No. G052419.

WILLIAM CARTER et al., Plaintiffs and Appellants, v. SESSIONS & KIMBALL, LLP, et al., Defendants and Respondents.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Law Office of Jeffrey S. Schwartz and Jeffrey S. Schwartz for Plaintiffs and Appellants.

Barman Berman Berman Schneider & Lowary, James W. McCord and Howard J. Smith for Defendants and Respondents.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Plaintiffs William Carter (Carter) and Carter Industrial Automation, Inc. (CIA) appeal from an order granting a motion to strike brought pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute)1 by defendants Sessions & Kimball, LLP, Michael C. Robinson (Robinson), Natascha Chevalier and Michael Chevalier, and dismissing plaintiffs complaint in its entirety. Plaintiffs contend the trial court erred in granting the motion with respect to their malicious prosecution cause of action because they produced sufficient evidence to demonstrate a probability of success. We disagree and affirm the order.



CIA is an engineering company that provides services primarily related to industrial electrical, controls and instrumentation projects. Carter is the general manager of CIA. In his personal life, Carter is a member of the church that Natascha2 and Michael used to attend, which is how Carter got to know the couple.

In late 2009, Carter learned through the church that Natascha and Michael were having financial difficulties and that Natascha was looking for a job. After speaking with Natascha, Carter offered her a position as his administrative assistant at CIA. In that role, Natascha answered phones, typed documents, placed orders, arranged shipments, paid bills, and electronically entered and maintained company data, including employee time records.

Carter also had Michael perform various types of tasks at CIA during the month of March 2010. Based on alleged conversations with Carter, Michael believed he was being hired as a CIA employee, to be trained by Carter as an electrician. During the two-week period that he performed work at CIA, Michael's work hours varied depending on what needed to be done, and the work he performed primarily involved cleaning and reorganizing the "shop" area where products were worked on. After two weeks, Carter told Michael that work was slow, money was low and that he would call him the following week concerning additional work. Carter did not call Michael. About one month later, Michael performed approximately two to four hours of work for Carter; he allegedly was not paid.

At the beginning of 2011, Carter terminated Natascha from her position at CIA. Natascha filed a workers' compensation claim that same day. In the ensuing months, tension grew between the Chevaliers and Carter due to the pendency of the workers' compensation claim, two civil harassment restraining orders unsuccessfully sought by Natascha against Carter, contentious communications between the parties' respective attorneys, and a discrimination complaint filed by Natascha with the California Department of Fair Employment and Housing (DFEH).

On December 21, 2011, after being granted an immediate right-to-sue notice by the DFEH, Natascha filed suit against Carter. The complaint alleged 14 causes of action, including wrongful termination and retaliation, unlawful discrimination, sexual harassment, failure to pay standard and overtime wages and intentional infliction of emotional distress (IIED). Michael filed suit against Carter on the same day. Among the 14 causes of action in his complaint were ones for disability discrimination and harassment, failure to pay wages and IIED.3 The trial court consolidated the two cases (collectively, the employment lawsuits) and a jury trial was held.

At trial, following the presentation of the Chevaliers' cases, the defense rested its case without presenting its own testimony or evidence. The defense made a motion for nonsuit as to two of Natascha's causes of action and two of Michael's causes of action. After hearing argument from all parties outside the presence of the jury, the trial court granted nonsuit as to Michael's cause of action for IIED due to a complete lack of evidence concerning "outrageous" conduct by Carter. The court denied nonsuit as to the other three requested causes of action, including Natascha's cause of action for IIED and both Natascha's and Michael's cause of action for disability discrimination and harassment.

The jury deliberated on all remaining causes of action, and ultimately rendered special verdicts fully in favor of Carter. Judgment was entered accordingly on June 19, 2013, and notice of entry of judgment was served one month later.

On October 7, 2014, Carter and CIA filed the complaint in this case against the Chevaliers, the attorney who represented them in the employment lawsuits, Robinson, and his law firm, Sessions & Kimball, LLP. The causes of action include: malicious prosecution, harassment, abuse of process, intentional infliction of emotional distress and negligent infliction of emotional distress (NIED). Carter and CIA seek general, special and punitive damages, all allegedly stemming from the employment lawsuits and defendants' actions with respect thereto.

Defendants moved to strike the entire complaint pursuant to the anti-SLAPP statute. Following briefing and submittal of evidence by both the parties, as well as oral argument, the trial court granted defendants' motion. The court agreed that the anti-SLAPP statute applied, a matter undisputed by the parties, and found that plaintiffs failed to meet their burden of establishing a probability of prevailing on the merits of any of their causes of action. The court entered an order granting the anti-SLAPP motion and dismissing the complaint in its entirety. Plaintiffs timely appealed.



"The anti-SLAPP statute . . . provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. [The Supreme Court has] described this second step as a `summary-judgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] `[C]laims with the requisite minimal merit may proceed.' [Citation.]" (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, fn. omitted.)

