Plaintiff attorney sued defendant client for malicious prosecution and abuse of process. The client filed a special motion to strike the complaint pursuant to Code Civ. Proc., § 425.16. The Los Angeles County Superior Court, California, granted the client’s special motion to strike the abuse of process claim, but denied the motion as to the malicious prosecution claim. The client appealed.
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The attorney had sued his client for unpaid legal fees and costs incurred in a real estate matter. The client responded by suing the attorney for breach of contract and legal malpractice. However, the client refused to be deposed and his lawsuit was dismissed as a discovery sanction. The instant court concluded that the client’s refusal to be deposed reasonably could be construed as a concession that his claims for breach of contract and malpractice lacked merit. The client’s conduct suggested he knew the attorney did not commit malpractice or breach of contract. No reasonable attorney would have pursued a claim for breach of contract or malpractice against the attorney. Therefore, the client’s suit was filed without probable cause. The record was sufficient to permit a reasonable trier of fact to infer the client sued the attorney in retaliation for the attorney’s attempt to recover unpaid fees and costs. Therefore, a trier of fact could reasonably infer the client filed his suit with malice. Because the attorney established a probability of prevailing on his malicious prosecution claim, the trial court properly denied the client’s special motion to strike that cause of action.
The judgment was affirmed.