California Court of Appeal Feb 28, 2013 No. D059749Unpublished
Filed 2/28/13 Maraziti v. Stone CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RICHARD J. MARAZITI et al., D059749
Plaintiffs and Appellants,
v. (Super. Ct. 37-2010-00099817-CU- PO-CTL) DAVID A. STONE, JR.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Ronald S.
Prager, Judge. Affirmed.
Richard J. Maraziti and Signature Log Homes, LLC (Signature, together with
Maraziti, Plaintiffs) entered into a joint venture with David A. Stone, Jr. whereby they
agreed to build log cabins on five unimproved lots owned by Stone in Big Bear,
California. In the underlying action, Plaintiffs filed a complaint against Stone for
amounts allegedly due under the agreement. Stone filed a cross-complaint alleging,
among other things, that Plaintiffs overcharged him for construction costs. Both sides
failed to prevail on their respective claims.
Plaintiffs filed this action for malicious prosecution against Stone based on his
prosecution of the cross-complaint. Plaintiffs appeal from an order granting Stone's
special motion to strike their complaint under Code of Civil Procedure section 425.16,
the anti-SLAPP (strategic lawsuit against public participation) statute. (All undesignated
Finally, Plaintiffs set forth portions of Maraziti's declaration which were not
objected to below. They assert that these portions of the declaration, if believed,
demonstrated a probability they would prevail in their malicious prosecution claim. They
also argue that the trial court improperly sustained objections to other portions of the
declaration that would have demonstrated a probability they would prevail in their
malicious prosecution claim.
For purposes of analysis, we examined Maraziti's entire 23-page declaration to
determine whether it contained evidence showing Stone lacked probable cause to file his
cross-complaint, thus establishing a probability that Plaintiffs would prevail on the merits
of their malicious prosecution claim. The first five paragraphs of the declaration
established Maraziti's knowledge and authenticated certain documents. Maraziti next
stated that Stone prosecuted his cross-complaint based on fabricated documents, that the
summary adjudication motion was not decided on its merits, and then authenticated
numerous documents. The balance of the declaration stated that Stone prosecuted his
cross-complaint based on fabricated documents, that Stone knew the documents were
fabricated, that Stone exaggerated his claims and then dropped most of them at the last
moment, and that Stone failed to cooperate during discovery. Maraziti's supplemental
declaration provided foundation for some exhibits and again attested that Stone altered
numerous documents.
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Maraziti's declarations do not contain evidence showing Stone lacked probable
cause to file and prosecute the underlying cross-complaint. As we discussed above, the
underlying trial court evaluated the documents that Stone allegedly falsified, but
nonetheless concluded that the fabricated documents did not impact the litigation. Based
on these findings, Stone's delay in providing any documents could not have affected the
litigation. While Plaintiffs suggest in their reply brief that the underlying trial court did
not have all of the fabricated documents and thus did not consider all of the evidence,
Plaintiffs failed to cite any particular document and explain how the document
established that Stone lacked probable cause to prosecute the underlying cross-complaint.
Finally, Plaintiffs contend that the trial court erroneously excluded some of the
documents they presented in opposition to the anti-SLAPP motion. Assuming, without
deciding, that the trial court erroneously excluded these documents, Plaintiffs again failed
to explain how these documents established that Stone lacked probable cause to prosecute
the cross-complaint. Plaintiffs argued some of the excluded documents reveal that Stone
"made a huge profit and suffered no loss." Accordingly, they conclude that Stone
maliciously sought over $3 million in damages. These documents were escrow closing
statements on two of the lots showing money due to Stone. However, as the trial court
impliedly noted in deciding the underlying action, evidence showing purported profits or
losses are meaningless without an accounting.
Plaintiffs failed to show a probability of prevailing on the lack of probable cause
element of their malicious prosecution claim. Accordingly, the trial court properly
granted the motion to strike.
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C. Denial of Plaintiffs' Request for a Continuance and for Discovery
The filing of an anti-SLAPP motion automatically stays "[a]ll discovery
proceedings." (§ 425.16, subd. (g).) To justify lifting the discovery stay, the plaintiff
must demonstrate that the proposed discovery is both necessary in the context of the
issues raised by the anti-SLAPP motion and must explain what facts the plaintiff expects
to uncover. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.) The
decision whether to lift the discovery stay is within the trial court's discretion. (Tutor-
Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 617.)
