The opinion
Filed 4/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
REZA BIDARI et al., B313073
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC602949)
v.
AHANG ZARIN KELK,
Defendant and Respondent.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Huey P. Cotton, Judge. Affirmed.
Miller Barondess, Christopher D. Beatty, Minh-Van T. Do,
and Eleanor S. Ruth for Plaintiffs and Appellants.
KP Law and Zareh A. Jaltorossian for Defendant and
Respondent.
Yousseff Mikhail and Reza Bidari (Reza)1 appeal from
a judgment dismissing their lawsuit against Ahang Zarin
Kelk following Kelk’s successful motion for judgment on the
pleadings on the sole claim in the operative complaint, malicious
prosecution. The operative complaint alleges that Kelk falsely
reported to law enforcement that Mikhail and Reza had attacked
her, that police arrested Mikhail on this basis, and that Mikhail
had to post bail to be released. It further alleges that Kelk’s false
reports led to a law enforcement investigation, at the conclusion
of which the district attorney declined to press charges. The trial
court concluded that the operative complaint does not sufficiently
allege a malicious prosecution claim because such a claim
requires an adjudicative proceeding. The court further denied
Mikhail and Reza leave to amend.
On appeal, Mikhail and Reza challenge the court’s
reliance on Van Audenhove v. Perry (2017) 11 Cal.App.5th 915
(Van Audenhove), apparently the only published Court of Appeal
decision to expressly hold that a warrantless arrest cannot
alone support a malicious prosecution claim. They argue
that the case is wrongly decided and distinguishable, and that
the trial court’s ruling finds no support in the broader body of
malicious prosecution law. They further challenge the court’s
order denying them leave to amend to either address any
deficiencies in the malicious prosecution claim by adding factual
allegations, or to add new claims based on the facts already
alleged, including several claims Mikhail and Reza had
voluntarily dismissed without prejudice earlier in the litigation.
1 Because this appeal requires us to refer to both Reza
Bidari and his father, Taimoor Bidari, we refer to them by their
first names. No disrespect is thereby intended.
2
The parties also dispute whether Reza has standing to appeal,
and whether there are fatal deficiencies in the notice of appeal
that deprive this court of jurisdiction to hear the appeal.
We conclude that Reza has standing to appeal and construe
the notice of appeal to include Mikhail as an appellant. As to the
merits, we agree with Van Audenhove, and agree with the court
below that, under Van Audenhove, the operative complaint is
fatally defective. The proposed factual allegations Mikhail and
Reza proffer they could allege if given leave to amend would not
address the deficiency in the only cause of action alleged in the
complaint. Further, Mikhail and Reza are not entitled to amend
their complaint to add causes of action they had voluntarily
dismissed earlier in the litigation because Mikhail and Reza
offered no explanation for their yearslong delay in seeking to do
so. Nor are Mikhail and Reza entitled to add an abuse of process
claim they had not previously alleged, because this claim is time-
barred and does not relate back to the sole cause of action in the
operative complaint. Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
Unless otherwise indicated, the factual background below
derives from the properly pleaded allegations in the operative
complaint and documents of which we take judicial notice.2
(Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232
2 At times, we reference information from documents
submitted in support of a summary judgment motion and thus
contained in the record on appeal, which the parties requested
the court also consider in deciding the motion for judgment on
the pleadings. At Mikhail and Reza’s request, we treat this
information as a proffer of proposed allegations Mikhail and
Reza could add, if granted leave to amend.
3
[“[W]e treat the properly pleaded allegations of [the] complaint
as true, and also consider those matters subject to judicial
notice. [Citations.] ‘Moreover, the allegations must be liberally
construed with a view to attaining substantial justice among the
parties.’ ”].)
A. Background Civil Litigation
In late 2014, Taimoor Bidari (Taimoor), Reza’s father
(see fn. 1, ante), obtained a $1.74 million judgment against
Kelk in a civil lawsuit relating to ownership of certain Malibu
property. Mikhail was not a party to that lawsuit, but is “a friend
of [Taimoor]” and was “called as a witness by [Taimoor]” in the
litigation regarding the Malibu property.
B. The Attack and Investigation
On May 5, 2015, Kelk and her cousin, Justin Langdon,
“were allegedly attacked and assaulted at Kelk’s residence.”
(Capitalization omitted.) “[T]he Los Angeles County Sheriff ’s
Department [(LASD)] Incident Report” regarding the alleged
attack reflects that “Langdon stated he could not remember
much [sic] details about the suspects[,] . . . [whom] he had never
seen . . . before,” and that Kelk stated she had been “attacked
from behind, . . . [and] never saw the suspects and could not
recognize them.” (Capitalization omitted.)
On May 15, 2015, however, Kelk and Langdon filed
two declarations with the Los Angeles County Superior Court
identifying their assailants as Mikhail and Reza, and more
specifically declaring that Mikhail had attempted to strangle
Kelk “with a rope like object” and then stabbed Langdon when
Langdon “interrupted the attack.” These declarations were filed
in support of an ex parte application Kelk submitted in the civil
4
action between Taimoor and Kelk regarding the Malibu property.
The application sought to “strike the judgment in favor of
Taimoor . . . and dismiss [the] action with prejudice based upon
the use of potentially deadly force by [Taimoor].” The court
denied the ex parte application.
Mikhail was present at the courthouse on the morning
the court heard Kelk’s ex parte application, and at that time,
“Langdon and Kelk identified [Mikhail] to [LASD] deputies
as the person who ha[d] attempted to kill them on May 5th.”
Mikhail “was arrested in the view of the public, handcuffed and
taken away from the courthouse. He was held on $1[,]000,000
bail. After posting a non-refundable bond of $100,000.00, he was
released.”
A few days later, Kelk obtained a temporary restraining
order (TRO) against Mikhail. But the trial court dismissed the
TRO when Kelk failed to appear at the hearing to prosecute the
matter.
An LASD investigation followed, and involved “numerous
interviews, [a] polygraph [test] and DNA test [of Mikhail].” The
“action” and the investigation were “initiated at the direction of
[Kelk and Langdon].” Included in the record of the trial court
and the record on appeal are documents regarding the LASD
investigation. Although we cannot properly take judicial notice of
the substance of these documents, we consider them, as Mikhail
and Reza ask us to do, as a proffer regarding the additional facts
they might plead, were they granted leave to amend. (See fn. 2,
ante.) According to Reza and Mikhail, these documents provide a
basis on which they could allege that the investigation continued
for nearly two years, and that law enforcement “obtained and
executed search warrants (authorized by Los Angeles County
5
Superior Court judges) for Mikhail’s and Reza’s phone records
and GPS locations and for Mikhail’s vehicle . . . ; assembled
photo line-ups involving Mikhail and Reza . . . ; obtained and
reviewed surveillance footage . . . ; conducted crime scene and
DNA analysis . . . ; [and] reviewed Reza’s credit card receipts
from the night of the alleged incident.” Mikhail and Reza further
proffer that, based on additional LASD reports, they could allege
the results of the investigation support that Kelk and Langdon
fabricated the attack. For example, Mikhail proposes to allege
LASD concluded Langdon’s “puncture wound” “[wa]sn’t much
more than a scratch” and was inconsistent with Langdon’s story
of the attack; that surveillance footage from the “crime scene”
confirmed no one besides Kelk entered or exited Kelk’s building
around the time of the alleged attack; that Mikhail and Reza
passed polygraph examinations; and that GPS records confirmed
that Mikhail’s cell phone was not in Malibu, the claimed location
of the attack, when the alleged crime occurred.
