Nunez v. Pennisi

Filed 10/27/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JOSEPH NUNEZ et al., H039910

(Santa Cruz County

Plaintiffs and Appellants, Super. Ct. No. CISCV176366)

v.

GIUSEPPE PENNISI et al.,

Defendants and Respondents.

Joseph Nunez (Nunez) hoped to establish a commercial fishing business so that his

son, Edward, could be become a businessman and entrepreneur. Nunez faced two major

obstacles: Nunez had no prior experience in the fishing industry and the commercial

fishing vessel he and his son purchased for $1, the Pioneer, was in need of extensive

repair. So, in addition to hiring a captain, Nunez contracted with Guiseppe Pennisi

(Pennisi) to make repairs.

When a dispute arose about the quality of Pennisi’s work, Nunez sued for breach

of contract, among other claims. Pennisi filed a cross-complaint alleging Nunez had

failed to pay amounts due under the contract. Edward was added as a party as the case

went to trial, as was Pennisi’s spouse, Grazia.1 Following the Nunezes’ opening

statement, the trial court granted the Pennisis’ motion for nonsuit. The trial proceeded on

the Pennisis’ claims. The jury returned a verdict against the Nunezes and the court

entered judgment in favor of the Pennisis.

1

We refer to Edward Nunez and Grazia Pennisi by their first names for purposes

of clarity and not out of disrespect.

Subsequently, the Pennisis filed a complaint against the Nunezes and their

attorneys alleging they committed the tort of malicious prosecution by filing and pursuing

the original claims against the Pennisis. The Nunezes appeal an order denying their Code

of Civil Procedure section 425.162 (anti-SLAPP) motion to strike the malicious

prosecution complaint and awarding $8,315 in attorney fees to the Pennisis.3

On appeal, the Nunezes challenge both the denial of their anti-SLAPP motion and

the award of attorney fees. We conclude Pennisi has not shown his action against

Edward has the minimal merit necessary to avoid being stricken as a SLAPP, nor has

Grazia shown a probability of prevailing on the merits against either of the Nunezes. We

conclude, however, Pennisi has shown that his malicious prosecution action against

Nunez has minimal merit. In doing so, we hold that unless a trial court otherwise

specifies, a grant of nonsuit in the underlying case is a “legal termination favorable to the

plaintiff” for the purposes of a subsequent malicious prosecution action.

With respect to the order awarding attorney fees, we conclude reversal is required

because the order failed to comply with the requirements of sections 425.16, subdivision

(c) and 128.5, subdivision (c). For the foregoing reasons, we shall reverse and remand

with directions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Pioneer and the Contract

In July 2008, the Nunezes purchased the Pioneer, a commercial fishing vessel built

in 1944, for $1. Having no fishing or boating expertise, they hired Frank Flores to

captain the boat. On Flores’s recommendation, Nunez hired Pennisi to install a

2

Unspecified statutory references are to the Code of Civil Procedure.

3

The Nunezes’ attorneys in the underlying action were Richard deSaulles and

Daniel Cullem. The Pennisis obtained a default judgment against deSaulles for failure to

appear. The trial court granted Cullem’s anti-SLAPP motion; that order is not at issue in

this appeal.

2

refrigeration system. Pennisi operates G&G Engineering and Construction in Monterey,

a general contracting business specializing in refrigeration. Pennisi’s wife, Grazia, assists

him in the business.

Nunez and Pennisi entered into an agreement for the refrigeration work in July

2009. At Nunez’s direction, Pennisi contacted a Mexican company, Sirsa Titanium, to

design the refrigeration system and fabricate the chillers, evaporators, and condensers. In

August 2009, Pennisi learned Sirsa Titanium would provide the chillers in six to eight

weeks. He informed Nunez that, as a result, the refrigeration system would not be ready

for sardine fishing season. Nunez agreed that, for the upcoming season, his crew could

use ice to keep the sardines cold, a common practice in the sardine fishing industry.

Pennisi determined the Pioneer needed additional repairs to be seaworthy. Nunez

agreed to pay for the additional work Pennisi recommended and, therefore, Pennisi and

his team repaired the boat’s pumping and electrical systems.

In September 2009, Pennisi and Nunez signed a contract describing the agreed

upon expanded scope of work and setting forth a schedule of payment. The contract

stated Nunez had paid $230,000 and owed a balance of $174,945. The schedule of

payment provision required a down payment of $60,000 and weekly payments of $50,000

until the balance was paid in full.

