Panoutsopoulos v. The Karsant Family Ltd. Partnership CA1/3

Filed 7/29/16 Panoutsopoulos v. The Karsant Family Ltd. Partnership CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

NICHOLAS PANOUTSOPOULOS et al., Plaintiffs and Appellants, A147324 v. THE KARSANT FAMILY LIMITED (City & County of San Francisco PARTNERSHIP et al., Super. Ct. No. CGC-14-537236) Defendants and Respondents.

Plaintiffs Nicholas and Ekaterine Panoutsopoulos appeal from an order granting a special motion to strike their cause of action for malicious prosecution brought by defendants Andrew M. Zacks and his law firm Zacks and Freedman (defendants). The malicious prosecution claim is based on the filing of a cross-complaint by defendants on behalf of their clients Peter Karsant and the Karsant Family Limited Partnership (KFLP) that the cross-complainants voluntarily dismissed with prejudice. The special motion to strike was granted on the ground that there was no favorable termination of the entire action because plaintiffs’ original causes of action against Karsant and KFLP were still pending. Plaintiffs contend the dismissal of the cross-complaint with prejudice sufficiently satisfies the favorable-termination element of a malicious prosecution claim despite the continuing litigation over other causes of action of the complaint. We conclude that the trial court properly applied existing authority, particularly Pasternack v. McCullough (2015) 235 Cal.App.4th 1347 (Pasternack), which holds that “the weight of authority is firmly against allowing a party . . . to commence a malicious prosecution

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action against any party, based on a severed and favorably adjudicated claim, while the party pursues other claims in the underlying action” (id. at p. 1356). We shall therefore affirm the order granting the special motion to strike. Background The present dispute arises out of a lengthy history of litigation, the details of which need not be considered in order to resolve the issue now before the court. In brief, plaintiffs are former commercial tenants of KFLP who previously operated a café at the leased premises. Karsant is the managing general partner of KFLP. Plaintiffs filed the present action in February 2014, alleging that Karsant and KFLP fraudulently induced them to enter a settlement of a prior suit between the same parties, in which Karsant and KFLP had agreed to offer a proposed lease of the premises to a potential purchaser of the café on certain terms. Karsant and KFLP, represented by defendants, filed a cross- complaint against plaintiffs alleging, among other things, conversion of property removed from the premises at the expiration of plaintiffs’ lease and causing damage to the property, interfering with KFLP’s ability to release the premises. In May 2015, two and a half weeks before the case was set for trial, the cross-complainants dismissed the cross- complaint with prejudice, allegedly without the payment of any consideration by plaintiffs. The case did not then proceed to trial and in August 2015, pursuant to leave of court, plaintiffs filed a second amended complaint. The amended complaint re-alleges causes of action against Karsant and KFLP for breach of the prior settlement agreement and tortious interference with plaintiffs’ contractual relations and against KFLP for breach of the underlying lease; the amended complaint also adds a new, fifth, cause of action against Karsant, KFLP and defendants, their attorneys, for malicious prosecution. Defendants then brought a special motion to strike the amended complaint under the anti- SLAPP statute (Code Civ. Proc., § 425.16), which the trial court granted, dismissing the action against defendants.1 The court’s order explains: “As Pasternack v. McCuIlough