Mikhail and Reza also propose to allege, based on
documents in the trial court record and record on appeal, that
as the investigation was winding down, Kelk enlisted a private
investigator to record an interview with Mohammed Ordoubadi,
Reza’s former brother-in-law, in which Ordoubadi claimed
Taimoor and Mikhail solicited him to be the getaway driver
for the attempted murder of Kelk, and that the district attorney
ultimately concluded Kelk had paid Ordoubadi to offer this false
account.
The operative complaint alleges that, “after months of
investigation, . . . [the] district attorney[ ] . . . determined the
action lacked merit or if pursued would result in a decision in
favor of [Mikhail] and declined prosecution.” (Capitalization
6
omitted.) Further to this point, Mikhail and Reza proffer
that, based on a “Los Angeles County district attorney charge
evaluation worksheet” (boldface and capitalization omitted)
contained in the trial court record, they could allege that the
district attorney made statements indicating it chose not to
pursue charges against Mikhail because the district attorney
concluded the case against Mikhail was “not even a close call.”
Among the reasons included in the document was that “the
crime scene appeared staged. . . . [T]he blood spatter or droplets
in the purported crime scene were as if the injured person,
here [Langdon] who claimed to have been stabbed in the arm,
apparently intentionally allowed himself to bleed in a way
aimed at being later able to claim he [bled at] the scene. There
appeared to be no effort to hold the wound or cover it in any way.
This was abnormal and immediately seen as unusual.” Other
reasons noted in the document included that “[t]he only ID is
a voice ID by an extremely biased witness/victim with a long
history with the family of the alleged assailants”; “[t]here is
no helpful video, finger print, trace or DNA evidence”; and that
Kelk’s ex-husband told detectives that he paid Ordoubadi to lie,
at Kelk’s direction, and that he believes Kelk “made up” the story
about the attack because “she was simply angry about losing the
Malibu condominium following the court[’s] order[ ]” in the civil
lawsuit.
7
C. The Instant Lawsuit
In December 2015, Mikhail and Reza filed suit against
Kelk and Langdon3 alleging claims for libel per se and
intentional infliction of emotional distress (IIED) based on the
declarations Kelk submitted and statements she and her counsel
made before the court in connection with the civil ex parte
request. They also alleged a claim for malicious prosecution
based on Kelk directing sheriff ’s deputies to publicly arrest
Mikhail and the resulting bail bond and LASD investigation.
Kelk demurred to the original complaint, which the
court overruled. In so doing, the court rejected the arguments
that the litigation privilege barred the IIED and libel claims,
that the complaint failed to sufficiently allege a “prosecution”
that could give rise to a malicious prosecution claim, and that
the complaint failed to allege a “prosecution” that terminated
in Mikhail’s favor.
In May 2015, Mikhail and Reza filed a first amended
complaint, now the operative complaint in the action, adding
claims against Kelk for defamation, IIED, and negligence,
based on Kelk allegedly telling three individuals that Mikhail
“attempted to kill her.” The first amended complaint does not
allege who these individuals are or the context in which Kelk
made these statements to them.
Kelk moved to strike the first amended complaint as
a strategic lawsuit against public participation (SLAPP) under
Code of Civil Procedure section 425.16 (the anti-SLAPP statute).
The court denied the motion. Although the court concluded that
3 Mikhail and Reza were unable to serve Langdon, who
lived abroad, and they eventually dismissed him as a defendant
without prejudice. Langdon is not a respondent in this appeal.
8
several of the causes of action involved protected activity, it
further concluded Mikhail and Reza had made a prima facie
showing as to the merits of those causes of action, including
the malicious prosecution cause of action.4
Thereafter, the case was reassigned to a different judicial
officer in the Van Nuys courthouse.
In July 2020, plaintiffs voluntarily dismissed without
prejudice the claims against Kelk for libel per se, IIED,
defamation, and negligence, leaving only the malicious
prosecution claim.
D. Motions for Summary Judgment and Judgment
on the Pleadings Regarding the Malicious
Prosecution Claim
Mikhail and Reza moved for summary judgment on the
claim for malicious prosecution. To support their motion, they
filed declarations, police reports, and other documents related to
the extent of the investigation and the district attorney’s decision
not to file charges.5 They also relied on the documents of which
we have taken judicial notice regarding the TRO Kelk obtained.
The court denied Mikhail and Reza’s summary judgment
motion. The court noted that, although the exhibits provided
4 The first amended complaint also alleged claims for
defamation, IIED, and negligence against Ordoubadi and a civil
conspiracy claim against Kelk and Ordoubadi. The trial court
struck those claims in response to an anti-SLAPP motion.
5 These documents are the source of the detailed
description of the investigation provided in the portion of the
factual summary above that we treat as a proffer of additional
allegations Mikhail and Reza could make, if given leave to
amend.
9
“suggest that [Kelk and Langdon] made the whole thing up,”
Mikhail and Reza had not met their burden on summary
judgment because “the actions of the police and the prosecutor
are merely investigatory and do not satisfy the prosecution
element before charges are filed.”
Following up on this ruling, Kelk moved for judgment
on the pleadings, arguing that Mikhail’s complaint failed to
state a claim for malicious prosecution because it did not allege
that Kelk initiated a criminal prosecution. The court granted
the motion. It observed that initiating a plaintiff ’s arrest and
a criminal investigation against a plaintiff—at least when,
as here, the arrest was not pursuant to a warrant obtained
in judicial proceedings—is not alone a basis for a malicious
prosecution claim, citing Van Audenhove, supra, 11 Cal.App.5th
915. More specifically, the court concluded that a warrantless
arrest and/or a criminal investigation could not satisfy the
“ ‘action’ or ‘proceeding’ ” element of a malicious prosecution
claim.
The court granted the motion “without leave [to amend]
because there is no cure for the flaw in the cause of action,” but
did not further elaborate. There is no reporter’s transcript of
the hearing to indicate whether Mikhail or Reza requested leave
to amend, nor have they represented to this court that either of
them did so.
Because the court’s order regarding the malicious
prosecution action disposed of the only remaining cause of action
in the FAC, the trial court dismissed the “entire . . . action”
and entered judgment “in favor of . . . Kelk . . . and against . . .
Mikhail and Reza,” further ordering that [Mikhail and Reza]
10
take nothing against [Kelk]” and that Kelk “shall recover
from . . . Mikhail and Reza . . . allowable costs of suit.”