Here, Plaintiffs requested that the trial court continue the hearing on the anti-
SLAPP motion to allow them to conduct discovery on whether Stone's counsel (1) did a
forensic analysis of Sub-Rider A or other allegedly fabricated documents, and
(2) objectively analyzed Stone's damage claims, including any expert analysis. Plaintiffs
sought to depose Stone, any experts, Stone's attorneys, and the person most
knowledgeable regarding the authenticity of documents and damages. The trial court
denied the request, ruling that the information Plaintiffs sought was covered by the
attorney-client privilege and the attorney work product doctrine.
Plaintiffs assert the trial court abused its discretion when it denied their request to
conduct limited discovery because Stone waived the "work product privilege" when his
attorneys asserted that they reviewed documents relating to the dispute, gave their
impressions, and expressed their belief that probable cause existed for the cross-claims.
We reject their assertion.
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As the party opposing the attorney-client privilege, Plaintiffs had the burden of
establishing that the privilege did not apply, that an exception existed, or that there was
an express or implied waiver. (Evid. Code, §§ 912, 917, subd. (a); Titmas v. Superior
Court (2001) 87 Cal.App.4th 738, 745.) Plaintiffs, however, cited no authority and
provided no analysis to support their assertion that Stone waived either the attorney-client
privilege or the protection afforded by the attorney work product doctrine. Plaintiffs
similarly cited no authority and provided no analysis to support their implied assertion
that the trial court erred when it concluded that discovery would be futile because the
information they sought was covered by the attorney-client privilege or the attorney work
product doctrine. Plaintiffs also failed to show how Stone or Stone's attorneys disclosed
a significant part of work product so as to waive the protection afforded by the attorney
work product doctrine. (OXY Resources California LLC v. Superior Court (2004) 115
Cal.App.4th 874, 891.) Accordingly, we deem these issues abandoned. (Landry, supra,
39 Cal.App.4th at pp. 699–700.) In any event, we reviewed the declarations filed by
Stone's attorneys in opposition to the anti-SLAPP motion and conclude that the
declarations set forth nonprotected information based on the personal knowledge of the
declarants and do not disclose any confidential communications with Stone.
Plaintiffs also assert that some of the discovery they sought was not subject to the
attorney-client privilege or attorney work product doctrine. However, they failed to
detail how additional discovery on the matters raised in their discovery request was
necessary in the context of the issues raised in the anti-SLAPP motion. (The Garment
Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.) In their ex parte
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application for discovery, Plaintiffs strenuously argued that Stone's exaggerated damage
claims and falsified documents showed a lack of probable cause to prosecute the
underlying cross-complaint. As the underlying trial court noted in its statement of
decision, both parties "engaged in considerable discovery in preparation for trial" and
presented a "staggering" amount of documentation. After reviewing all the evidence, the
underlying trial court concluded that the fabricated documents did not impact the
litigation, Stone believed the validity of his claims, and Stone's failure to provide a
qualified accounting doomed his claims. Plaintiffs have not detailed what nonprivileged
information they hoped to uncover and it appears no amount of discovery could
undermine this strong evidence of probable cause.
On this record, Plaintiffs have not shown that the trial court abused its discretion
in denying their discovery request. Having failed to make their case for discovery,
Plaintiffs necessarily failed to show good cause for a continuance.
DISPOSITION
The order is affirmed. Respondent is entitled to his costs on appeal.
MCINTYRE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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AI Brief
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Holding. The court affirmed the trial court's order granting the defendant's anti-SLAPP motion, holding that the plaintiffs failed to demonstrate a probability of prevailing on their malicious prosecution claim because they could not establish that the defendant lacked probable cause to initiate the underlying cross-complaint. The court further held that the trial court did not abuse its discretion in denying the plaintiffs' request to lift the statutory discovery stay.
Issues
Whether the plaintiffs established a probability of prevailing on their malicious prosecution claim to defeat an anti-SLAPP motion.
Whether the trial court abused its discretion in denying the plaintiffs' request to lift the automatic discovery stay under Code of Civil Procedure section 425.16, subdivision (g).
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Plaintiffs failed to show a probability of prevailing on the lack of probable cause element of their malicious prosecution claim.”
“Plaintiffs have not shown that the trial court abused its discretion in denying their discovery request.”