The Pioneer went out sardine fishing in mid-September 2009. However, the crew

was forced to return to port because of steering problems unrelated to Pennisi’s work on

the boat. The boat remained docked for the remainder of the month. Pennisi helped

repair the steering, which delayed work on the refrigeration system. Between October 7

and October 28, 2009, work was performed on the Pioneer to repair the shaft and to align

the engine. Nunez testified that the Pioneer was inoperable in October 2009 because of

repairs being performed on the shaft, not because of Pennisi’s work on the refrigeration

system.

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The refrigeration system’s chillers were installed on November 4, 2009. Pennisi

started the refrigeration system in the evening on November 7, 2009. At that time, he

was “only able to run one compressor off one generator” because, according to Pennisi,

“the generators [Nunez] had purchased were worn out and inefficient, and could not

produce steady consistent power.” Pennisi “had informed [Nunez] that the generators

would have to be replaced,” but Nunez had failed to do so despite representing “that he

would obtain or purchase new generators.”

Gabriel Koch, who worked on the Pioneer’s refrigeration system with Pennisi,

testified that “the generators were not giving the proper voltage for the [refrigeration]

system to stay where it should be to keep the chillers cold so that fish could stay cold.”

Ernest Pagan, a commercial fisherman and shipwright, testified that he was on the

Pioneer on the night Pennisi started the refrigeration system. Pagan looked at Pennisi’s

work on the refrigeration system and judged it to be “[a]bsolutely beautiful . . . very

professional.” According to Pagan, “the generators did not put enough power out . . . [s]o

you could not run all four of [the compressors] together. You had to run one at a time,

otherwise the system would totally collapse.” Pennisi told Pagan he planned to return to

the boat the following day to continue working on the refrigeration system.

The next day, November 8, 2009, Pennisi went to work on the Pioneer as usual but

it was gone, along with tools belonging to Pennisi and his team. At Nunez’s direction,

Flores had sailed the boat to Southern California to start squid fishing. According to

Pagan, Pennisi was “upset” the boat was gone and “disappointed that he couldn’t finish

the job.” Koch testified that the Pioneer left Monterey for Southern California before

they had finished work on the refrigeration system. Because he did not know the boat

was leaving and he had more work to do, Koch left approximately $1,000 worth of tools

on the boat.

Dennis Leudesiaire, a Pioneer crew member, testified that on the morning the

Pioneer left Monterey for Southern California, Flores and Nunez “decided we were going

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to leave to go down south and they weren’t going to wait for [Pennisi] to come back and

finish the [refrigeration] system.” Leudesiaire testified that, “[a]ccording to [Flores],”

Nunez “said F [Pennisi], . . . he ain’t going to get his money, we’ll have somebody down

south in San Pedro take care of the refrigeration.” According to Leudesiaire, the

refrigeration system “ran,” but “you couldn’t run the whole system at once” and “it

would shut off all the time.”

Nunez testified that when he took the boat to Southern California on November 8,

2009, he believed the refrigeration system was working and he did not inform Pennisi of

his plans to leave. Nunez further testified at his deposition in the underlying case that he

owed Pennisi approximately $111,000 when he took the Pioneer to Southern California.

The refrigeration system did not work properly so, in January 2010, Nunez paid

Quality Refrigeration $70,000 to repair the system. According to Nunez, a mechanic at

Quality Refrigeration told him Pennisi’s prior work on the refrigeration system was

inadequate.

Pagan again examined the Pioneer’s refrigeration system sometime after the

Pioneer sailed to Southern California. At that time it looked to Pagan like “two fish with

a pitchfork tried to fix” the system because “somebody [had] chopped all the wires and

messed up the harnesses” since the time Pennisi last worked on the system.

B. The Underlying Lawsuit

Nunez retained an attorney, Richard deSaulles, on a contingent fee basis to sue

Pennisi for the allegedly substandard work. On April 7, 2010, Nunez filed a seven count

complaint against Pennisi and G&G Engineering and Construction asserting causes of

action for fraud, unfair business practices, breach of contract, and accounting. The

complaint alleged Nunez had suffered $2.5 million in damages as a result of Pennisi’s

deficient and untimely work on the Pioneer. While Nunez now contends he never read

the complaint, he signed a verification attached to the complaint declaring under penalty

of perjury that he had read the complaint, knew its contents, and believed it to be true.

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Pennisi filed a cross-complaint against Nunez asserting claims for breach of contract,

breach of good faith and fair dealing, and goods and services rendered.