Our review of an order granting a special motion to strike under section 425.16 is de novo. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1536 (Jay).) We engage in the same two-step process as the trial court to determine if the parties have satisfied their respective burdens. (Ibid.)

There is no dispute that the anti-SLAPP statute applies in this case — defendants' claims arise from plaintiffs' prior litigation activity, which is protected speech. (§ 425.16, subd. (e); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) Our discussion focuses on the second stage of the analysis, keeping in mind that plaintiffs must produce admissible evidence to meet their burden. (Jay, supra, 218 Cal.App.4th at p. 1536.) They cannot simply rely on the complaint's allegations. (Ibid.) For the reasons detailed below, we conclude plaintiffs have not demonstrated a probability of succeeding on their malicious prosecution cause of action, and they have waived the right to challenge the trial court's dismissal of their other causes of action.

A. Malicious Prosecution

"[M]alicious prosecution is a `disfavored action.'" (Jay, supra, 218 Cal.App.4th at p. 1539.) To prevail, "plaintiff[s] must show that the prior action (1) was commenced by or at the direction of the defendant[s] and was pursued to a legal termination favorable to the plaintiff[s]; (2) was brought without probable cause; and (3) was initiated with malice." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup).) The parties dispute whether plaintiffs have made the requisite showing concerning the latter two elements.

1. Statute of Limitations

Preliminarily, we address defendants' contention that the malicious prosecution cause of action is barred as against Robinson and Sessions & Kimball, LLP, due to the one-year statute of limitations set forth in section 340.6.4 They argue that Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee), confirmed the applicability of section 340.6 to malicious prosecution actions brought against attorneys and their law firms. Defendants, however, fail to appreciate the full scope of the Supreme Court's pronouncements in Lee.

The Lee court held that section 340.6 applies to a limited group of actions brought against attorneys. Specifically, it "applies to claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professional services. In this context, a `professional obligation' is an obligation that an attorney has by virtue of being an attorney, such as fiduciary obligations, the obligation to perform competently . . . and the obligations embodied in the State Bar Rules of Professional Conduct." (Lee, supra, 61 Cal.4th at pp. 1236-1237, italics added.) If a cause of action may be proven by some other means, then section 340.6 does not apply, unless and until it later comes to light that the cause of action does, in fact, hinge on establishing the attorney defendant violated a professional obligation. (Id. at pp. 1238-1239.)

Given that the statute of limitations question in Lee arose at the demurrer stage, the complaint's allegations were assumed to be true. (Lee, supra, 61 Cal.4th at p. 1240.) The court concluded the complaint, on its face, did not reveal that the plaintiff's conversion cause of action was time-barred under section 340.6 because the allegations could be construed as alleging both garden-variety wrongdoing and a violation of certain attorney professional obligations. (Ibid.) It expressly left open the possibility that the cause of action could later be proven time-barred if it was subsequently revealed that the claim hinged on proof the attorney violated a professional obligation. (Ibid.)

Here, the malicious prosecution claim does not "necessarily depend[] on proof that [Robinson] violated a professional obligation" of attorneys. (Lee, supra, 61 Cal.4th at p. 1238.) Rather, the wrong that forms the basis of the cause of action against Robinson and Sessions & Kimball, LLP, is the same wrong alleged as to Natascha and Michael — the malicious initiation and continued pursuit of a cause of action without probable cause. This concerns an "obligation[] that all persons subject to California's laws have[,]" not a specific professional obligation of an attorney. (Ibid.; see Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 87-88.) Thus, we cannot conclude at this time that section 340.6, subdivision (a), necessarily bars the cause of action against Robinson and Sessions & Kimball, LLP. (See Lee, supra, 61 Cal.4th at p. 1240.)

2. Probable Cause

Turning to probable cause, plaintiffs argue that two of the causes of action in the employment lawsuits were initially brought, and thereafter pursued, without probable cause — Michael's cause of action for IIED and Natascha's cause of action for sexual harassment. Defendants disagree, claiming that evidence demonstrates the causes of action were objectively tenable. We agree with plaintiffs as to Michael's cause of action and with defendants as to Natascha's.

Probable cause in the context of malicious prosecution "is a low threshold designed to protect a litigant's right to assert arguable legal claims even if [they] are extremely unlikely to succeed." (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.) It exists "if, at the time the claim was filed, `any reasonable attorney would have thought the claim tenable.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 737, 742 (Jarrow Formulas).) The test is an objective one (Zamos v. Stroud (2004) 32 Cal.4th 958, 971 (Zamos)), and "`[a] court must consider both the factual circumstances established by the evidence and the legal theory upon which relief is sought.'" (Jay, supra, 218 Cal.App.4th at pp. 1540-1541.) Because reasonable lawyers may differ as to whether a cause of action has potential merit; lack of probable cause is only established when no reasonable lawyer would have thought the cause of action tenable. (Jarrow Formulas, supra, 31 Cal.4th at pp. 742-743.) The same standard applies to the continued pursuit of a cause of action. (Zamos, supra, 32 Cal.4th at p. 970.)

