Minkovitch v. Mansouri CA2/2 ( 2020 )

Filed 11/30/20 Minkovitch v. Mansouri CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
YAN MINKOVITCH, B299820
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV06902)
v.
PEDRAM MANSOURI et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County. Gregory Keosian, Judge. Affirmed.
Yan Minkovitch, in pro. per., for Plaintiff and Appellant.
Kaufman Dolowich & Voluck, Barry Z. Brodsky and Jodi L.
Girten for Defendants and Respondents.
_________________________________
Yan Minkovitch appeals from the trial court’s order
granting a motion to strike under Code of Civil Procedure section
425.16, the anti-SLAPP statute.1 Respondents Pedram
Mansouri, Christine Otero and The Mansouri Law Offices
(collectively Respondents) were the lawyers for Minkovitch’s ex-
wife in their marital dissolution proceedings. Minkovitch claims
that during those proceedings: (1) Mansouri physically assaulted
him with rolled-up motion papers; (2) the Mansouri firm made
false allegations against him in a contempt proceeding;
(3) Mansouri threatened him in an email; and (4) Mansouri
falsely reported Minkovitch’s child support obligations to the
Department of Child Support Services. The trial court struck all
but the first category of claims under section 425.16.
We affirm. The claims that the trial court struck all arise
out of protected litigation and other protected petitioning
conduct. Except for Minkovitch’s cause of action for malicious
prosecution, each of those claims is also barred by the litigation
privilege. And the malicious prosecution claim could not have
succeeded because such a claim cannot be predicated on
unsuccessful motions in a marital dissolution action.
1Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
2
BACKGROUND
1. The Dissolution Action
Respondents represent Minkovitch’s ex-wife, Lina, in the
former couple’s dissolution action (Dissolution Action).2
On January 11, 2018, Respondents filed an Order to Show
Cause re Contempt in the Dissolution Action (Contempt OSC).
The Contempt OSC claimed that Minkovitch had failed to pay 14
months of court-ordered spousal support and child support for the
couple’s two children, resulting in payment arrears of $15,266.
Pursuant to a court order, Lina had previously received
$13,000 in child and spousal support payments from an escrow
account containing funds from the sale of the couple’s house. The
court had authorized the use of such funds for support payments
when Minkovitch was more than 5 days late in paying support.
Lina claimed that the house had been her separate property and
that the funds in the escrow account therefore belonged to her
rather than to Minkovitch.
The Dissolution Action was tried in November and
December 2018. After trial, the court ruled that the couple’s
house had in fact been Lina’s separate property. The court found
that the support payments that Lina received from the escrow
account were therefore from her separate property, and gave
Minkovitch no credit toward his outstanding support obligations
from those payments.
The court found that Minkovitch had paid nothing in
spousal support and only $550 in child support between March 6,
2016, and November 14, 2018. The court consequently found that
2For clarity, we refer to Lina Minkovitch using her first
name. No disrespect is intended.
3
Minkovitch owed Lina a total of $20,638 in child and spousal
support arrears, which the court ordered him to pay at a rate of
$500 per month.
The court ordered future child support payments by
Minkovitch in the amount of $131 per month. However, the court
concluded that the “parties have the same or similar net
spendable incomes,” and therefore did not award any ongoing
spousal support.
On the morning of December 20, 2018, the day after trial
had concluded, Minkovitch sent Mansouri an e-mail informing
him that Minkovitch intended to file a lawsuit against Mansouri
and his firm and demanding that Mansouri preserve relevant
documents. Minkovitch’s e-mail said that the lawsuit would
include claims for breach of fiduciary duty, fraud, embezzlement,
theft, malpractice, perjury, malicious prosecution, intentional
inflicting of emotional distress, and “other claims.”
Mansouri responded with the following e-mail (the
December 20 email):
“Hi Yan- [¶] I’m confused. Weren’t you celebrating outside
the courtroom yesterday? I thought you won a big victory
yesterday? What happened? You seem disregulated this
morning (I know that’s a tough word for you – look it up). Did
you wake up this morning and reality hit you like a ton of bricks?