Nunez retained a marine engineer, Arthur W. Faherty, to inspect the Pioneer’s

refrigeration system in February 2010. In a report dated August 1, 2010, Faherty opined

that the refrigeration system’s design and installation were not consistent with good

marine engineering practice; the refrigeration system did not meet the standard of care for

marine installation; and the workmanship, in the design and installation of the

refrigeration system, did not meet the standard of care for marine installation. Faherty

offered no opinion as to whether the refrigeration system’s shortcomings were

attributable to Pennisi’s work. At his deposition, Faherty stated that he did not have, and

would not testify to, any opinions other than those stated in his report. DeSaulles

designated Faherty as an expert witness and submitted an expert witness declaration

stating Faherty would testify “concerning the design, installation, and workmanship of

the refrigeration, electrical, and plumbing systems and the work performed on the F/V

Pioneer by defendants . . . [and] whether the design, installation and/or workmanship of

the defendants . . . met the standards of good marine engineering practice and/or the

standard of care.”

DeSaulles also designated Steve Hughes, a fishery biologist, as an expert witness.

DeSaulles’s expert witness declaration stated Hughes “will offer testimony concerning

the loss of income suffered by plaintiff Joseph Nunez and the Fishing Vessel Pioneer as a

result of the inability of the F/V Pioneer to fish during the period from October 2009

through July 2010, and will testify concerning the present value of said lost earnings of

Joseph Nunez and Fishing Vessel Pioneer.” In a letter to attorney deSaulles, Hughes

opined the Pioneer lost $266,309 in net squid profit between October 1, 2009, and

January 6, 2010, and lost $43,107 in net sardine profit during the January 2010 and July

2010 season fishery openings. Hughes wrote that he used the “[d]efined claim periods

provide by [deSaulles’s] office consisting of the October 1, 2009 to January 6, 2010

6

fishery for market squid and the January and July 2010 season openings of the California

sardine fishery.” Hughes further wrote that he relied on “[t]elephone discussions with

Eddie Nunez and the skipper of the F/V Pioneer regarding the periods of lost squid and

sardine fishing in 2009 and 2010.”

The case proceeded to trial on January 30, 2012. On the first day of trial,

Pennisi’s counsel requested that Edward be added as a plaintiff and cross-defendant and

that Grazia be added as a defendant and cross-complainant. The following day, attorney

deSaulles agreed, stating “my clients agree to add [Edward] Nunez in exchange for the

addition of Grazia Pennisi.” Edward declared, in connection with the anti-SLAPP

motion, that he was not present in court that day and was never consulted about being

added as a party to the underlying action.

Pennisi had moved in limine before trial to preclude Faherty from offering any

undesignated testimony, including as to causation. The court granted the motion and

“precluded plaintiffs [(the Nunezes)] from offering undesignated expert witness

testimony or opinions as to whether any alleged act, breach, or omission by Defendants

caused any cognizable or recoverable damage to Plaintiffs or either of them.” Following

an Evidence Code section 402 hearing, the court ruled “that Plaintiffs were unable to

prove, and precluded from attempting to prove, that Plaintiffs were caused any

cognizable damage by reason of any alleged act, breach or omission of Defendants.”

Following the Nunezes’ opening statement, the Pennisis moved for a judgment of

nonsuit under section 581c, subdivision (a). On February 2, 2012, after briefing and

argument, the court granted the motion, concluding the Nunezes had not shown their

ability “to provide sufficient evidence to set forth the required elements of a prima facie

case.” Edward was present in court at that time.

The Pennisis’ claims were tried to the jury. On February 29, 2012, jurors rendered

special verdicts in favor of the Pennisis on their claims for breach of contract, breach of

good faith and fair dealing, and goods and services rendered. In particular, the jury found

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the Pennisis performed under the contract while the Nunezes failed to do so. Jurors

found the Pennisis had been damaged in the amount of $101,299, consisting of

$71,945.60 in contract damages and $29,353.40 for materials and services provided.

C. The Malicious Prosecution Action and Anti-SLAPP Motion

The Pennisis filed this malicious prosecution action against the Nunezes and their

attorneys in the underlying action in Monterey County Superior Court on October 15,

2012. After the case was transferred to Santa Cruz County at the request of one of the

defendant attorneys, the Nunezes filed an anti-SLAPP motion.