E. Procedural Background Regarding Notice of
Appeal
A timely notice of appeal was filed that identified as the
filing attorney or party acting without an attorney both Reza
and Mikhail. The notice also identified both Reza and Mikhail
as the “plaintiff [s]/ petitioner[s]” (capitalization omitted), but
listed only Reza as the appealing party. The notice indicated it
was appealing a “[j]udgment after court trial,” dated April 14,
2021. The judgment of dismissal was actually entered on
May 12, 2021 and was not after a court trial; the order granting
the motion for judgment on the pleadings was dated April 14,
2021.
This court initially dismissed the appeal initiated by this
notice for failure to pay the requisite fees and comply with rules
regarding the record on appeal. Reza and Mikhail, through
newly-engaged counsel, filed a motion to vacate the dismissal.
Kelk opposed the motion to vacate the dismissal, arguing that
dismissal was also proper because Mikhail had not signed the
notice of appeal, and because that notice identified an incorrect
date for the judgment.
In response, Mikhail and Reza provided declarations
attesting to Mikhail having filed a separate notice of appeal as
well, which he signed, “on the same day at about the same time”
as the notice signed by Reza, and claiming that Mikhail “[did] not
know why th[is] court’s docket does not reflect [his] notice of
appeal.” (Capitalization omitted.) Mikhail claimed he and Reza
did not become aware that his notice of appeal had not actually
been filed with the court until the dismissal proceedings before
11
this court. The declaration attached a nonconformed notice of
appeal signed by Mikhail and identifying him as the appealing
party.
This court vacated the dismissal and reinstated the appeal.
“The determination of whether . . . Mikhail timely filed a notice of
appeal [was] deferred to the panel . . . that will hear the appeal.”
Accordingly, we address the issue below.
DISCUSSION
On appeal, Mikhail and Reza argue that the court erred
in granting the motion for judgment on the pleadings, and that
they should be permitted to amend the first amended complaint.
Kelk disagrees, and also disputes that this court has jurisdiction
to hear the appeal, arguing that Reza lacks standing and that
Mikhail did not file a timely notice of appeal.
We conclude that Reza has standing and that, liberally
construing the timely notice of appeal filed by Reza, it permits
both Mikhail and Reza to appeal. As to the merits, we disagree
that the trial court erred and affirm the judgment and the order
denying leave to amend.
A. Reza’s Standing to Appeal
Kelk first argues that Reza lacks standing to appeal,
because the only cause of action remaining in the lawsuit at the
time the court dismissed it was the malicious prosecution claim,
in which Mikhail was the sole plaintiff. “Any party aggrieved
may appeal[,]” however. (Code Civ. Proc., § 902.) A party is
aggrieved if he or she “ ‘has an interest which appears on the
record.’ ” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises
of America (2006) 141 Cal.App.4th 46, 58.) The judgment in
this action was entered as against both Reza and Mikhail, and
12
required both to pay Kelk’s costs. In addition, although the order
granting Kelk’s motion for judgment on the pleadings that most
immediately led to the final entry of judgment involved a cause
of action in which Reza was not a named plaintiff, that order
also denied leave to amend the first amended complaint in
any manner—including any amendments to reallege causes
of action Reza had voluntarily dismissed without prejudice
and/or amendments to add Reza as a plaintiff to the malicious
prosecution cause of action. Such amendments were more
than a theoretical possibility, as the investigation on which the
malicious prosecution claim was based was focused in part on
Reza, who Kelk had also identified as one of her assailants. We
therefore conclude that Reza has an interest in the action that
appears on the record, and that he is an aggrieved party with
standing to appeal the judgment.
B. Timeliness of Mikhail’s Appeal
Mikhail and Reza argue that the notice of appeal Mikhail
signed and unsuccessfully attempted to file should be deemed a
timely notice of appeal for various reasons. We need not decide
whether they are correct, because we find persuasive Mikhail and
Reza’s alternative argument that the timely-filed notice of appeal
signed by Reza applies to Mikhail as well as Reza.
“Once a notice of appeal is timely filed, the liberal
construction requirement compels a reviewing court to evaluate
whether the notice, despite any technical defect, nonetheless
served its basic function—to provide notice of who is seeking
review of what order or judgment—so as to properly invoke
appellate jurisdiction.” (K.J. v. Los Angeles Unified School Dist.
(2020) 8 Cal.5th 875, 883 (K.J.).) Timely-filed notices of appeal
“ ‘ “are to be liberally construed so as to protect the right of
13
appeal if it is reasonably clear what [the] appellant was trying
to appeal from, and where the respondent could not possibly
have been misled or prejudiced.’’ ’ ” (Id. at p. 882; accord,
Beltram v. Appellate Department (1977) 66 Cal.App.3d 711, 714
[“once a notice is filed it is to be construed liberally in favor of
its sufficiency”].) Here, the timely-filed notice of appeal clearly
identified the judgment being appealed, included the names of
both Reza and Mikhail as the parties filing the notice, and arose
from an action that, at the time of the judgment, involved only
a claim against Mikhail alone. “[W]hen read in connection with
[this] record,” “[i]t [was] perfectly apparent from the notice . . .
that such notice was filed on behalf of [Mikhail as well].” (Chung
Sing v. Southern Pacific Co. (1918) 178 Cal. 261, 263; id. at
pp. 263–264 [that notice of appeal used “the name ‘C. A.
Burton’ . . . to designate one of the appellants [actually named
George Blackburn] was solely due to inadvertence” and thus
“the adverse party could not have been misled thereby”]; see
Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1216–1217 [“[l]iberal
construction of the notice of appeal [signed only by husband],
which does not expressly identify the name of the appealing
party, but which does identify a judgment subjecting the husband
and wife to the same award, compels our conclusion that both
[husband and wife] have appealed”].)
We therefore construe the timely-filed notice of appeal
as being filed by both Reza and Mikhail.
C. Malicious Prosecution Claim
To state a claim for malicious prosecution based on either a
civil or criminal proceeding, a plaintiff must allege “that [a] prior
action (1) was commenced by or at the direction of the defendant
and was pursued to a legal termination in his, plaintiff ’s, favor
14
[citations]; (2) was brought without probable cause [citations];
and (3) was initiated with malice.” (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 50; accord, Casa Herrera, Inc. v.
Beydoun (2004) 32 Cal.4th 336, 341 [requirements apply to
malicious prosecution claims based on civil or criminal
proceeding].) Courts have historically construed the term
“action” in this context to mean “the institution of some judicial
proceeding or legal process.” (Eustace v. Dechter (1938) 28
Cal.App.2d 706, 710.)
Mikhail and Reza argue the court incorrectly concluded
the complaint did not allege the “action” needed to support a
malicious prosecution claim, and thus erred in sustaining the
demurrer on this basis. They identify as potential “actions”
that support their malicious prosecution claim: (1) the law
enforcement investigation of Mikhail and Reza, (2) Reza’s arrest,
(3) bail bond proceedings, and (4) proceedings to obtain the
warrants needed to facilitate the investigation. The first two of
these are alleged in the first amended complaint. Mikhail and
Reza argue the final two can be inferred from the allegations in
the pleading, and/or that, if granted leave to amend, they could
explicitly allege them. We address each of these purported
“actions” in turn below.
