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Lerer v. State Compensation Insurance Fund2/7/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs, Harvey L. Lerer (Lerer) and his law corporations Harvey L. Lerer, Inc., and Harvey Lerer and Associates, appeal from summary judgments, granted first to defendants State Compensation Insurance Fund (SCIF) and Philip Mahaffey, a SCIF attorney, and subsequently to defendant Attorney John Paladin, in a suit for malicious prosecution of a prior action for legal malpractice and fraud. Appellants contend that defendants were not entitled to obtain summary judgment after having moved for it previously, and that the court erred in determining that the underlying action's fraud cause of action was grounded in probable cause, and that plaintiffs had failed to show malice. We affirm the judgments.
FACTUAL BACKGROUND
The underlying action (the malpractice case) arose from Lerer's representation of one Ralph Padilla in a product liability case, after Padilla in December 1986 was injured in a fall from a telephone pole, on which he had been working for a cable television company. In 1987, Lerer became associated as "of counsel" with the law firm that was representing Padilla in workers' compensation proceedings (the firm). SCIF was the workers' compensation insurer for Padilla's employer.
In November 1987, Lerer's professional corporation and the firm together filed a negligence and product liability complaint for Padilla and his wife, alleging that Padilla's injuries had been caused by a defective safety strap, associated with the harness belt he had been wearing. The complaint originally named only the apparent manufacturer of the harness belt, Klein Tools, Inc. (Klein). In April 1988, Lerer added, by amendment for a fictitious name, the manufacturer of the safety strap, W.M. Bashlin Co. (Bashlin).
On September 16, 1988, Lerer wrote to Padilla that Lerer and the firm had insufficient evidence of the origin of the belt and safety strap, or of a defect in them, to proceed further with the civil case. Lerer enclosed a request for dismissal, as well as a substitution of attorney form, "should you wish to proceed with the case." Padilla signed the substitution, and in mid-1990 defendant John Paladin also substituted for the firm as attorney for Padilla.
At the trial, in October 1992, the court separately heard Bashlin's statute of limitations defense. The court found that within months of the accident Padilla had turned over to his attorneys a safety strap tagged with Bashlin's name, and they therefore had not been ignorant of Bashlin's identity and entitled to name it as a defendant, under Code of Civil Procedure section 474, more than a year after the accident. The court similarly ruled with respect to the National Cable Television Institute, Inc. (NCTI), which had been named under section 474 in September 1990. Judgment was entered for Bashlin and NCTI on October 8, 1992. Having previously settled with Klein, Padilla obtained no relief through the trial.
On October 3, 1993, Padilla and his wife, again represented by Paladin, filed the malpractice case, against Lerer, one of his professional corporations, and an associate attorney, as well as the firm and certain of its lawyers. The complaint alleged that the malpractice defendants had negligently named Bashlin and NCTI after expiration of the statute of limitations, resulting in loss of the product liability case. The complaint al
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