[¶] Lina and I also want to thank you for producing all of the
evidence that carried the day for us. We could not have done it
without the profit and loss you created or even the deeds and the
loan applications that we did not have until you produced them!
Not to mention your unbelievable testimony! You were our star
witness. You literally would have won if you didn’t do anything.
Lol. [¶] Btw we are now in the process of having DCSS revoke
4
your agent and loan broker license, as well as your passport and
drivers license due to your arrears. Once you lose Your license
you will then lose custody because you can’t drive the girls
anywhere. [¶] Also, you contact me again or come to my office I
will call the police and/or get a restraining order. [¶] Govern
yourself accordingly. [¶] Pedram.”
The trial court entered judgment in the Dissolution Action
on April 2, 2019.
2. Minkovitch’s Complaint
Minkovitch filed his complaint in this action on March 1,
2019. The complaint’s first two causes of action—for assault and
battery and intentional infliction of emotional distress—are
based on an alleged incident that occurred in court on November
13, 2018. Minkovitch claimed that, after checking in with the
court clerk, Mansouri “approached the plaintiff and rolled up
Plaintiff’s motion and Mr. Mansouri’s responsive declaration and
hit plaintiff across the face.”
The complaint’s third, fourth, fifth, and sixth causes of
action were for malicious prosecution, abuse of process,
intentional infliction of emotional distress, and defamation,
respectively. Each of these causes of action was based on the
Contempt OSC, which Minkovitch alleged was “false.” The
complaint alleged that Mansouri had falsely claimed in the
Contempt OSC that “he did not receive any support payment”
even though Mansouri had actually received spousal and child
support payments on behalf of Lina from the escrow fund. The
complaint alleged that, after the hearing on the Contempt OSC,
“the case was dismissed.”
The complaint’s seventh, eighth, and ninth causes of
action—for civil harassment, intentional infliction of emotional
5
distress, and abuse of process—were based upon Mansouri’s
December 20 e-mail. Minkovitch alleged that, after trial,
Mansouri started threatening Minkovitch with “physical harm,”
and that Mansouri’s “verbal threats continued via email.” The
complaint cited Mansouri’s statement in the December 20 e-mail
that he was “in the process” of reporting Minkovitch to the
“department of children services,” to “get plaintiff’s license and
children taken away.” Minkovitch alleged that Mansouri
“fulfilled his threats by giving [the] department of children
services the wrong information where they then implemented the
wrong wage garnishment order.”
3. The Anti-SLAPP Motion
Respondents filed an anti-SLAPP motion, seeking to strike
Minkovitch’s entire complaint. Respondents argued that each of
Minkovitch’s claims arose from conduct that is protected under
section 425.16, subdivision (e), because those claims concerned
Respondents’ “role as counsel for Lisa . . . and would have no
basis in the absence of their protected activities in that role.”
Respondents supported the motion with declarations from
Mansouri and Otero. Otero’s declaration explained the
circumstances and proceedings surrounding the Contempt OSC.
Mansouri’s declaration responded to Minkovitch’s allegations
concerning the November 13, 2018 incident in court and the
December 20 e-mail.
Mansouri denied ever physically striking Minkovitch or
“physically or verbally” threatening him. Mansouri stated that,
while in court on November 13, 2018, he tried to locate
Minkovitch’s counsel. He did not see her, but he did see
Minkovitch. Mansouri attempted to hand Minkovitch the
opposition papers to an ex parte application that Minkovitch had
6
filed, but Minkovitch refused to take the papers. Mansouri said
that he therefore “lightly tossed the papers on [Minkovitch’s] lap
and walked away.”
Mansouri acknowledged stating in his December 20 e-mail
that his client would seek enforcement of the court-ordered child
support, “which could include a revocation of [Minkovitch’s]
driver’s license and real estate license by the Department of
Child Support Services [DCSS].” However, Mansouri testified
that he “had no involvement in any actions or inactions that
might or were taken by the DCSS to enforce the child support
order.”