1. Investigation
At least three Courts of Appeal have already rejected the
argument that an investigation alone can support a malicious
prosecution claim. These cases hold that “a mere investigation
which does not lead to the initiation of proceedings before an
administrative board [or court] having power to take action
adversely affecting plaintiff ’s legally protected interests is not
a sufficient basis upon which to f[ind] a malicious prosecution
15
action.” (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 58 (Imig);
accord, Brody v. Montalbano (1978) 87 Cal.App.3d 725, 736–737
(Brody) [hearing to which plaintiff subjected “was a prelude to
the possibility of administrative action of a more formal nature”
and “terminated . . . without action adverse to [plaintiff]” so it
could not provide the basis for a malicious prosecution claim];
Ferraris v. Levy (1963) 223 Cal.App.2d 408, 412 [“summarily
disposing of malicious prosecution claims based on allegations
that the defendants caused plaintiff to be investigated by
the district attorney and the postmaster” who “refused to
institute any proceedings against the plaintiff ” because it is
“well[-]settled” that “criminal proceedings are not instituted
unless and until the warrant or summons is issued”].) These
cases acknowledge that although a plaintiff may be “put to a
certain amount of inconvenience to persuade the department [or
other prosecuting body] that the charges [being contemplated]
[are] unfounded” (Imig, supra, at p. 59), such injury “is not
itself sufficient to justify a malicious prosecution action” if the
authorities did not initiate proceedings against the plaintiff.
(Ibid.)
Mikhail and Reza cite dictum in Imig that suggests an
investigatory action might support a malicious prosecution
claim under circumstances not present in that case. (See Imig,
supra, 70 Cal.App.3d at p. 60 [“Sometimes, however, the invasion
of the plaintiff ’s legally protected interest occurs without a
formal hearing, and it is the plaintiff who initiates the formal
proceedings in order to secure reinstatement of his position or
license. In such cases a malicious prosecution action may lie.”].)
We do not find this dictum persuasive. The two cases Imig
cites in making this observation are likewise unpersuasive: One
16
is a federal case, and the other involved both an investigation
and administrative proceedings. (See ibid., citing Hardy v.
Vial (1957) 48 Cal.2d 577, 580 (Hardy) [malicious prosecution
claim based on complaint and resulting hearing at which
“State Personnel Board found that the charges [based on which
plaintiff was dismissed as a professor] were untrue and . . . [t]he
board . . . ordered defendant . . . to return plaintiff to his position
at the college”] & Melvin v. Pence (D.C. Cir. 1942) 130 F.2d 423,
424–425.) We thus need not consider whether anything like the
hypothetical circumstances referenced in Imig are present here.
Mikhail and Reza also argue these cases should not bar
their malicious prosecution claim—or, in the alternative, do not
support denying leave to amend it—because the burdensome
nature of the investigation they have or could allege renders
these cases inapplicable. But Imig recognizes that a maliciously
instigated investigation may burden the subject thereof, and
nevertheless concludes such an investigation cannot constitute
an “action” or “proceeding” supporting a malicious prosecution
claim. (Imig, supra, 70 Cal.App.3d at pp. 58–59.) The extent
of the alleged investigation is thus not a basis on which to
distinguish these cases.
2. Warrantless Arrest
Van Audenhove, supra, 11 Cal.App.5th 915 holds
that a warrantless arrest—or any other event lacking “some
adjudicatory involvement by a court”—cannot constitute an
“action” for purposes of malicious prosecution. (Id. at p. 925.)
Mikhail and Reza argue that Van Audenhove is wrongly decided
and distinguishable from the facts alleged here. We disagree as
to both points.
17
a. Van Audenhove’s reasoning is persuasive
We find the reasoning in Van Audenhove persuasive and
therefore summarize the case in some detail. In Van Audenhove,
the malicious prosecution plaintiff and the defendant were
neighbors. (Van Audenhove, supra, 11 Cal.App.5th at p. 917.)
The sheriff ’s department arrested the plaintiff based on the
defendant’s false accusations that the plaintiff stalked him and
his wife. (Ibid.) Police took the plaintiff to jail and released him
the next day; two months later the district attorney declined
to bring a case, concluding “ ‘ “[t]his is a neighbor dispute[,] not
a stalking.” ’ ” (Ibid.) The trial court dismissed the complaint for
lack of a judicial proceeding or action underlying the malicious
prosecution claim. On appeal, plaintiff argued that “ ‘[a]ll that
is required in actions for malicious prosecution against private
persons is that the defendant has sought out the police or
prosecutorial authorities and falsely reported facts indicating
that [the] plaintiff has committed a crime.’ ” (Id. at p. 918.)
The Court of Appeal in Van Audenhove disagreed. In
so doing, it relied in large part on two Supreme Court cases
discussing the intersection between false arrest and malicious
prosecution: Asgari v. City of Los Angeles (1997) 15 Cal.4th
744 (Asgari) and Singleton v. Perry (1955) 45 Cal.2d 489
(Singleton). (Van Audenhove, supra, 11 Cal.App.5th at
pp. 920-921.) In that context, Singleton held that “ ‘ “[n]o one
can recover damages for a legal arrest and conviction; therefore,
in cases of malicious prosecution it becomes necessary to await
the final determination of the action. But the same principle
does not apply to an action for false imprisonment, as the form
of action is based upon an illegal arrest and no matter ex post
facto can legalize an act which was illegal at the time it was done.
18
From this it will be seen that one of the essential elements of
a complaint for malicious prosecution is that the proceeding
upon which it is based has finally terminated in favor of the
plaintiff.” ’ ” (Singleton, supra, at pp. 494–495, italics omitted.)
Van Audenhove interpreted this language as reflecting a
general principle that, “when there is a legal arrest, the arrestee
does not yet have a cause of action for . . . malicious prosecution”
(Van Audenhove, supra, at p. 920) and that it is only through
some adjudicative proceeding before a court that “the arrestee’s
cause of action for malicious prosecution becomes ripe, and the
damages available relate back to the arrest.” (Ibid.)
Van Audenhove found further support for this principle in
Asgari, which implicitly treated arraignment as the earliest point
at which a malicious prosecution claim becomes ripe. (Asgari,
supra, 15 Cal.4th at pp. 748, 752–759; see Van Audenhove,
supra, 11 Cal.App.5th at p. 921; accord, County of Los Angeles v.
Superior Court (2000) 78 Cal.App.4th 212, 221 [under Asgari
“malicious prosecution begins . . . [at] the point at which the
[plaintiff] is arraigned”].) Combining Singleton’s conclusion that
a lawful arrest cannot alone support a malicious prosecution
claim and Asgari’s conclusion that a malicious prosecution claim
only ripens at the arraignment stage—which, when an individual
is arrested without a warrant, is the first adjudicative proceeding
and the first involvement of the court6—Van Audenhove
6 Van Audenhove did not have occasion to determine
whether obtaining an arrest warrant could supply sufficient
adjudicative involvement of the court to support a malicious
prosecution claim, although the opinion suggests that it might.
