Cerni vs. Karen A. Sunday & Associates, Inc.

Plaintiff files this motion to lift the discovery stay so that he can conduct discovery related to Sunday’s claim that she told her lawyers everything and relied on their advice to sue Plaintiff for a commission on the sale of commercial property without a written contract.

Section 425.16 subd. (g) provides as follows: “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (emphasis added)

“Decisions that have considered what constitutes such a showing of good cause have described it as a showing that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case. The showing should include some explanation of what additional facts [plaintiff] expects to uncover. Only in these circumstances is the discretion under section 425.16, subdivision (g) to be ‘liberally exercise[d].’ Discovery may not be obtained merely to ‘test’ the opponent's declarations.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.)

Malicious Prosecution

To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the 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; (2) was brought without probable cause; and (3) was initiated with malice. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.)

“In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

Sunday contests both probable cause and malice with a single defense – advice of counsel. Plaintiff argues he is unable to rebut this defense, and establish a prima facie case, without conducting discovery to determine what facts Sunday disclosed to her counsel regarding the alleged commission agreement. To allow Sunday’s declaration that she disclosed all material facts to The Walker Law Firm (her first lawyers) and later to Stone LLP and relied in good faith that her claims were tenable, without challenge, would be unjust. Moreover, Sunday and her counsel are in possession of any documents or information that would prove or disprove her claim, thus necessitating the need for discovery prior to the hearing on Sunday’s anti-SLAPP. Requests for admission to Defendant Sunday and The Walker Law Firm, APC directed to Sunday’s

possession of the Purchase Agreement and the letters of intent before the Underlying Action was filed.

Sunday contends that Plaintiff has failed to demonstrate “good cause” for the requested discovery. More is needed that a plaintiff’s assertion that discovery might help, as Plaintiff’s motion argues. Plaintiff cannot obtain discovery simply to test Sunday’s declaration. (See 1-800 Contacts, supra, 107 Cal.App.4th at 593.)

Additionally, Sunday argues that whether Plaintiff is able to disprove the advice of counsel defense is immaterial to the determination of the anti-SLAPP. Malice may not be inferred from the mere fact that the prior action was unsuccessful, or even that it lacked probable cause. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498–499.) To establish malice, a plaintiff must show that the prior action was initiated or maintained primarily out of hostility or ill will, or for some other improper purpose. (Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.) Sunday has denied under penalty of perjury any such motive.

The California Supreme Court, however, has also stated that [m]alice “may range anywhere from open hostility to indifference. Malice may also be inferred from the facts establishing lack of probable cause.” (Soukup v. Law Offices of Herbert Huff (2006) 39 Cal.4th 260, 292.) Therefore, Sunday’s denial of a malicious motive is insufficient in and of itself to negate malice.

Further, to establish a probability of prevailing, the plaintiff need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Id. at 291.) Thus, if Plaintiff obtains information through discovery that defeats the advice of counsel defense and demonstrates Sunday and/or co-Defendants lacked probable cause, it may be sufficient to establish a probability of prevailing. As such, good cause exists to lift the discovery stay in this case.

Sunday argues the scope of the discovery sought is too broad and is not tailored to the elements of Plaintiff’s prima facie case. The Court agrees and will limit the discovery permitted.

Abuse of Process

“A claim for abuse of process arises when a party (1) for ulterior reasons (2) misuses the court’s process for a purpose other than the purpose for which the process was designed.” (Ramona Unified

School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 520.) “Although initiating a meritless claim for an improper purpose can expose a party to damages for malicious prosecution, the mere initiation of a lawsuit, even for an improper purpose, does not support a claim for abuse of process.” (Ibid.) Abuse of process claims include lawsuits involving improper uses of the tools afforded litigants, such as improper use of discovery, service of wrongful attachments, or obtaining a temporary restraining order to perpetuate a false representation concerning a party. (See Maleti v. Wickers (2022) 82 Cal.App.5th 181, 230.)

In opposition, Sunday argues the discovery sought is relevant only to the malicious prosecution cause of action and not the abuse of process cause of action. The Court agrees. Plaintiff should be able to establish a prima facie case without the need for additional discovery.

Accordingly, the lifting of the discovery stay shall be limited to Plaintiff’s claim for malicious prosecution and not his claim for abuse of process.

Based on the foregoing, the Court Orders as follows:

1. The discovery stay is lifted to allow for limited discovery related to Plaintiff’s claim for malicious prosecution only. No discovery will be allowed for his abuse of process claim.

2. Discovery shall be limited to 10 interrogatories and 10 document demands on each Defendant. Service of the discovery and responses shall be in accordance with the Code.

3. The hearings on defendant Sunday & Associates’ anti- SLAPP motion (ROA 40) and defendants Stone LLP, Elliot H. Stone, and Robert S. Throckmorton’s anti-SLAPP motion (ROA 57) are continued to November 12, 2026 at 8:30 a.m. in Department C44

Clerk to give notice.

3 Collins vs. Kaiser Foundation Health Plan, Inc.

2023-01361496 Motion for Summary Judgment and/or Adjudication

Continued. See stipulation and order filed 6/26/26 (ROA 114).