Bedolla v. Wang CA6

Filed 10/28/22 Bedolla v. Wang CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

KEVIN BEDOLLA, H047272 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 18-CV-325918)

v.

ADAM WANG et al.,

Defendants and Appellants.

This is an appeal from the denial of defendants’ motion to strike a cause of action for malicious prosecution under Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute).1 The motion was denied as untimely in the exercise of the trial court’s discretion. For the reasons stated here, we will affirm. BACKGROUND Plaintiff is an attorney who represented defendant LIL, Inc. (LIL), in a civil matter. When LIL failed to pay for services rendered, plaintiff sued LIL and its officers and directors (defendants Adam Wang and Jennifer Wang) for breach of contract and common counts (the collection action). Several months into the collection action and after not opposing plaintiff’s request for a prejudgment writ of attachment, defendants cross-complained to allege breach of fiduciary duty, fraud, breach of contract, and unjust enrichment, and they demanded a jury trial. Plaintiff prevailed at trial in the collection

SLAPP is an acronym for “ ‘strategic lawsuit against public participation.’ ” 1

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

action. Judgment was entered on April 24, 2017, in favor of plaintiff and against defendants in the amount of $115,806.86. The trial court denied plaintiff’s posttrial motion for attorney fees as a sanction under Code of Civil Procedure section 128.5. Plaintiff sued defendants again a year later for malicious prosecution, alleging defendants had acted without probable cause in bringing the cross-complaint in the collection action, their sole purpose being to annoy and harass plaintiff so that he would dismiss his case. The complaint was personally served on May 3, 2018. On July 10, 2018, defendants filed an anti-SLAPP motion to strike the new complaint under Code of Civil Procedure section 425.16. Defendants based their motion on res judicata and collateral estoppel arising from two rulings in the collection action which they contended “tested the merits of the cross-complaint.” They also asserted the denial of plaintiff’s motion to strike the cross-complaint as a discovery sanction was “ ‘an interim victory’ ” which established probable cause, and the denial of plaintiff’s posttrial motion for sanctions in the form of attorney fees under Code of Civil Procedure section 128.5 “demonstrate[d] as a matter of law that the [c]ross-[c]omplaint . . . had probable cause.” Defendants asked the trial court to take judicial notice of the collection judgment and documents related to the postjudgment attorney fees motion, including the transcript of the hearing on that motion. In a supporting declaration, Adam Wang stated that the special motion to strike could not be filed within 60 days after the complaint was served because he was unable to obtain the transcript from the postjudgment hearing in the collection action before July 5, despite his “prompt request and numerous follow-ups.” He attached e-mail correspondence with the court reporter about the request. Plaintiff opposed the motion on timeliness grounds. The motion was filed eight days late (and set for hearing 26 days late), and he argued defendants failed to provide a basis to excuse either deadline. As to issue preclusion, plaintiff argued that neither ruling in the collection action defeated his malicious prosecution lawsuit: The motion to strike the cross-complaint sought terminating sanctions for defendants’ failure to comply with 2