Deined § 631.8 Motion Proves Probable Cause

Hart v. Darwish, No. B270513 (D2d2 Jun. 1, 2017)

A suit for malicious prosecution generally cannot lie if the court in the underling case denied the defendant’s summary judgment motion. Essentially, the denial substantiates that plaintiff had a reasonable basis to bring suit, even if it does not ultimately prevail. The court here holds that the same concept applies if the court in the prior case denies a defendant’s motion for judgment under Code of Civil Procedure 631.8.

Section 631.8 applies only in bench trails. it permits a defendant to move for judgment at the close of plaintiff’s evidence. Because there’s no jury, the court can weigh the evidence and judge credibility to determine if the plaintiff has put forth enough to succeed, even without defendant having to put on its own case. Like summary judgment, then, it makes sense that a plaintiff who can get over that standard has enough of a case to have had probable cause to file, even if, at the end of the day, the court rules adversely. That’s what the trial court held in dismissing this malicious prosecution case, and the Court of Appeal affirms.

There’s two ancillary issues: First, plaintiff in this case takes issue with the trial court’s taking judicial notice of the transcript and minute orders in the prior case. A transcript, however, is a record of a California court, and thus judicially noticeable under Evidence Code § 452(d). While consideration of the statements in a transcript remain subject to the hearsay rule, that’s not at issue here. As opposed to mere factual findings, the substance of court’s final ruling has independent legal significance, true or not, so it’s not hearsay.

Second, before Defendants in this case filed their successful motion for judgment on the pleadings based on the prior success in the denied motion for judgment, they had filed an unsuccessful anti-SLAPP motion. It appears the motion was denied because Plaintiff here make a prmia facie case for success, but based on a record that somewhat inexplicably didn’t include the § 631.8 denial. The Court of Appeal affirmed, and now Plaintiffs say that ruling was law of the case. But while the law of the case doctrine says an appellate decision binds subsequent trial court proceedings, it doesn’t apply when the record on the prior appeal is different than that at issue in later proceedings of the trial court. Which is what happened here.

Affirmed.