As for Michael's IIED claim, plaintiffs' evidence demonstrates there was a lack of probable cause to bring it. In April 2012, plaintiffs' then counsel deposed Michael and questioned him as to the full extent of his alleged emotional distress. Michael stated that it stemmed from: (1) Carter purportedly saying he would employ Michael as an electrician's apprentice, and then failing to do so; and (2) Carter allegedly making a verbal agreement to employ Michael, but then failing to give him more than two weeks' worth of work. When asked what emotional distress he suffered, Michael stated he was "[j]ust confused" and "wondering . . . if there was anything that [he had] done." No reasonable attorney would think that these purported actions by Carter were remotely near the requisite "outrageous" level for an IIED cause of action. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 ["`"Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community"'"].) Similarly, no reasonable attorney would think that the alleged distress Michael experienced was anywhere close to "severe." (See Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397 [emotional distress must be "so severe that no reasonable [person] could be expected to endure it"].)

The lack of potential merit was underscored when the trial court granted Carter's motion for nonsuit concerning Michael's IIED claim after Michael rested his case. Prior to granting nonsuit, the court twice gave Robinson the opportunity to identify any evidence of "outrageous" conduct so that the cause of action could be sent to the jury. Robinson could not do so.

Natascha's sexual harassment claim is a different story. Prior to the employment lawsuits being filed, Robinson articulated in a letter to Carter's counsel the actions by Carter that purportedly amounted to sexual harassment. Among the dozen alleged acts were: (1) Carter "brush[ing] his penis against Natascha's buttocks in the kitchen at CIA"; (2) Carter "frequently tr[ying] to hug Natascha in the car during business meeting travel"; (3) Carter telling Natascha "to model for him"; (4) Carter telling "Natascha to walk a certain way for him by strutting like a woman"; (5) Carter "constantly leer[ing] at Natascha's breasts"; and (6) Carter "regularly [telling] Natascha that he liked the way she `smelled,' and that he was getting aroused[.]"

The only evidence plaintiffs present to demonstrate a lack of probable cause is Natascha's deposition testimony in which she stated that Carter had never touched her inappropriately. This at most touches on the first act alleged by Natascha; it says nothing about the remainder. Plaintiffs have not made the requisite prima facie showing as to lack of probable cause for Natascha's sexual harassment claim.

3. Malice

Our resolution of the malicious prosecution cause of action as to Natascha based on the probable cause element leaves us with a discussion of malice as to Michael, Robinson and Sessions & Kimball, LLP, only. (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 454.)

"`The `malice' element . . . relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive. [Citation.]' [Citation.] [¶] . . . [¶]. . . `Suits with the hallmark of an improper purpose' include `those in which: "`. . . (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.'" [Citation.]' [Citation.]" (Jay, supra, 218 Cal.App.4th at p. 1543.)

Malice may be established through direct or circumstantial evidence, and malicious attitudes may range "`from open hostility to indifference.'" (Soukup, supra, 39 Cal.4th at p. 292.) While a lack of probable cause tends to show malice, it is insufficient standing alone. (Jay, supra, 218 Cal.App.4th at p. 1543.) Additional admissible evidence is needed. (Ibid.)

Plaintiffs argue that "at all times, even prior to the commencement of [the employment lawsuits], all [defendants] . . . were interested in was a money grab, and not the legal viability of the pursued claims." But, such a statement is conclusory and speculative. Plaintiffs' attempt to rely on settlement communications related to Natascha's employment lawsuit does not demonstrate malice as to Michael's IIED cause of action. There simply is no evidence that Michael filed and maintained his IIED cause of action for "the intentionally wrongful purpose of injuring [Carter and CIA]." (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 499; compare HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218-219 [malice demonstrated through evidence that plaintiff refused to dismiss frivolous case unless defendant paid $25,000].)

B. Abuse of Process, Fraud, IIED and NIED

Although the trial court granted the anti-SLAPP motion as to each and every cause of action, plaintiffs' opening brief on appeal did not assert error with respect to any cause of action other than malicious prosecution. Accordingly, they have waived the right to challenge the court's dismissal of their causes of action for abuse of process, fraud, IIED and NIED. (Dieckmeyer v. Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 260.)



The order is affirmed. Respondents are entitled to their costs on appeal.



1. All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
2. When necessary, we use the Chevaliers' first names to avoid confusion. No disrespect is intended.
3. Natascha and Michael's 2011 complaints were not included as part of the record in this case. We take judicial notice of them on our own motion. (Evid. Code, §§ 452, subd. (d), 459.)
4. Section 340.6, subdivision (a) provides, in relevant part: "An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case."


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