findings and decision in the preceding section
as to the malicious prosecution cause of action.
Based on the foregoing, we find GSS has met its burden of
showing a probability of prevailing on the merits of its cause of
action for unfair business practices.
E. Motion for Reconsideration
In his notice of appeal filed February 22, 2019, Schloss
indicated he was appealing from: 1) the court’s October 16, 2018
order denying his special motion to strike GSS’s complaint, and
2) the court’s January 23, 2019 order denying his motion
for reconsideration.
On appeal, Schloss raises no argument about the trial
court’s denial of the motion for reconsideration nor does he
identify a challenge to the trial court’s ruling in a “separate
argument heading” in his brief. (Roe v. McDonald’s Corp. (2005)
129 Cal.App.4th 1107, 1114.) We thus treat his contention as
waived. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th
719, 729, fn. 1.; In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 830 [“[t]he absence of cogent legal argument
or citation to authority allows this court to treat the contentions
as waived”].)
Outcome: The trial court’s denial of the anti-SLAPP motion is affirmed. The trial court’s denial of the motion for reconsideration is affirmed. Respondent Golden State Seafood, Inc., is awarded costs on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: