Ross

Ross v. Kish

Caution
145 Cal. App. 4th 188·2006 Cal. App. LEXIS 1867·2006 Daily Journal DAR 15544·51 Cal. Rptr. 3d 484·2006 Cal. Daily Op. Serv. 10901
Court of Appeal of CaliforniaNovember 28, 2006B191132California6,097 words

Opinion

Opinion

Klein, J.

Thomas E. Kish appeals the denial of a special motion to strike (Code Civ. Proc., § 425.16) a cause of action for malicious prosecution filed against him by his former attorney, Wesley Barrett “Barry” Ross. We affirm.

SUMMARY

Ross represented Kish in a real estate matter in which buyers of Kish’s real property sought between $325,000 and $435,000 in damages from Kish and others. The matter was resolved at mediation with Kish contributing $25,000 toward a total settlement of $120,000. Ross thereafter sued Kish in small claims court for approximately $4,000 in unpaid legal fees. Kish responded by suing Ross in superior court for breach of contract and legal malpractice. However, Kish refused to be deposed and his lawsuit was dismissed as a discovery sanction. Ross then sued Kish for malicious prosecution.

Kish filed a special motion to strike Ross’s lawsuit under section 425.16, subdivision (b)(1), the anti-SLAPP, (strategic lawsuit against public participation) statute which provides that a cause of action arising from constitutionally protected speech is subject to a special motion to strike unless the plaintiff establishes the probability of prevailing on the claim.…

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