Minkovitch opposed the anti-SLAPP motion and filed his
own declaration in support of his opposition.3
The trial court granted the motion in part and denied it in
part. The trial court denied the motion with respect to
Minkovitch’s claims concerning the alleged assault in court,
finding that the claims did not arise from protected litigation
activity. The court concluded that “striking someone with rolled
up papers is not litigation-related activities under the anti-
SLAPP statute,” and the fact that the incident occurred in a
courthouse was merely incidental.4
However, the trial court granted the motion with respect to
Minkovitch’s remaining claims. The court found that the
3 Although the trial court’s order refers to Minkovitch’s
declaration, Minkovitch did not include a copy of the declaration
in the appellate record.
4 Respondents did not appeal from this portion of the trial
court’s ruling, and Minkovitch’s first and second causes of action
are therefore not at issue in this appeal. We refer to Minkovitch’s
remaining claims as the “Appealed Claims.”
7
Contempt OSC and the December 20 e-mail were both protected
litigation communications. The court concluded that the
December 20 e-mail “concerns the subject matter of the litigation
and informs Minkovitch of Mansouri’s next steps in the litigation,
which Minkovitch alleges he ‘fulfilled’ by obtaining a wage
garnishment order.”
With respect to the merits of Minkovitch’s Appealed
Claims, the court found that each of those claims except for
Minkovitch’s third cause of action for malicious prosecution was
barred by the litigation privilege established by Civil Code
section 47, subdivision (b). Quoting Bidna v. Rosen (1993) 19
Cal.App.4th 27, 37 (Bidna), the court concluded that Minkovitch
also could not prevail on his malicious prosecution cause of action
because “ ‘no malicious prosecution action may arise out of
unsuccessful family law motions or OSC’s.’ ”
DISCUSSION
1. The Anti-SLAPP Procedure
Section 425.16 provides for a “special motion to strike”
when a plaintiff asserts claims against a person “arising from any
act of that person in furtherance of the person’s right of petition
or free speech under the United States Constitution or the
California Constitution in connection with a public issue.”
(§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (Ibid.)
Thus, ruling on an anti-SLAPP motion involves a two-step
procedure. First, the “moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
396 (Baral).) At this stage, the defendant must make a
8
“threshold showing” that the challenged claims arise from
protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056 (Rusheen).) “A claim arises from protected activity when
that activity underlies or forms the basis for the claim.” (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1062 (Park).)
Second, if the defendant makes such a showing, the
“burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.)
Without resolving evidentiary conflicts, the court determines
“whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment.” (Ibid.) The
plaintiff’s showing must be based upon admissible evidence.
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th
204, 212.)
Section 425.16, subdivision (e) defines the categories of acts
that are in “ ‘furtherance of a person’s right of petition or free
speech.’ ” Those categories include “any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law,” and “any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law.” (§ 425.16, subd. (e)(1)–(2).)
An appellate court reviews the grant or denial of an anti-
SLAPP motion under the de novo standard. (Park, supra, 2
Cal.5th at p. 1067.)
9
2. Minkovitch’s Appealed Claims All Arise From
Protected Conduct
The trial court correctly concluded that Minkovitch’s
Appealed Claims all arise from protected petitioning conduct.
Those claims are based upon statements that were either made
in the course of litigation or in connection with official
proceedings by a government agency.
Minkovitch’s third through sixth causes of action all arise
from Respondents’ filing and prosecution of the Contempt OSC.
Regardless of how it is labeled, each of these causes of action is
based upon Respondents’ alleged false statements in the
Contempt OSC. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 92
[“The anti-SLAPP statute’s definitional focus is not the form of
the plaintiff’s cause of action but, rather, the defendant’s activity
that gives rise to his or her asserted liability”].)5 Pleadings filed
in litigation are a paradigmatic example of protected petitioning
conduct. (See Rusheen, supra, 37 Cal.4th at p. 1056 [an act in
furtherance of the right to petition under section 425.16 “includes
communicative conduct such as the filing, funding, and
prosecution of a civil action”].)