The trial court denied that motion. The court awarded $8,315 in attorney fees to

the Pennisis pursuant to section 425.16, subdivision (c). With respect to attorney fees,

the court’s written order states only “Defendants Joseph Nunez and Edward Nunez are

ordered to pay $8,315.00 in reasonable attorneys [sic] fees to Plaintiffs Giuseppe Pennisi

II and Grazia Pennisi.” At the hearing on the Nunezes’ anti-SLAPP motion, the court

explained the award of fees was based on its finding that the Nunezes’ anti-SLAPP

motion was “frivolous” and “the declarations submitted in support of [that] motion

include[d] false information.” The Nunezes timely appealed.

II. DISCUSSION

A. The Anti-SLAPP Statute

“[S]ection 425.16 provides a procedure for the early dismissal of what are

commonly known as SLAPP suits (strategic lawsuits against public participation)--

litigation of a harassing nature, brought to challenge the exercise of protected free speech

rights.” (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3

(Fahlen).) That provision states 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

8

plaintiff has established that there is a probability that the plaintiff will prevail on the

claim.” (§ 425.16, subd. (b)(1).)

A motion to strike filed under section 425.16 “is denominated an anti-SLAPP

motion.” (Fahlen, supra, 58 Cal.4th at p. 665, fn. 3.) In evaluating such a motion, the

trial court must engage in a two-step process. (Oasis West Realty, LLC v. Goldman

(2011) 51 Cal.4th 811, 819 (Oasis West Realty).) It first determines whether the

defendant has made a threshold showing that the challenged cause of action is one arising

from protected activity. (Ibid.) If the defendant makes the requisite showing, the burden

shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Id. at p.

820.) “The plaintiff need only establish that his or her claim has ‘minimal merit’

[citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 291 (Soukup); Jarrow Formulas, Inc. v. LaMarche (2003) 31

Cal.4th 728, 738 [“the anti-SLAPP statute requires only ‘a minimum level of legal

sufficiency and triability’ ”].) “ ‘Only a cause of action that satisfies both prongs of the

anti-SLAPP statute--i.e., that arises from protected speech or petitioning and lacks even

minimal merit--is a SLAPP, subject to being stricken under the statute.’ ” (Oasis West

Realty, supra, at p. 820.)

B. Standard of Review

We review the trial court’s decision de novo. (Flatley v. Mauro (2006) 39 Cal.4th

299, 325.) In so doing, 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).) We do not make credibility determinations or compare the weight of the

evidence presented below. 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, supra, 39 Cal.4th at p. 269, fn. 3.) An anti-

SLAPP motion should be granted “if, as a matter of law, the defendant’s evidence

9

supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for

the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

C. Threshold Showing of Protected Activity

The Pennisis’ malicious prosecution suit arises from the act of filing the

underlying lawsuit, which constituted protected activity, as the filing of lawsuits is an

aspect of the First Amendment right to petition. (Soukup, supra, 39 Cal.4th at p. 291.)

Accordingly, as the parties agree, the Nunezes’ motion satisfied the first prong of the

anti-SLAPP statute and the burden shifted to the Pennisis to demonstrate the probability

of prevailing in their action for malicious prosecution.

D. Probability of Prevailing on Malicious Prosecution Claim

To establish a probability of prevailing on their malicious prosecution claim, the

Pennisis “ ‘must demonstrate that the complaint is both legally sufficient and supported

by a sufficient prima facie showing of facts to sustain a favorable judgment if the

evidence submitted by [them] is credited.’ ” (Soukup, supra, 39 Cal.4th at p. 291.) They

“need only establish that [their] claim has ‘minimal merit.’ ” (Ibid.)

A plaintiff must plead and prove three elements to establish the tort of malicious

prosecution: a lawsuit “(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 (3) was initiated with malice.” (Soukup, supra, 39 Cal.4th at p. 292.)

We examine each element of the Pennisis’ claim in turn. First, however, we address the

Nunezes’ contention that Grazia lacks standing to bring a malicious prosecution action

against them.

1. Grazia’s Standing

“Ordinarily the person who is plaintiff in a malicious prosecution had been the

defendant in a prior proceeding which injured him [or her].” (MacDonald v. Joslyn

(1969) 275 Cal.App.2d 282, 287.) That is precisely the fact pattern at issue here. Grazia

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was a defendant in the underlying action. While she was added as a defendant shortly

before the court granted nonsuit, the Nunezes cite no authority indicating that deprives

her of standing to sue for malicious prosecution. Instead, they largely ignore the fact that

Grazia was a party, arguing that “they [(the Nunezes)] would have been unable to execute

or collect a judgment against [Grazia]” had they prevailed on their underlying action.