The facts of this case do not present this issue. We therefore
decline to comment on the dictum in Van Audenhove on this
issue.
19
concludes that “some adjudicatory involvement by a court” is
necessary to satisfy the “action” or “proceeding” element of a
malicious prosecution claim (Van Audenhove, supra, at p. 925),
and more specifically that a warrantless arrest alone cannot
satisfy that element. (Id. at pp. 920–921; see id. at p. 924
[“[I]t turns on whether a court gets involved. . . . [Citation.] . . .
After charges are filed, the actions of the court are fully
adjudicatory.”].)
Van Audenhove acknowledges, as do we, that the
Restatement Second of Torts reaches the opposite conclusion
(Van Audenhove, supra, 11 Cal.App.5th at p. 923): It provides
that, for the purposes of a malicious prosecution action, one
of the ways criminal proceedings can be instituted is when a
person “is lawfully arrested on a criminal charge.” (Rest.2d
Torts, § 654. subd. (2)(c); see also id., com. e [“[a lawful] arrest
is . . . an initial step in a criminal proceeding; and if it is made
or instigated without probable cause, the remedy is by an
action for malicious prosecution”].) Van Audenhove rejects
the Restatement approach as unpersuasive, noting that the
Restatement cites no case law to support its approach, and
instead relies on the authors’ conclusion as to what is equitable;
if a malicious prosecution claim is not recognized, someone
wronged by an arrest maliciously caused by a private individual
would be left with no legal recourse. (Van Audenhove, supra, at
p. 923.) Van Audenhove notes that there are numerous areas in
which, in the interest of serving some larger public policy goal,
the law leaves a wrong without a remedy, and that permitting
harm from a maliciously procured arrest to go unremedied
serves the larger public policy purpose of “promot[ing] free and
uninhibited reports to the police.” (Id. at p. 924.) Van Audenhove
20
thus rejects such a lack of remedy as a basis for deeming a
warrantless arrest an “action” supporting a malicious prosecution
claim. (Ibid.)
b. Mikhail and Reza’s arguments that
Van Audenhove was wrongly decided
are unpersuasive
Mikhail and Reza argue that Van Audenhove got it
wrong. First, they argue its holding is inconsistent with the
general judicial trend of expanding the definition of “action”
for purposes of malicious prosecution, noting that courts
have expanded that definition to encompass the filing of
a cross-complaint (Bertero, supra, 13 Cal.3d at pp. 51–52),
prosecuting a portion of or a single cause of action within
an otherwise legitimate lawsuit (Area 55, LLC v. Nicholas
& Tomasevic, LLP (2021) 61 Cal.App.5th 136, 153–154),
“continuing” to prosecute a complaint where it lacks probable
cause (Zamos v. Stroud (2004) 32 Cal.4th 958, 970), a will
contest (Crowley v. Katleman (1994) 8 Cal.4th 666, 692),
an administrative proceeding (Hardy, supra, 48 Cal.2d at
pp. 580–582), a postjudgment order to show cause proceeding
(Chauncey v. Niems (1986) 182 Cal.App.3d 967, 976), and a
writ of attachment (Campbell v. White (1962) 199 Cal.App.2d
382, 384). But Van Audenhove acknowledged that courts have
extended the definition of “action” to encompass several actions
beyond bringing criminal charges or filing a civil lawsuit, yet
it concluded—correctly—that an arrest still does not fit
within these expanded definitions. (Van Audenhove, supra,
11 Cal.App.5th at p. 920.) Moreover, each of these examples
involves adjudicative proceedings assessing criminal or civil
responsibility. Warrantless arrest, by contrast, is a precursor to
21
such adjudication and the involvement of an adjudicative body.
It thus does not logically follow from these examples that the
definition of “action” should be further expanded to encompass
a warrantless arrest.
Second, Mikhail and Reza argue that Van Audenhove’s
reasoning is “contrary to our Supreme Court’s rulings.” They
claim Van Audenhove “relies . . . on a misreading of Singleton,”
citing a single sentence in that opinion: “Malicious prosecution
is procuring the arrest or prosecution of another under lawful
process, but from malicious motives and without probable cause.”
(Singleton, supra, 45 Cal.2d at p. 494.) Read in context, however,
this phrasing does not support the larger conclusion that an
arrest is alone a sufficient basis for a malicious prosecution claim,
something that the California Supreme Court subsequently
confirmed by holding in Asgari that “ ‘[m]alicious prosecution
“consists of initiating or procuring the arrest and prosecution of
another under lawful process, but from malicious motives and
without probable cause.” ’ ” (Asgari, supra, 15 Cal.4th at p. 757,
italics added & omitted.) Mikhail and Reza further argue that
Van Audenhove incorrectly relied on Asgari, because it reflects
a rule that “pertains to a context that is not present here—
the scope of damages for a public employee who has statutory
immunity for malicious prosecution.” This argument is referring
to the fact that Asgari discussed the intersection between
malicious prosecution and false imprisonment for the purpose of
determining to what extent the defendants, two police officers
and a police department, could take advantage of a statute
granting law enforcement immunity from suit for malicious
prosecution, but not false imprisonment claims. (Asgari, supra,
15 Cal.4th at p. 757, citing Gov. Code, §§ 820.4, 821.6.) But the
22
proposition for which Van Audenhove relied on Asgari is not
tied to any particular type of defendant or factual scenario.
The elements of a malicious prosecution claim do not change
depending on whether the defendant is a private citizen or a
police officer who is immune to suit for malicious prosecution.
Thus, our Supreme Court’s conclusion regarding the boundaries
of a malicious prosecution claim for the purposes of assessing
whether a public entity defendant is immune thereto applies
equally in cases involving other types of defendants as well. (See
Van Audenhove, supra, 11 Cal.App.5th at p. 921 [“Admittedly,
both County of Los Angeles and Asgari involved an unlawful
arrest by public entity defendants. . . . Nevertheless, . . . they
manifest the general understanding that an arrest alone is not
malicious prosecution,” italics omitted].)
