Naumann

I.

INTRODUCTION

This appeal arises out of a malicious prosecution action filed by plaintiff Sycamore Ridge Apartments, LLC (Sycamore Ridge), against defendants Shirley Powell, William H. Naumann, Christopher H. Hagen, Lisa D. Stepp, Steven M. Nunoz, and Naumann & Levine, LLP (collectively Naumann *1391 defendants), and Jeffrey LaFave and LaFave & Rice (jointly LaFave defendants). The malicious prosecution action arises from Powell’s participation as a plaintiff in Gonzalez v. Sycamore Ridge Apartments LLC (Super. Ct. San Diego County, 2003, No. GIC812933) (Gonzalez).

The Naumann attorneys filed the complaint in Gonzalez on behalf of 45 individual plaintiffs, including Powell, who had lived and/or worked at Sycamore Ridge. The complaint set forth 18 causes of action alleging that Sycamore Ridge failed to maintain the apartments in a habitable condition, and that Sycamore Ridge engaged in unfair business practices pertaining both to tenants and to former Sycamore Ridge employees. Through discovery it became apparent that Powell’s main contention involved Sycamore Ridge’s failure to return her security deposit when she moved out of the complex. After Sycamore Ridge…

In this malicious prosecution case, the trial court correctly assessed the likelihood plaintiff could prevail against two sets of attorneys. The trial court properly concluded plaintiff had met its burden of proof to show likelihood of prevailing against the Naumann attorneys who filed the underlying lawsuit and who prosecuted it until the lawsuit was ultimately dismissed. The majority of this court correctly affirms the decision as to the Naumann attorneys. I agree completely with the majority as to those attorneys.

The case against the LaFave attorneys, however, does not begin to show a probability of success. The underlying case giving rise to the malicious prosecution allegation was filed by the Naumann attorneys in June 2003. The LaFave group was not involved in the filing of that lawsuit. Indeed the LaFave group first associated into the underlying case on October 5, 2004, for the limited purpose of dealing with any issues regarding mold in the apartments. Their appearance was well after the filing of the action and after all discovery responses were sent out.

The majority points out that in October 2004 the Naumann attorneys wrote to their client, Ms. Powell, confirming a…

This appeal arises out of a malicious prosecution action filed by plaintiff Sycamore Ridge Apartments, LLC (Sycamore Ridge) against defendants Shirley Powell, William H. Naumann, Christopher H. Hagen, Lisa D. Stepp, Steven M. Nunoz, and Naumann & Levine LLP (collectively Naumann defendants), and Jeffrey LaFave and LaFave & Rice (jointly LaFave defendants). The malicious prosecution action arises from Powell's participation as a plaintiff in Gonzalez, et al. v. Sycamore Ridge Apartments LLC, et al. (Case No. GIC812933) ( Gonzalez).

The Naumann attorneys filed the complaint in Gonzalez on behalf of 45 individual plaintiffs, including Powell, who had lived and/or worked at Sycamore Ridge. The complaint set forth 18 causes of action alleging that Sycamore Ridge failed to maintain the apartments in a habitable condition, and that Sycamore Ridge engaged in unfair business practices pertaining both to tenants and to former Sycamore Ridge employees. Through discovery it became apparent that Powell's main contention involved Sycamore Ridge's failure to return her security deposit when she moved out of the complex. After Sycamore Ridge noticed a deposition date for Powell, she…