Minkovitch’s seventh, eighth, and ninth causes of action
also arise from litigation conduct. Each of those causes of action
is based upon Mansouri’s statements in the December 20 e-mail.
As the trial court correctly observed, the contents of the e-mail
5 No exception exists under the anti-SLAPP statute for
actions for malicious prosecution or for abuse of process. (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734–735;
Rusheen, supra, 37 Cal.4th at p. 1065.)
10
concern prior court proceedings and Mansouri’s intended next
steps on behalf of his client.
Like pleadings, communications by counsel concerning
ongoing litigation are protected petitioning conduct. “ ‘Under the
plain language of section 425.16, subdivision (e)(1) and (2), as
well as the case law interpreting those provisions, all
communicative acts performed by attorneys as part of their
representation of a client in a judicial proceeding or other
petitioning context are per se protected as petitioning activity by
the anti-SLAPP statute.’ ” (Contreras v. Dowling (2016) 5
Cal.App.5th 394, 408–409 [attorney’s letter to opposing counsel
was “unquestionably protected activity”], quoting Cabral v.
Martins (2009) 177 Cal.App.4th 471, 479–480; see Rusheen,
supra, 37 Cal.4th at p. 1056 [protected conduct “includes
qualifying acts committed by attorneys in representing clients in
litigation”].)6
6 Minkovitch’s complaint contains a vague allegation that
Mansouri “started threatening” him with “physical harm.”
However, the complaint does not contain any specific allegation of
a threat other than the December 20 e-mail. The appellate
record also does not contain any evidence of physical threats. The
trial court stated in its ruling that it “cannot locate the alleged
physical threat that Minkovitch refers to in his Complaint.”
Because Minkovitch did not include his declaration opposing the
anti-SLAPP motion in the appellate record, we must presume
that the trial court was correct in this characterization of the
evidence. (See In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant
has the “burden of showing error by an adequate record”].) Thus,
there is nothing in the record to support a conclusion that
Mansouri allegedly made threats outside the context of litigation.
11
Minkovitch’s claim that Mansouri gave false information to
DCSS also arises from protected litigation conduct. Mansouri
allegedly gave DCSS information about Minkovitch’s child
support obligations as determined by the court in the Dissolution
Action. Minkovitch’s claim therefore challenged statements
made “in connection with” the issues in that action. (See Kenne
v. Stennis (2014) 230 Cal.App.4th 953, 967 (Kenne) [allegedly
false police reports “dealt with efforts at service of papers in an
existing litigation and thus were ‘made in connection with an
issue under consideration or review by a . . . judicial body’ ”],
quoting § 425.16, subd. (e)(2).)
Mansouri also made his challenged statements in
anticipation of official proceedings by DCSS. “Communications
that are preparatory to or in anticipation of commencing official
proceedings come within the protection of the anti-SLAPP
statute.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569–
1570 (Siam) [reports of child abuse to mandatory reporters were
protected under section 425.16, as they were “designed to prompt
action by law enforcement or child welfare agencies”].)
Minkovitch argues that his Appealed Claims did not arise
from conduct that is protected under section 425.16 because
Respondents’ challenged conduct was not actually “in
furtherance” of any constitutional rights. (§ 425.16, subd. (b)(1).)
Minkovitch claims that Respondents’ challenged statements were
not “valid” exercises of any constitutional right because they were
false and unlawful and were intended to intimidate rather than
further any legitimate purpose.
Minkovitch’s argument confuses the first and second step of
the anti-SLAPP analysis. To show that a claim arises from
protected conduct under the first step of the anti-SLAPP
12
procedure, a defendant need not prove that his or her conduct
involved the valid exercise of a constitutional right. “That the
Legislature expressed a concern in the statute’s preamble with
lawsuits that chill valid exercise of First Amendment rights does
not mean that a court may read a separate proof-of-validity
requirement into the operative sections of the statute.
[Citations.] Rather, any ‘claimed illegitimacy of the defendant’s
acts is an issue which the plaintiff must raise and support in the
context of the discharge of the plaintiff’s [secondary] burden to
provide a prima facie showing of the merits of the plaintiff’s
case.’ ” (Navellier v. Sletten, supra, 29 Cal.4th at p. 94, quoting
Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367.)