Third and finally, Mikhail and Reza argue that
Van Audenhove’s basis for rejecting the Restatement approach
is no longer valid for various reasons. They argue that, since the
Restatement was written, courts in other states have recognized
arrest as a basis for a malicious prosecution claim. But it
remains true that no California cases have done so. To the
contrary, as outlined above, our Supreme Court cases suggest
an opposite approach by California courts. Mikhail and Reza also
note that the California Supreme Court has cited with approval
other aspects of the Restatement Second of Torts regarding
malicious prosecution. But the Supreme Court is, of course, free
to adopt only selected portions of the Restatement. Mikhail and
Reza also characterize Van Audenhove as having “mist[aken]
the Legislature’s and the Supreme Court’s policy priorities” when
it concluded that leaving an individual who has been subject
to a maliciously procured arrest without a remedy is acceptable
23
in the interest of larger public policy goals. They argue that
a recent change in law that adds the making of an intentionally
false police report as an exception to the litigation privilege
shows that the Legislature has prioritized a right of redress
for an individual injured by false police reports over the larger
public policy goal of preserving open communication with law
enforcement. (See Civ. Code, § 47, subd. (b)(5) [“[t]his subdivision
does not make privileged any communication between a person
and a law enforcement agency in which the person makes a
false report that another person has committed . . . knowing
that the report is false, or with reckless disregard for the
truth or falsity of the report”]; Stats. 2020, ch. 327, § 2 [adding
subdivision (b)(5) to Civ. Code, § 47, eff. Jan. 1, 2021].) On this
basis, they question the viability of Van Audenhove’s citation
to that policy goal as a basis for accepting that an individual
harmed by a maliciously procured arrest may not have a
remedy. We disagree that this change in law provides a basis
for questioning Van Audenhove’s analysis. To the contrary,
this development moots the equitable concerns the Restatement
cited as a basis for its proposed approach. At the time the
Restatement was written, malicious prosecution was the only
theory of recovery for a plaintiff injured by a private citizen
maliciously procuring the plaintiff ’s arrest, because the litigation
privilege at the time protected statements made to police officers
to report suspected criminal activity (see, e.g., Hagberg v.
California Federal Bank (2004) 32 Cal.4th 350, 355) and applied
to all torts except for malicious prosecution. (Edwards v. Centex
Real Estate Corp. (1997) 53 Cal.App.4th 15, 29.) Thus, unless
the Restatement permitted recovery via a malicious prosecution
claim, such a plaintiff would be left without a remedy. Under the
24
post-2020 version of Civil Code section 47, however, the litigation
privilege no longer prevents such a plaintiff from suing for other
torts, such as intentional infliction of emotional distress. Thus,
the Restatement approach to malicious prosecution claims is no
longer the only way to assure that injury does not go without a
remedy at law.
For these reasons, we decline Mikhail and Reza’s invitation
to disagree with Van Audenhove, and instead conclude that its
reasoning and holding remain sound.7
c. Van Audenhove is not factually
distinguishable
We likewise find unpersuasive Mikhail and Reza’s
arguments that Van Audenhove “must be confined to its facts,”
which they characterize as involving no “substantial financial
expenditure by the unjustly accused” as a result of the challenged
conduct and no bail proceeding or investigation involving
7 Mikhail and Reza also argue that the demurrer and
anti-SLAPP motion rulings earlier in the case expressly recognize
causing an arrest and investigation can provide a basis for a
malicious prosecution claim, and that the judicial officer to whom
the case was later assigned was thus not permitted to reach
an opposite conclusion on this issue in deciding the motion for
judgment on the pleadings. The court, however, was not bound
by the prior rulings, and had the authority to make different
rulings at any time prior to the entry of judgment. (Chui v. Chui
(2022) 75 Cal.App.5th 873, 888, fn. 17; Darling, Hall & Rae v.
Kritt (1999) 75 Cal.App.4th 1148, 1156.) Moreover, our review of
the judgment and order granting the motion for judgment on the
pleadings is de novo. We thus need only consider whether the
ruling on appeal is correct, not whether the rulings below were
generally consistent with each other as to this issue.
25
warrants. But the extent of the damages Mikhail and Reza
allege they suffered as a result of the challenged conduct has no
bearing on whether that conduct meets the definition of “action”
or “proceeding” under the applicable case law. And, for the
reasons we discuss below, neither bail nor warrant proceedings
can support a malicious prosecution claim. Van Audenhove is
thus factually distinguishable.
3. Bail Proceeding and Search Warrant
Proceeding
Mikhail and Reza also argue that the court’s analysis
took an overly restrictive view of the complaint, and did not
consider that, taking all reasonable inferences from the
complaint’s allegations, it alleged not only a warrantless arrest
and investigation, but judicial bail proceedings. Similarly,
in arguing for leave to amend, Mikhail and Reza claim they
could allege that the investigation necessarily involved judicial
proceedings through which law enforcement obtained warrants.
Even assuming they are correct that a bail hearing or a
proceeding to obtain a search warrant constitutes a “proceeding”
for purposes of malicious prosecution, these are acts that cannot
be terminated in favor of a malicious prosecution plaintiff in
the manner required to support a malicious prosecution cause
of action. A bail hearing does not assess or depend on criminal
culpability. (See Pen. Code, § 1275, subd. (a)(1) [“[i]n setting,
reducing, or denying bail, a judge or magistrate shall take into
consideration the protection of the public, the seriousness of the
offense charged, the previous criminal record of the defendant,
and the probability of his or her appearing at trial or at a hearing
of the case”].) And the proceeding in which law enforcement
obtains a search warrant necessarily terminates unfavorably for
26
that individual, in that the court is permitting an invasion of the
individual’s privacy and otherwise protected legal rights. Even
if the evidence supporting the finding of probable cause upon
which the court issued a search warrant is later revealed to
be fabricated, this does not render the outcome of the warrant
proceeding favorable to the subject of the warrant. Thus, to the
extent Mikhail and Reza argue the malicious prosecution claim
was or could be based on a bail hearing or a proceeding in which
a search warrant was obtained, such a claim still fails because
Mikhail and Reza cannot allege that these “actions” were
terminated in Reza and/or Mikhail’s favor.
Having considered and rejected all the possible bases on
which Mikhail and Reza argue they have alleged or could allege
an “action” or “proceeding” sufficient to support their malicious
prosecution claim, we conclude the trial court correctly sustained
the demurrer to the first amended complaint. We further
conclude that Mikhail and Reza have not identified any way in
which they could have amended the malicious prosecution cause
of action to avoid the fatal deficiencies on which the court based
its demurrer ruling.8
8 Kelk argues that Mikhail and Reza have not established
that they requested leave to amend below, and that we therefore
need not consider this request now. “ ‘When any court makes an
order sustaining a demurrer without leave to amend the question
whether or not such court abused its discretion in making such
an order is open on appeal even though no request to amend
such pleading was made.’ [(Code of Civ. Proc., § 472c, subd. (a).)]
Thus, despite [an] appellant’s failure to attempt amendment
in the trial court, [an] appellant is entitled by statute to argue
here that leave to amend should have been granted.” (Kolani v.
27
D. Additional Proposed Claims
Mikhail and Reza next argue that they should have been
granted leave to amend the first amended complaint to reassert
the causes of action for IIED, defamation, and negligence that
they had previously dismissed without prejudice, and/or to assert
a new claim for abuse of process.
As to the argument that the court erred in denying leave
to amend to add an abuse of process claim based on statements
made in connection with Kelk’s filing of the ex parte application
in the civil suit between Taimoor and Kelk, we conclude that
amendment would be futile, as it is barred by the applicable one-
year statute of limitations. (See Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857, 886–887 [“Because abuse of process is
an injury to the person, the statute of limitations . . . is one year.