But of course that is not true given Grazia was a defendant in that action. Because she

was a defendant in the Nunezes’ underlying lawsuit, Grazia has standing to sue the

Nunezes for malicious prosecution.

2. Edward’s Involvement in the Underlying Lawsuit

According to the Nunezes, the underlying lawsuit was not “commenced by or at

the direction of” Edward, such that the Pennisis cannot prevail on a malicious prosecution

claim against him.

Liability for malicious prosecution is not limited to one who initiates an action. A

person who did not file a complaint may be liable for malicious prosecution if he or she

“instigated” the suit or “participated in it at a later time.” (5 Witkin, Summary of Cal.

Law (10th ed. 2005) Torts, § 497, pp. 730-731; Pacific Gas & Electric Co. v. Bear

Stearns & Co. (1990) 50 Cal.3d 1118, 1131, fn. 11 [“A person who is injured by

groundless litigation may seek compensation from any person who procures or is actively

instrumental in putting the litigation in motion or participates after the institution of the

action.”].)

Edward was added as a plaintiff in the underlying action based on the agreement

of an attorney who arguably purported to represent him (“my clients agree to add

[Edward] Nunez”). Edward now says he was not consulted before being made a party to

the underlying suit, although there is no evidence he objected to being added as a party

when he did appear. Within days of Edward becoming a plaintiff, and shortly after he

first appeared in court, the court granted nonsuit in favor of the Pennisis.

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Generally, a person added as a plaintiff during the pendency of an underlying

action is liable for malicious prosecution on the theory that he or she participated in the

suit. (See Paramount General Hospital Co. v. Jay (1989) 213 Cal.App.3d 360, 365, fn. 2

[party named as a defendant who later “agreed to be bound as if he were a plaintiff” can

be liable for malicious prosecution].) Given the showing of “minimal merit” required to

defeat an anti-SLAPP motion (Soukup, supra, 39 Cal.4th at p. 291), evidence Edward

was a plaintiff in the underlying action is sufficient to show he participated in the action

as required to expose him to malicious prosecution liability.

3. Favorable Termination

A lawsuit’s termination is favorable to the plaintiff, for purposes of a malicious

prosecution action, where it “ ‘ “reflect[s] the merits of the action and the plaintiff’s

innocence of the misconduct alleged in the lawsuit.” ’ ” (Siebel v. Mittlesteadt (2007) 41

Cal.4th 735, 741.) A technical or procedural termination--such as a dismissal on statute

of limitations grounds, pursuant to a settlement, or on the grounds of laches--is not

favorable for purposes of a malicious prosecution claim. (Casa Herrera, Inc. v. Beydoun

(2004) 32 Cal.4th 336, 342.)

The Nunezes’ underlying action against the Pennisis terminated when the trial

court granted nonsuit. The Nunezes maintain that termination was technical, and did not

reflect on the merits of their claims, because it was based on their failure to designate an

expert to testify as to causation.4

We disagree. Section 581c, subdivision (c) provides that where a motion for

judgment of nonsuit is granted, “unless the court in its order for judgment otherwise

specifies, the judgment of nonsuit operates as an adjudication upon the merits.” The

4

As an aside, we note that while the Nunezes imply their experts would have

testified as to causation had deSaulles properly designated them as causation experts,

there is no evidence showing either expert was prepared to opine as to whether any of

Pennisi’s acts or omissions caused the Nunezes’ damages.

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order for entry of judgment on nonsuit in the underlying action did not indicate whether

the judgment constituted an adjudication on the merits. Thus, the judgment is statutorily

deemed to be on the merits and is a favorable termination for purposes of this malicious

prosecution action.

We acknowledge that not every judgment of nonsuit should be grounds for a

subsequent malicious prosecution action. Some will be purely technical or procedural

and will not reflect the merits of the action. In such cases, trial courts should exercise

their discretion to specify that the judgment of nonsuit shall not operate as an

adjudication upon the merits. But, here, the Nunezes did not lose on some technical

ground; they lost because they could not prove an essential element of their case--

causation.