Our Supreme Court has recognized an exception to this
rule when “either the defendant concedes, or the evidence
conclusively establishes, that the assertedly protected speech or
petition activity was illegal as a matter of law.” (Flatley v. Mauro
(2006) 39 Cal.4th 299, 320 (Flatley).) However, in Flatley the
court emphasized that a plaintiff’s mere allegation of illegality is
not sufficient to preclude a defendant from showing that his or
her challenged conduct is protected under section 425.16: “If,
however, a factual dispute exists about the legitimacy of the
defendant’s conduct, it cannot be resolved within the first step [of
the anti-SLAPP procedure] but must be raised by the plaintiff in
connection with the plaintiff’s burden to show a probability of
prevailing on the merits.” (Id. at p. 316; see Birkner v. Lam
(2007) 156 Cal.App.4th 275, 285 [“ ‘[C]onduct that would
otherwise come within the scope of the anti-SLAPP statute does
not lose its coverage . . . simply because it is alleged to have been
unlawful or unethical’ ”], quoting Kashian v. Harriman (2002) 98
Cal.App.4th 892, 910–911.)
13
Thus, where the alleged illegality of the defendant’s
conduct is disputed, claims that the defendant made false
statements in litigation or to government agencies in connection
with official proceedings will support an anti-SLAPP motion.
(See Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118,
123 [protection under section 425.16 applied “even against
allegations of fraudulent promises made during the settlement
process”]; Kenne, supra, 230 Cal.App.4th at pp. 966–967 [alleged
false police report was within the scope of the anti-SLAPP statute
where defendants denied that the report was false or illegal].)
Respondents did not concede that they engaged in any
unlawful conduct. They also submitted evidence that, at a
minimum, created factual disputes as to whether they had made
any false statements. The exception under Flatley for conduct
that is illegal as a matter of law therefore does not apply here.
3. Minkovitch Failed to Show a Probability of
Success on His Appealed Claims
a. The litigation privilege bars Minkovitch’s
fourth through ninth causes of action
The trial court correctly found that the litigation privilege
precludes each of Minkovitch’s Appealed Claims except for his
third cause of action for malicious prosecution. “Pursuant to
[Civil Code] section 47[, subdivision] (b), the [litigation] privilege
bars a civil action for damages for communications made ‘[i]n any
(1) legislative proceeding, (2) judicial proceeding, (3) in any other
official proceeding authorized by law, or (4) in the initiation or
course of any other proceeding authorized by law and reviewable
pursuant to [statutes governing writs of mandate],’ with certain
statutory exceptions . . . . The privilege established by this
subdivision often is referred to as an ‘absolute’ privilege, and it
14
bars all tort causes of action except a claim for malicious
prosecution.” (Hagberg v. California Federal Bank (2004) 32
Cal.4th 350, 360 (Hagberg), quoting Civ. Code, § 47, subd. (b).)
The litigation privilege applies to communications that
further the objects of litigation, even if those communications
include false claims or perjurious evidence. (Hagberg, supra, 32
Cal.4th at p. 361; Rusheen, supra, 37 Cal.4th at p. 1058.) The
privilege also protects communications “ ‘to or from governmental
officials which may precede the initiation of formal proceedings.’ ”
(Hagberg, at p. 362, quoting Slaughter v. Friedman (1982) 32
Cal.3d 149, 156, italics omitted.)
The litigation privilege therefore clearly applies to
Minkovitch’s claims relating to the Contempt OSC (other than
his cause of action for malicious prosecution). Those claims are
based upon pleadings filed during the Dissolution Action.
The privilege also applies to the statements in Mansouri’s
December 20 e-mail. That e-mail directly related to issues in the
Dissolution Action and concerned Respondents’ next steps with
respect to those issues. (See Silberg v. Anderson (1990) 50 Cal.3d
205, 212 [the litigation privilege applies to “any publication
required or permitted by law in the course of a judicial
proceeding to achieve the objects of the litigation, even though
the publication is made outside the courtroom and no function of
the court or its officers is involved”].)
