Whitehead v. Young CA2/6

Filed 10/2/14 Whitehead v. Young CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

WILLIAM WHITEHEAD, 2d Civil No. B251147 (Super. Ct. No. 56-2013- Plaintiff and Respondent, 00434703-CU-PO-VTA) (Ventura County) v.

MARK YOUNG et al.,

Defendants and Appellants.

Mark Young and Donahoe & Young, LLP appeal an order denying their special motion to strike a malicious prosecution action filed against them by William Whitehead. (Code Civ. Proc. § 425.16.)1 Whitehead sued Young and his law firm for initiating and maintaining two lawsuits against him on behalf of their clients Paul and Debbie Winchester for damage to their real property. Whitehead asserts the Winchesters' claims were terminated in his favor by voluntary dismissals and that Young had no probable cause to initiate and maintain the actions. We conclude that Whitehead met his burden to present facts that, if believed by a trier of fact, demonstrate a reasonable probability he could prevail

1 All statutory references are to the Code of Civil Procedure.

on his malicious prosecution claim and that the trial court did not err by denying his anti-SLAPP motion. FACTUAL AND PROCEDURAL HISTORY In May 2002, the Winchesters owned a residence in Santa Paula. In July 2009, they listed the property for sale for $1,195,000. In November 2009, Whitehead purchased an adjoining property and asked the Winchesters for permission to trim some pepper trees on their property to improve his view. The Winchesters agreed provided the work was done by an arborist at Whitehead's expense. The Winchesters claim Whitehead did far more than simply trim the trees, reducing seven of them to stumps. The Winchesters consulted an arborist and were told the value of the trees that were cut down was $78,500. An appraiser opined the damage done to the pepper trees reduced the value of the property by $75,000. But before any of the pepper trees were pruned, the Winchesters reduced the listing price of their property to $999,900. It was sold for $1 million in April 2010, after the Winchesters claim Whitehead reduced the value of their property by damaging the trees. The buyer reported that the condition of the pepper trees played no part in his decision to purchase the Winchester property. He said the condition of the trees was not even discussed. The Winchesters' Complaint for Damage to Real Property In June 2010, after the Winchesters sold the property, Young filed a complaint for damages against Whitehead on behalf of the Winchesters to recover the claimed reduction in the value of their property and for the value of the trees. After completing some discovery, the Winchesters offered to settle for increasingly smaller sums, eventually agreeing to dismiss the action if Whitehead would waive costs. Whitehead refused to participate in any settlement on any terms. On April 7, 2011, the Winchesters dismissed their action "without prejudice."