4. Probable Cause

The second element of a malicious prosecution claim is an underlying action

brought without probable cause. Probable cause to bring an action exists where the suit is

“arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable

attorney would have thought the claim tenable.” (Wilson v. Parker, Covert & Chidester,

supra, 28 Cal.4th at p. 824.) “This rather lenient standard for bringing a civil action

reflects ‘the important public policy of avoiding the chilling of novel or debatable legal

claims.’ ” (Id. at p. 817.) In view of that policy, “[o]nly those actions that ‘ “any

reasonable attorney would agree [are] totally and completely without merit” ’ may form

the basis for a malicious prosecution suit.” (Ibid.) A litigant lacks probable cause “ ‘if he

[or she] relies upon facts which he [or she] has no reasonable cause to believe to be true,

or if he [or she] seeks recovery upon a legal theory which is untenable under the facts

known to him [or her].’ ” (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 453

(Drummond).) “ ‘Where a prior action asserted several grounds for liability, an action for

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malicious prosecution will lie if any one of those grounds was asserted with malice and

without probable cause.’ ” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542.)

The Pennisis contend the Nunezes bear the burden on appeal to demonstrate they

had probable cause. Not so. In opposing the Nunezes’ anti-SLAPP motion, the Pennisis

bore the burden to make a prima facie showing that the Nunezes lacked probable cause.

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 216.) Because the

appellate standard of review is de novo, “ ‘our review is conducted in the same manner as

the trial court in considering an anti-SLAPP motion.’ ” (Paiva v. Nichols (2008) 168

Cal.App.4th 1007, 1016.) That is, we conduct an independent review of the entire record

to determine whether the Pennisis made a prima facie showing of facts necessary to

establish their claim at trial, including facts showing the Nunezes lacked probable cause.

(Ibid.)

The Pennisis presented evidence showing that, in the underlying action, Nunez

relied on facts he had no reasonable cause to believe to be true. First, Nunez’s underlying

complaint alleged Pennisi “unreasonably and without substantial justification

abandon[ed]” work on the Pioneer. But Koch, Pagan, and Pennisi testified that Pennisi

intended to return to work on the boat but could not because it was gone. Though Nunez

testified that “[a]s far as [he] was concerned, . . . [Pennisi] was finished [with his work],

and that’s why we took the boat,” Nunez admitted that he and Flores took the boat

without informing Pennisi of their plan to do so. This evidence supports an inference that

Nunez knew Pennisi had not abandoned work on the Pioneer as the verified complaint

alleged.

Second, the Nunez complaint alleged Pennisi “fail[ed] and refus[ed] to remedy

defects” in his work on the Pioneer. The Pennisis submitted evidence establishing

Pennisi was not informed of any alleged defects, let alone given the opportunity to

remedy them. In particular, Nunez testified he did not tell Pennisi any of his work was

“wrong” or needed to be redone. Nunez also testified that he did not tell Pennisi he

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needed to come back to work on the Pioneer after Flores took the boat to Southern

California. Instead, Nunez testified, he planned “to get qualified people to . . . get the

work done.” This evidence supports an inference that Nunez knew Pennisi never refused

to remedy any alleged defects.

Third, Nunez alleged he “fully performed all conditions, covenants, and promises

required by him on his part to be performed in accordance with the terms and conditions

of the aforesaid written agreement [(the September 2009 contract)].” However, Nunez

testified that the September 2009 contract required him to pay Pennisi an outstanding

total of $174,945.60, including a down payment of $60,000 and $50,000 per week until

the balance was paid off. And Nunez testified that when he took the Pioneer to Southern

California in early November he still owed Pennisi $111,000. That evidence shows

Nunez knew he had not fully performed his contractual promise to pay.

Finally, Nunez argued in his trial brief that he lost profits for the period between

October 1, 2009 to January 6, 2010, because the Pioneer was inoperable due to Pennisi’s

alleged conduct. But Nunez testified that he knew the Pioneer was inoperable during the

month of October 2009 for reasons unrelated to Pennisi’s work.

The foregoing evidence submitted by the Pennisis was sufficient to present a

prima facie case that Nunez prosecuted the underlying action without probable cause by

seeking to recover based on facts he had no reasonable cause to believe to be true.

Nunez argues the Pennisis cannot establish actionable lack of probable cause

because he filed the underlying action based on the advice of counsel. “Good faith

reliance on the advice of counsel, after truthful disclosure of all the relevant facts, is a

complete defense to a malicious prosecution claim.” (Bisno v. Douglas Emmett Realty

Fund 1988 (2009) 174 Cal.App.4th 1534, 1544; accord Bertero v. National General

Corp. (1974) 13 Cal.3d 43, 53-54 (Bertero).) The burden of proving the advice of

counsel defense is on Nunez. (Bertero, supra, at p. 54.) In his anti-SLAPP motion,

Nunez “failed to establish that [he] informed counsel of specific relevant facts prior to the

15

filing of the . . . action” (ibid.), including that (1) he did not permit Pennisi to complete

his work on the refrigeration system, (2) he did not replace the generators required to run

the refrigeration system as Pennisi recommended, (3) Quality Refrigeration performed

work on the refrigeration system before Faherty inspected it, and (4) he failed to pay

Pennisi money owed under the contract. Therefore, the advice of counsel defense fails.

