Pesci v. Hobbs CA4/3

California Court of Appeal Jan 20, 2021 No. G059073Unpublished

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Holding. The court held that the plaintiffs lacked standing to sue for malicious prosecution because they were not parties to the underlying litigation, and therefore could not satisfy the requirement that the prior action be terminated in their favor.

Issues

Whether plaintiffs who were not parties to an underlying lawsuit have standing to bring a malicious prosecution claim against the attorneys who filed that lawsuit.
Whether the trial court correctly granted an anti-SLAPP motion against plaintiffs who failed to demonstrate a probability of prevailing on the merits of their malicious prosecution claim.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The underlying action was not pursued to a legal termination favorable to Plaintiffs. Plaintiffs were not parties to the underlying action.”

“We decline Plaintiffs’ invitation to afford standing in a malicious prosecution case in the section 425.16 context to those who were not parties to the underlying litigation.”

Filed 1/19/21 Pesci v. Hobbs CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

CHERYL PESCI et al.,

Plaintiffs and Appellants, G059073

v. (Super. Ct. No. 30-2019-01074366)

CAITLYN HOBBS et al., OPINION

Defendants and Respondents.

Appeal from an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiffs and Appellants. Murchison & Cumming, Lisa D. Angelo and Matthew E. Voss for Defendants and Respondents.

Cheryl Pesci (Cheryl), Patti Johnson, and Marianne Klee (Plaintiffs) appeal from the trial court’s order granting Laura Zamora, Caitlyn Hobbs, and Keith Salek’s (Defendants) special motion to strike1 a malicious prosecution cause of action. Plaintiffs argue the court erred by concluding they did not demonstrate a probability of prevailing. We disagree and affirm the order. FACTS Robert Pesci (Robert), a nonagenarian, suffered from advanced dementia. Plaintiffs are three of Robert’s children who handled his affairs. Jim Pesci (Jim), Plaintiffs’ brother, resided with his father, Robert. Laura Zamora was an employee of Compassionate Heart Senior Care, Inc. dba Home Instead Senior Care Franchise #35 (Home Instead). Home Instead assigned Zamora to care for Robert at his home. Home Instead advertised it provided caregivers who were trained to care for patients suffering from dementia, but Zamora was not trained to do that. The origin of this litigation was an incident Defendants claimed occurred when Zamora was caring for Robert one evening while Jim was away. Zamora alleged Robert “intentionally” fell to the ground. When Zamora tried to help Robert, her attorneys alleged in the complaint that he “sexually molested her.” Zamora retained Salek and Hobbs to represent her. They filed a complaint against Robert, Jim, Home Instead, and its parent company alleging 15 causes of action, including sexual battery and assault, hostile work environment, and wrongful discharge. Robert could not remember anything, and Plaintiffs were distraught over the allegations against their father and brother. Cheryl was appointed Robert’s guardian ad litem.

Pesci v. Hobbs CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

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