Thursday, June 4, 2015

Now that's Customer Service...

Greene v. Bank of Am., No. B268021 (D2d5, as modified May 28, 2015)
Plaintiff, rebuffed by a bank teller who wouldn’t cash a check drawn from the bank without opening an account, supposedly threatened to blow up the bank. Supposedly. But when he was arrested and tried for that, he was acquitted. He then sued the bank and two employees for malicious prosecution for giving a phony bomb threat report to the police. 

Earlier in the case, defendants filed an anti-SLAPP motion, which the trial court granted. But the court of appeal reversed, finding that plaintiff had come forward with prima facie evidence that—if believed—showed a lack of probable cause for the bank to call the cops for the bomb threat. On remand, the bank moved for summary judgment, arguing that plaintiff was collaterally estopped from arguing a lack of probably cause because, at his preliminary hearing in his criminal case, the trial court found that plaintiff’s account was not credible and thus that there was probable cause to proceed. (Even though plaintiff was ultimately acquitted.) The trial court granted the motion and plaintiff appealed for a second time.

Plaintiff makes a weak argument on law of the case. He says that the anti-SLAPP appeal resolved the collateral estoppel point. But the record of the former appeal really doesn’t support that the appeal resolved anything about the preclusive effect of the prelim.

On the prelim point, it seemed intuitive to me that a prelim followed by an acquittal can’t have any preclusive effect because it’s not an order subsumed into a final judgment. Indeed, that seems particularly apt because an acquitted defendant has no chance to appeal an adverse interlocutory ruling. But my gut is wrong. Apparently, because the Penal Code permits interim review of a probable cause finding by way of a motion to set aside and appeal through writ of prohibition. Indeed, this is the only way to obtain review of that finding. So a finding of probable cause gets treated as final for preclusion purposes even when followed by an acquittal. Although the opinion here doesn’t make it particularly clear, a host of state and federal cases say that.

There is an exception when there are assertions that evidence was suppressed at the preliminary hearing. But those don’t apply here. The trial court heard the same evidence it would hear in this case, and on that evidence, found the bank teller credible enough to find probable cause. Finally, in language inserted on rehearing, the court notes that plaintiff had a full and fair hearing and that the equitable public policy limitations on the application of collateral estoppel were not implicated. Plaintiff is thus collaterally estopped to claim otherwise in a civil case.


*On rehearing, the court modified its opinion to account for 

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