(Code Civ. Proc., § 340, subd. (3).)”].) Although such a claim
would not be time-barred if it relates back to the operative
complaint, the relation-back doctrine requires that the proposed
amendment “(1) rest on the same general set of facts, (2) involve
the same injury, and (3) refer to the same instrumentality, as the
Gluska (1998) 64 Cal.App.4th 402, 410–411 (Kolani), italics
omitted.) This same approach applies to an order granting a
motion for judgment on the pleadings without leave to amend.
(See Sheppard v. North Orange County Regional Occupational
Program (2010) 191 Cal.App.4th 289, 296–297 [“[a] judgment
on the pleadings and a judgment following the sustaining of
a demurrer are reviewed under the same de novo standard”];
Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th
1848, 1852 [“[i]n the case of either a demurrer or a motion for
judgment on the pleadings, leave to amend should be granted if
there is any reasonable possibility that the plaintiff can state a
good cause of action”].)
28
original [complaint].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 408-409, italics omitted.) Applying these requirements
here, the abuse of process claim does not relate back to the
only existing claim in the operative complaint—the malicious
prosecution claim—because the malicious prosecution claim is
based on entirely different instrumentalities causing the alleged
injury (the investigation, arrest, and bail hearing), and at least
a partially different injury (the emotional distress, stress, and
invasion of privacy resulting from the investigation and arrest,
as well as the monetary loss from posting bail). (See ibid.)
Finally, Mikhail and Reza argue they should be allowed
leave to reallege the IIED, negligence, and defamation causes
of action Mikhail and Reza voluntarily dismissed years ago.
“Leave to amend may be denied if there is prejudice to the
opposing party, such as delay in trial, loss of critical evidence,
or added costs of preparation.” (Kolani, supra, 64 Cal.App.4th
at p. 413.) “There is [also] a platoon of authority to the effect
that a long unexcused delay is sufficient to uphold a trial judge’s
decision to deny the opportunity to amend pleadings.” (Green v.
Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th
686, 692.) In arguing they should be allowed leave to revive their
previously discarded claims, Mikhail and Reza rely on Hirsa v.
Superior Court (1981) 118 Cal.App.3d 486. But in that case, the
plaintiff had been diligent in seeking a non-dilatory amendment.
(Id. at p. 490.) Here, by contrast, far from diligently pursuing
these causes of action, Mikhail and Reza abandoned them and
only proposed to reallege them at the last possible moment when
the lawsuit might otherwise be entirely concluded. They offer
no explanation for their delay in reasserting these causes of
action. In the absence of an explanation, this timing smacks
29
of gamesmanship. (See Green, supra, 28 Cal.App.4th at
pp. 693-694 [“[g]iven lack of any excuse for not pleading the
defense earlier—the decision not to plead negligence was legal
gamesmanship in its purest sense—we cannot say the trial
court abused its discretion in denying the request to amend,”
fn. omitted].) We stress that Mikhail and Reza are not seeking
to assert new legal theories that they did not think to allege
initially, but rather theories of which Mikhail and Reza have long
been well aware, actively pursued for years, and then abandoned,
thereby steering the litigation away from those theories. Mikhail
and Reza seek now to again reset the course of the litigation,
without explanation. Were we to permit them to do so, we would
be rewarding an inefficient and piecemeal approach to litigation,
through which Mikhail and Reza were able to spare themselves
the time and expense of continuing to pursue these claims until
Mikhail and Reza again viewed the claims as advantageous. We
acknowledge that, as the dissent points out, this does not rise to
the level of the gamesmanship present in Green. But it smacks of
gamesmanship nonetheless.
Mikhail and Reza’s arguments focus on a purported lack
of prejudice and delay from permitting the amendments. They
argue that there would be no prejudice from permitting them to
revive these claims, because doing so only adds legal theories of
recovery to facts already alleged in the first amended complaint,
and because these legal theories were part of the litigation for
years, during which time Kelk was free to seek discovery related
to them and otherwise develop defenses thereto. They further
argue that permitting amendment would not cause delay,
because these causes of action have already survived demurrers
and anti-SLAPP motions, which might otherwise be brought
30
immediately following amendment. Nevertheless, it is inherently
inefficient to permit a plaintiff to hold partially litigated claims
waiting in the wings until the plaintiff deems it strategically
convenient to resurrect them. Such inefficiency will inevitably
cause some delay.
Mikhail and Reza have thus failed to demonstrate that
they should have been granted leave to add any of the proposed
causes of action.9
9 Because we conclude above, based on non-statute-of-
limitations grounds, that Mikhail and Reza should not have been
granted leave to reallege the IIED, negligence, and defamation
causes of action, we need not assess whether these causes of
action are time-barred. We note, however, that any cause of
action alleging injury from some act other than Kelk’s reporting
the alleged attack to law enforcement would most likely be
time-barred for the same reasons the abuse of process claim is
time-barred.
31
DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
I concur:
CHANEY, J.
32
BENDIX, J., Concurring and Dissenting.
I agree with my colleagues’ recitation of the facts and
concur with their conclusion that the trial court did not err in
granting respondent Ahang Zarin Kelk’s motion for judgment on
the pleadings as to appellants’, Yousseff Mikhail’s, and Reza
Bidari’s, malicious prosecution claim. (Van Audenhove v. Perry
(2017) 11 Cal.App.5th 915.) I also agree with my colleagues’
conclusion not to grant appellants’ request for leave to add an
entirely new claim, one for abuse of process, or leave to amend
their malicious prosecution claim where Van Audenhove is fatal
to that claim.
Where I part company with my colleagues is in their
refusal to grant appellants leave to add previously dismissed
claims based on the inference of “gamesmanship” the majority
draws merely from appellants’ failure to explain why they did not
seek such leave below. There is also no support in the record for
the majority’s finding of prejudice other than that the case would
not be over. The majority’s principal case authority does not
support either of these findings. Given our jurisprudence
liberally allowing amendment of pleadings even if requested for
the first time on appeal, and respondent’s failure to identify any
prejudice, I would grant appellants’ request for leave to allege the
previously dismissed claims.
The majority gives the following reasons for denying such
leave: (1) appellants engaged in “gamesmanship” in dismissing
the claims; (2) appellants failed to explain why they did not seek
to add back the claims below given how fatal Van Audenhove was
to their remaining malicious prosecution claim; (3) under Green v.
Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686
(Green), such “long unexcused delay is sufficient” to upheld a trial
court’s denial of leave (id. at p. 692); (4) this is especially true for
claims that had previously been in the trial court proceedings;
and (5) there was prejudice caused by the “inefficiency” of
allowing “a plaintiff to hold partially litigated claims waiting in
the wings until the plaintiff deems it strategically convenient to
resurrect them.”
I agree that nowhere in appellants’ appellate briefing do
they explain why they dismissed their claims for negligence,
defamation, libel per se, and intentional infliction of emotional
distress after they had prevailed on respondent’s dispositive
pleadings attacking those claims and given that their dismissal of
those claims postdated Van Audenhove.1 I disagree that Green
compels the conclusion appellants’ failure to provide that
explanation would be reason alone to infer “gamesmanship.” The
facts in Green constitute a difference in kind, not degree as the
majority appears to conclude. (See maj. opn., ante, at p. 30.)