With respect to Edward, however, the Pennisis failed to carry their burden to make

a prima facie showing of lack of probable cause. The Pennisis point us to no evidence

indicating Edward had the opportunity to learn the action lacked merit in the short time

he was a plaintiff. Nothing in the record demonstrates Edward knew or should have

known what the complaint alleged or the legal theories on which the suit relied.

Accordingly, the motion to strike the cause of action against Edward should have been

granted.

5. Malice

In the context of the tort of malicious prosecution, malice “refers to an improper

motive for bringing the prior action.” (Drummond, supra, 176 Cal.App.4th at p. 451.)

“[T]he cases speak of malice as being present when a suit is actuated by hostility[,] . . . ill

will, or for some purpose other than to secure relief” or where a plaintiff “asserts a claim

with knowledge of its falsity.” (Id. at p. 452.) Lack of probable cause, while not

sufficient by itself to prove malice, supports an inference of malice. (Ibid.)

The Pennisis point to no evidence showing the underlying suit was initiated

against Grazia with malice. Rather, the record evidence shows Grazia was made a

defendant at the suggestion of her own attorney. The Nunezes merely agreed to that

proposal. Because the Nunezes did not affirmatively seek to add Grazia as a defendant,

no motive--let alone an improper one--can be imputed to them in connection with her

status as a defendant.

With respect to Pennisi, the evidence is insufficient to establish a prima facie case

showing that Edward filed the underlying action with malice. Edward did not

16

affirmatively seek to become a party to the underlying action. Rather, he was added at

Pennisi’s request. There is no evidence, therefore, that he had any motive with respect to

formally becoming a party, let alone an improper one.

Pennisi contends Edward acted with malice by misleading one of the experts,

Hughes, in order to inflate the Pioneer’s alleged lost fishing profits. Hughes determined

the relevant time period during which the Pioneer could not fish because of Pennisi’s

alleged conduct to be October 1, 2009, to January 6, 2010 based on his conversations

with Edward, Flores, and deSaulles. In fact, as Nunez and Edward testified, the Pioneer

was inoperative for the month of October 2009 for reasons unrelated to Pennisi’s work.

Pennisi argues Hughes must have included October 2009 in the damages period because

Edward intentionally misled him in an attempt to inflate the damages claimed in the

underlying suit. But Hughes did not rely solely on his conversations with Edward, but

also on information from Flores and deSaulles. Accordingly, the record does not even

show Edward was the person who gave Hughes false information, let alone that he did so

intentionally because he harbored ill will or hostility toward Pennisi.

By contrast, Pennisi produced evidence sufficient to make a prima facie showing

that Nunez filed the underlying action with malice. In particular, Pennisi submitted

evidence that, if credited, would show Nunez asserted a breach of contract claim with

knowledge of its falsity. As discussed above in the context of probable cause, Nunez’s

breach of contract claim was based in part on allegations he fulfilled his contractual

obligations while Pennisi abandoned his work and refused to remedy defects. But Nunez

effectively admitted those allegations were false. Malice could be inferred from Nunez’s

knowingly false allegations. (See Albertson v. Raboff (1956) 46 Cal.2d 375, 383

[“Clearly a person who attempts to establish a claim . . . knowing of its falsity can only

be motivated by an improper purpose.”]; Ross v. Kish (2006) 145 Cal.App.4th 188, 204

[“ ‘[M]alice may still be inferred when a party knowingly brings an action without

probable cause.’ ”].)

17

Moreover, there was some evidence that, if credited, would show the underlying

lawsuit was filed for some purpose other than to secure relief. Nunez admitted at trial to

taking the Pioneer to Southern California with the belief that the refrigeration system was

working properly without paying Pennisi in full or informing Pennisi of his plans to

leave. And Pioneer crew member Dennis Leudesiaire testified that, upon deciding to go

to Southern California, Nunez “said F [Pennisi], . . . he ain’t going to get his money.” A

jury could infer from that evidence that the underlying lawsuit was brought to avoid

paying the balance due on the contract. Indeed, that is precisely what the trial court in the

malicious prosecution action concluded, saying “the Nunezes’ motive in bringing this

action appeared to have been based on the old adage, ‘The best defense is a good

offense,’ in order to avoid an action by Pennisi to recover amounts of money owed to

him.”

