Head Of Firm Kept In Malicious Prosecution Case, As Well As Associate Attorney Who Said She Was “Just Following Instructions.”

The trial court declined to dismiss a malicious prosecution action against lawyers and their clients who brought a special motion to strike under the antiSLAPP statute [Code of Civil Procedure section 425.16]. The underlying dispute relates to a long-term lease for property used as a mobilehome park. The owners of the property expressed a desire to sell or redevelop, but a long-term lease was an obstacle; the owners brought an action seeking to terminate the lease and the lessees cross-complained for breach of lease and prevailed. The plaintiffs in the malicious prosecution action are 12 limited partner lessees who were dismissed from the underlying case prior to trial. The appellate court affirmed, stating: “We agree with the trial court that the limited partners satisfied all three elements of malicious prosecution: favorable termination, lack of probable cause and malice, as to each defendant.”

One of the issues in the appeal had to do with an associate attorney who is a defendant in the malicious prosecution case. She claimed “she was an associate who was following [partner’s] instructions and nothing more.” The appellate court noted she signed 25 of the Roe amendments and her name appeared in captions of the five deposition notices served on the limited partners, and the court stated: “We recognize that an associate attorney is not in the same position as an attorney associating into a case. There is a clear imbalance of power between an often younger associate and an older partner or supervisor, and situations may arise where an associate is put into a difficult position by questioning a more experienced attorney’s choices. Nonetheless, however, every attorney admitted to practice in this state has independent duties that are not reduced or eliminated because a superior has directed a certain course of action. (See Business & Professions Code sections 6068.) Thus, the fact that she was following a superior’s instructions is not a valid defense to malicious prosecution.” Jay v. Mahaffey (Cal. App. Fourth, Div. 3; August 23, 2013) 218 Cal.App.4th 1522.