Green’s complex procedural history is replete with facts—
absent here—demonstrating, in the Green court’s words,
“legal gamesmanship in its purest sense.” (Green, supra,
28 Cal.App.4th at p. 693.) Originally, Green involved the
plaintiffs’ race discrimination claim against, among others, a
mortgage broker that claimed it could not find lenders for
plaintiffs’ purchase of a house albeit plaintiffs had substantial
assets. To dispel an inference of discrimination, the broker
changed its records to reflect the plaintiffs had requested “ ‘an
“A” lender,’ ” which request the plaintiffs denied. At the close of
the plaintiffs’ case, the plaintiffs sought to add a professional
1 Van Audenhove was decided in 2017 and appellants
dismissed their non-malicious prosecution claims in 2020.
2
negligence claim against the broker, which the trial court denied.
The jury found in the plaintiffs’ favor; at the same time, it
rejected their claim that the broker’s “less-than-adequate efforts”
were based on race. (Green, supra, 28 Cal.App.4th at pp. 689–
690.) Because of the inconsistency in this verdict, the trial court
granted a new trial and gave the plaintiffs leave to add a
professional negligence claim. The plaintiffs never filed an
amended complaint adding a professional negligence claim.
When one of the plaintiffs failed to appear at her deposition
after being ordered to do so, the parties agreed that there would
be a retrial of the plaintiffs’ race discrimination claim with no
professional negligence claim. The plaintiffs, however, went
back on this agreement when they opposed the broker’s motion
to preclude at retrial any cause of action except the original civil
rights claim. (Green, supra, 28 Cal.App.4th at p. 690.) When the
court denied the latter motion, it ordered the plaintiff to appear
for her deposition with the proviso that if she failed to appear,
the court would not allow the plaintiffs to sue for professional
negligence. (Ibid.) The plaintiff disobeyed this second court
order to appear for the deposition and the court then forbade the
plaintiffs from pursuing a professional negligence claim. (Id. at
p. 691.) On appeal, the appellate court upheld the trial court’s
ruling, but sent the case back for a new trial on the race
discrimination claim.
At this point, the broker moved to add an affirmative
defense based on its own negligence. The trial court denied the
motion because that defense was inconsistent with the broker’s
verified answer to the original complaint blaming the plaintiffs’
insufficient assets for its failure to obtain a loan. (Green, supra,
28 Cal.App.4th at pp. 691–692.) The plaintiffs prevailed at the
3
retrial of the race discrimination claim, and in the ensuing
appeal, the broker argued the trial court abused its discretion in
denying the broker’s motion to add a negligence affirmative
defense.
The appellate court quickly dispatched the broker’s
contention: “Of course, it is fairly obvious why the mortgage
broker waited so long and why it articulated no excuse for its
delay in seeking to amend. If the broker had asserted its own
negligence prior to the first trial, it almost certainly would have
lost the case on some theory. By waiting until after the first
appeal and the subsequent stricture against allowing the Greens
to amend, the case was perfectly postured for the assertion—now
without cost—of professional negligence as an affirmative
defense. Thus it is clear that the original ‘failure’ to include
negligence as a defense was no failure at all, but a conscious
strategic decision to win the entire case by prevailing on the race
discrimination claim rather than risk defeat on a negligence
claim. As such, the mortgage broker had no ‘excuse’ for not
pleading the negligence defense prior to the first appeal.” (Green,
supra, 28 Cal.App.4th at p. 693.) In so concluding, Green also
noted the inconsistency between the new negligence defense and
the broker’s previous verified pleading and its strategy at the
first trial eschewing negligence with the resulting prejudice to
the plaintiffs, who would have had “to substantially redo their
trial strategy.” (Ibid.)
I fail to see how Green supports the majority’s inference of
“gamesmanship” here. The record before us is silent, let alone
not even remotely akin to Green such that an unexplained reason
for not reasserting the claims earlier would be reason to deny
appellants’ request for leave to add back those claims.
4
Similarly, the record does not support the majority’s
assertion of prejudice based on “inherent” inefficiency and
“strategically” “waiting in the wings” to reassert previously
dismissed claims. (Maj. opn., ante, at p. 31.) Unlike in Green,
there is nothing in the record demonstrating that appellants’
dismissing those claims was “strategic.” The record also reveals
no inefficiency other than that “inherent” in reviving a case.
Respondent’s attack below was through dispositive motion
practice as to all appellants’ claims through either a demurrer or
anti-SLAPP motion. The trial court overruled or denied both
salvos, including the litigation privilege defense respondent
reasserts here in opposing leave to add back the previously
dismissed claims. There thus was no piecemeal motion practice.
The parties also do not claim they engaged in any discovery
below. Without at least some support in the record, the
majority’s reliance on “inherent” inefficiency would appear
inconsistent with our jurisprudence of liberally allowing leave to
amend even if not requested below, and even if doing so would
reinstate a case. (See, e.g., Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 970–971 (Aubry) [“ ‘Where the complaint is
defective, “[i]n the furtherance of justice great liberality should be
exercised in permitting a plaintiff to amend his complaint, and it
ordinarily constitutes an abuse of discretion to sustain a
demurrer without leave to amend if there is a reasonable
possibility that the defect can be cured by amendment.” ’ ”].)
Respondent’s arguments regarding prejudice fare no better.
Respondent does not identify any prejudice other than the
conclusory statement that memories may have been faded and
“important documents” lost. Respondent does not identify a
single file or witness that would be unavailable. It is also hard to
5
imagine that the events surrounding respondent’s false and
staged allegations against appellants would have faded from any
participant’s memory.
Respondent also claims she was deprived of the opportunity
to conduct discovery of the factual bases for the previously
dismissed claims. How so? Absent from respondent’s argument
is any citation to the record indicating that respondent was
deprived of discovery or that respondent even engaged in any
discovery as to any claim. Respondent claims granting leave to
amend would increase litigation costs and cause delay. That is
potentially true whenever leave to amend is granted on appeal.
Finally, in refusing to grant leave here, the majority
distinguishes claims that were once in the case (for which
granting leave on appeal the majority argues would reward
“gamesmanship”) from claims an appellant asserts for the first
time on appeal (impliedly not supporting an inference of
“gamesmanship”). The majority cites no authority for this
analytic distinction. Nor does the majority explain why, under
our jurisprudence and absent a record like in Green, the
distinction would be relevant to whether a party should be given
leave to amend to add potentially viable claims. (Aubry, supra,
2 Cal.4th at pp. 970–971.)
Finally, I note the irony in the majority’s accusing
appellants of “gamesmanship” given respondent’s fraudulent (as
determined by the Los Angeles County Sheriff and District
Attorney) manipulation of law enforcement and judicial
procedures causing, among other hardships, Mikhail’s arrest and
incarceration until he was able to post substantial bail.
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For all these reasons, I would grant appellants leave to
allege claims for defamation, libel per se, intentional infliction of
emotional distress, and negligence.
BENDIX, J.
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