In sum, we conclude Pennisi has shown that his malicious prosecution action

against Nunez has, at least, minimal merit. However, Pennisi has not established even

minimal merit in his claim against Edward. And Grazia has not established her claim has

the requisite minimal merit against either Nunez or Edward.

E. Attorney Fees

The Nunezes also appeal the attorney fees awarded to the Pennisis under section

425.16, subdivision (c)(1). That provision states, in relevant part: “If the court finds that

a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the

court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the

motion, pursuant to Section 128.5.” (§ 425.16, subd. (c)(1).) Section 128.5, subdivision

(a) authorizes a trial court to “order a party, the party’s attorney, or both to pay any

reasonable expenses, including attorney’s fees, incurred by another party as a result of

bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary

delay.” Subdivision (b)(2) of section 128.5 defines “frivolous” as “totally and completely

without merit or for the sole purpose of harassing an opposing party.” “A motion is

18

totally and completely without merit for purposes of a finding of frivolousness under

section 425.16, subdivision (c)(1) or section 128.5 only if any reasonable attorney would

agree that the motion is [objectively] totally devoid of merit.” (Chitsazzadeh v. Kramer

& Kaslow (2011) 199 Cal.App.4th 676, 683-684 (Chitsazzadeh).) Section 128.5,

subdivision (c) requires that an order imposing attorney fees be in writing and “recite in

detail the conduct or circumstances justifying the order.” “We review a finding under

section 425.16, subdivision (c)(1) that a special motion to strike was frivolous or solely

intended to cause unnecessary delay for abuse of discretion.” (Chitsazzadeh, supra, at p.

684.)

The Nunezes contend the trial court committed reversible error by failing to recite

in detail in its order awarding attorney fees “the conduct or circumstances justifying the

order,” as required by section 128.5, subdivision (c). As other courts have recognized, by

authorizing an award of attorney fees and costs pursuant to section 128.5, section 425.16,

subdivision (c)(1) “incorporates the substantive and procedural requirements of section

128.5.” (Chitsazzadeh, supra, 199 Cal.App.4th at p. 683; Decker v. U.D. Registry, Inc.

(2003) 105 Cal.App.4th 1382, 1392 [“the reference to section 128.5 in section 425.16,

subdivision (c) means a court must use the procedures and apply the substantive

standards of section 128.5 in deciding whether to award attorney fees under the anti-

SLAPP statute”], superseded by statute on other grounds, as stated in Hall v. Time

Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.) Therefore, the court was required to

specify in its written order the reasons for the award of attorney fees. Because the order

contained no justification for the fees, it “must be reversed with directions to either

specify the reasons for the award or deny sanctions.” (Chitsazzadeh, supra, at p. 685;

accord Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 682-683.)

III. DISPOSITION

The order denying the Nunezes’ anti-SLAPP motion is reversed and the matter is

remanded. On remand, the trial court is ordered to enter a new order (1) denying the anti-

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SLAPP motion as to Giuseppe Pennisi’s malicious prosecution claim against Joseph

Nunez, (2) granting the anti-SLAPP motion as to Giuseppe Pennisi’s malicious

prosecution claim against Edward Nunez, and (3) granting the anti-SLAPP motion as to

Grazia Pennisi’s malicious prosecution claim against both Joseph and Edward Nunez.

The order awarding attorney fees to the Pennisis also is reversed. On remand, the trial

court is directed to either enter a new sanctions order in accordance with Code of Civil

Procedure sections 425.16, subdivision (c) and 128.5, subdivision (c) or, in the

alternative, deny sanctions. The parties shall bear their own costs on appeal.

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Walsh, J.*

WE CONCUR:

Rushing, P.J.

Elia, J.

Nunez et al. v. Pennisi et al.

H039910

*

Judge of the Santa Clara County Superior Court assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

Trial Court: Santa Cruz County Superior Court

Superior Court No. CISCV176366

Trial Judge: Hon. Robert B. Atack

Counsel for Appellants/Defendants: Horan Lloyd

Joseph Nunez James J. Cook

Edward Nunez Bianca Karim

Jennifer Pavlet

Counsel for Respondents/Plaintiffs: Law Office of David M. Hollingsworth

Giuseppe Giovanni Pennisi David M. Hollingsworth

Grazia Pennisi

Nunez et al. v. Pennisi et al.

H039910