Mendoza v. Wichmann

Opinion

NICHOLSON, J. The trial court denied defendants’ motion to strike plaintiff’s malicious prosecution complaint as a SLAPP, ruling plaintiff had introduced sufficient evidence of her likelihood of succeeding on the merits.1

We reverse. We find on the undisputed facts that defendants had probable cause to bring the underlying action, and thus plaintiff cannot establish an element of her malicious prosecution claim. We direct the trial court to enter a new order granting defendants’ motion and dismissing the malicious prosecution complaint.

INTRODUCTION2

Defendant Jeffrey Wichmann was a defendant in a civil action in Yolo County captioned “Dale M. Wallis v. PEL Associates, Inc., et al.” (the Wallis [1434]action). Plaintiff Joanna R. Mendoza was the attorney for Dale Wallis in the Wallis action. In that action, Wallis claimed her former employer, PHL Associates, Inc. (PHL), which Wichmann partially owned, had wrongfully terminated her. The lawsuit involved ownership rights to a vaccine that Wallis claimed she developed while employed at PHL. A mistrial was declared on the first trial, but at the second trial, a jury found Wichmann liable. However, no judgment has been entered pending trial of a cross-complaint Wichmann filed in the action. (Wichmann I, supra, C037241.)3

The events giving rise to this case began to unfold after jury deliberations commenced in the second trial of the Wallis action. Because Wallis and Mendoza had experienced a number of incidents of vandalism and harassment, and because they believed Wichmann was responsible for these incidents, Carol Livingston, the managing principal of Mendoza’s law firm, Livingston and Mattesich (L&M), was notified of Mendoza’s safety concerns. Livingston contacted a representative of the owner of the building in which L&M’s offices were located and relayed those concerns. Livingston also gave the building’s security guard Wichmann’s name, description, and picture. Someone made a report to the police department, although Livingston and L&M denied they did it. (Wichmann I, supra, C037241.)

While the jury was deliberating in the Wallis action, the trial judge called a conference of all parties in the action and handed them a copy of the police report. The report stated Sheri Woodward, property manager of the L&M building, advised the authorities that Wichmann was “very unstable, [had] called in threats and [had] participated in the vandalism of [the] law firm’s vehicles.” In response, Wichmann filed an action against Mendoza, Livingston, and L&M for defamation. (Wichmann v. Livingston & Mattesich Law Corp. (Super. Ct. Sacramento County, No. 00AS04943).)