Filed 1/19/21 Pesci v. Hobbs CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CHERYL PESCI et al.,
Plaintiffs and Appellants, G059073
v. (Super. Ct. No. 30-2019-01074366)
CAITLYN HOBBS et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Nathan R.
Scott, Judge. Affirmed.
Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiffs and
Appellants.
Murchison & Cumming, Lisa D. Angelo and Matthew E. Voss for
Defendants and Respondents.
Cheryl Pesci (Cheryl), Patti Johnson, and Marianne Klee (Plaintiffs) appeal
from the trial court’s order granting Laura Zamora, Caitlyn Hobbs, and Keith Salek’s
(Defendants) special motion to strike1 a malicious prosecution cause of action. Plaintiffs
argue the court erred by concluding they did not demonstrate a probability of prevailing.
We disagree and affirm the order.
FACTS
Robert Pesci (Robert), a nonagenarian, suffered from advanced dementia.
Plaintiffs are three of Robert’s children who handled his affairs. Jim Pesci (Jim),
Plaintiffs’ brother, resided with his father, Robert. Laura Zamora was an employee of
Compassionate Heart Senior Care, Inc. dba Home Instead Senior Care Franchise #35
(Home Instead). Home Instead assigned Zamora to care for Robert at his home. Home
Instead advertised it provided caregivers who were trained to care for patients suffering
from dementia, but Zamora was not trained to do that.
The origin of this litigation was an incident Defendants claimed occurred
when Zamora was caring for Robert one evening while Jim was away. Zamora alleged
Robert “intentionally” fell to the ground. When Zamora tried to help Robert, her
attorneys alleged in the complaint that he “sexually molested her.”
Zamora retained Salek and Hobbs to represent her. They filed a complaint
against Robert, Jim, Home Instead, and its parent company alleging 15 causes of action,
including sexual battery and assault, hostile work environment, and wrongful discharge.
Robert could not remember anything, and Plaintiffs were distraught over the allegations
against their father and brother. Cheryl was appointed Robert’s guardian ad litem.
1
A special motion to strike is also known as an anti-SLAPP (Strategic
Lawsuit Against Public Participation) motion. (Code Civ. Proc., § 425.16, all further
statutory references are to the Code of Civil Procedure; Sweetwater Union High School
Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 938, fn. 5 (Sweetwater).)
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Robert’s homeowner’s insurance provider denied coverage because the alleged
misconduct was intentional. Plaintiffs used their own funds to hire an attorney to
represent Robert and Jim.
At Zamora’s deposition, she explained how on the night in question, Robert
fell, she tried to help him up, and he grabbed her arm tightly, but she could not help him
up. He eventually got up on his own. Robert, who was angry, made inappropriate sexual
comments to her as he had once before. At some point, Robert fondled himself. She
never claimed Robert sexually assaulted her, and she admitted she never called the
police. Less than two weeks after Zamora’s deposition, Defendants dismissed the case
with prejudice.
Plaintiffs, Robert, and Jim filed a complaint against Defendants for
malicious prosecution, fraud, and elder abuse. Defendants filed a special motion strike.
Plaintiffs filed an opposition. The trial court denied the special motion to strike as to
Robert and Jim, but granted it as to Plaintiffs. The court reasoned Defendants
demonstrated the malicious prosecution action arose from protected conduct. The court
opined Robert and Jim demonstrated a probability of prevailing on their malicious
prosecution cause of action but Plaintiffs did not because they were not parties to the
action, and thus, it was not resolved in their favor.
DISCUSSION
“Resolution of an anti-SLAPP motion involves two steps. First, the
defendant must establish that the challenged claim arises from activity protected by
section 425.16. [Citation.] If the defendant makes the required showing, the burden
shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of
success.” (Sweetwater, supra, 6 Cal.5th at p. 940.) “In making its determination, the
court shall consider the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) Our review
is de novo. (Sweetwater, supra, 6 Cal.5th at p. 940.)
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I. First Prong
To make a showing under the first prong, the defendant must establish the
cause of action arises from protected activity. (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1067; § 425.16, subd. (e).) Here, Plaintiffs do not
dispute their malicious prosecution cause of action arises from protected activity and
section 425.16 applies. Thus, we proceed to the second prong to determine whether they
demonstrated a probability of prevailing.
II. Second Prong
If the defendant satisfies the first prong, the burden shifts to the plaintiff to
establish the claim’s merit by demonstrating “there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).) The plaintiff must demonstrate each
cause of action is both legally sufficient and supported by a prima facie showing of facts
sufficient to support a judgment. (Navellier v. Sletten (2002) 29 Cal.4th 82, 93.) “A
plaintiff must plead and prove three elements to establish the tort of malicious
prosecution: a lawsuit ‘(1) was commenced by or at the direction of the defendant and
was pursued to a legal termination favorable to the plaintiff; (2) was brought without
probable cause; and (3) was initiated with malice.’ [Citation.]” (Nunez v. Pennisi (2015)
241 Cal.App.4th 861, 872-873, italics added.)
Here, Plaintiffs failed to demonstrate a probability of prevailing on their
malicious prosecution cause of action. The underlying action was not pursued to a legal
termination favorable to Plaintiffs. Plaintiffs were not parties to the underlying action.
Defendant’s 15-count complaint was against Robert, Jim, and Home Instead. It did not
name Plaintiffs. Recognizing there is no case law supporting the conclusion they have
standing, but countering there is no case law precluding it, Plaintiffs resort primarily to
public policy.
Plaintiffs rely on several cases to advance their policy argument. (Gregory
v. Cott (2014) 59 Cal.4th 996, 999-1000 [whether Alzheimer patients liable for injuries
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they inflict on health care workers]; Marlene F. v. Affiliated Psychiatric Medical Clinic,
Inc. (1989) 48 Cal.3d 583, 591 [negligent infliction of emotional distress causes of action
arising from family member’s molestation]; Molien v. Kaiser Foundation Hospitals
(1980) 27 Cal.3d 916, 923 [loss of consortium and negligent infliction of emotional
distress causes of action arising from family member’s misdiagnosis]; Dillon v. Legg
(1968) 68 Cal.2d 728, 746 [bystander liability in negligence action arising from family
member’s death].) None of these cases, however, concerned section 425.16 or a
malicious prosecution cause of action. We decline Plaintiffs’ invitation to afford
standing in a malicious prosecution case in the section 425.16 context to those who were
not parties to the underlying litigation.
DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal.
O’LEARY, P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
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