Minkovitch cites Siam in support of an argument that the
privilege did not protect Mansouri’s allegedly false statements to
DCSS. That decision does not apply here. The court in that case
concluded that the privilege under Civil Code section 47,
subdivision (b) did not protect the defendant’s alleged knowingly
false report of child abuse to police and to mandated reporters of
15
such abuse. (Siam, supra, 130 Cal.App.4th at pp. 1567–1568,
1577.) The court relied on Penal Code section 11172, subdivision
(a), which expressly permits damage claims against voluntary
reporters who knowingly or recklessly make false reports of child
abuse to the authorities. Agreeing with a prior decision, the
court concluded that this specific statute overrides the litigation
privilege with respect to the particular communications that the
statute makes actionable. (Siam, at p. 1577, citing Begier v.
Strom (1996) 46 Cal.App.4th 877, 885.)
Penal Code section 11172 thus falls within the category of
statutes whose provisions permitting a specific legal remedy
(such as criminal sanctions for perjury and filing a false police
report) prevail over the general privilege in Civil Code section 47.
(See Action Apartment Assn., Inc. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1246 [the court’s recognition of crimes
constituting exceptions to the litigation privilege “has been
guided by the ‘rule of statutory construction that particular
provisions will prevail over general provisions’ ”].) Minkovitch
does not cite any statute permitting a claim for damages for false
statements to the DCSS concerning child support obligations.
The exception to the litigation privilege recognized in Siam
therefore does not apply to Mansouri’s alleged statements to
DCSS. (See Kenne, supra, 230 Cal.App.4th at p. 972 [the holding
in Siam did not apply to the defendant’s alleged conduct in
making false police reports because Penal Code section 11172,
subdivision (a) did not apply to such reports].)
16
b. Minkovitch could not prevail on his third
cause of action for malicious prosecution
because such actions may not be based on
family law proceedings
The court in Bidna recognized a “bright line” rule barring
any claim for malicious prosecution based upon unsuccessful
motions or OSC’s in family law proceedings. (Bidna, supra, 19
Cal.App.4th at pp. 29–30, 37.) The court concluded that such a
rule is justified because of (1) the “unique propensity for
bitterness” in family law litigation; (2) the sanctions available in
such litigation to deter improper litigation conduct; and (3) the
need for sensitivity and flexibility in imposing family law
remedies. (Id. at p. 35.)
Minkovitch acknowledges this holding but argues that it
does not apply to contempt proceedings. Minkovitch cites the fact
that the contempt remedy is governed by the Code of Civil
Procedure rather than the Family Code. We reject the argument.
The source of the authority for a contempt remedy is
immaterial. The pertinent fact is that the remedy is sought in a
family law proceeding. A motion or OSC seeking a contempt
order in a family law case, like other types of remedies sought in
such a case, is subject to the concerns the court identified in
Bidna. Family law actions may include remedies that are also
available outside the family law context. (See L.G. v. M.B. (2018)
25 Cal.App.5th 211, 224.) But it is the family law context, not
the statutory source of the remedy, that is the important factor.
The court in Bidna clearly intended to include contempt
motions within the scope of the bright line rule that it created.
The court cited with approval several prior decisions revealing an
“abiding judicial reluctance to entertain malicious prosecution
17
actions which arise either out of motions or OSC’s, or originate in
family law proceedings,” including contempt motions. (See
Bidna, supra, 19 Cal.App.4th at pp. 32–34, citing Twyford v.
Twyford (1976) 63 Cal.App.3d 916; Chauncey v. Niems (1986) 182
Cal.App.3d 967; Green v. Uccelli (1989) 207 Cal.App.3d 1112.)
We also conclude that a malicious prosecution action may
not be predicated on an unsuccessful OSC re contempt in a family
law action. Minkovitch therefore could not show a probability of
success on his third cause of action for malicious prosecution.
DISPOSITION
The trial court’s order is affirmed. Respondents are
entitled to their costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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