Wednesday, April 17, 2013

Out of the all of the appeals that I have been involved in, the case that is identified in this link is probably the most interesting.  It involved a family dispute over the dinner table, when an irate uncle choked out my client's 14 year old son in response to a verbal exchange between the two.  The police were summoned, and they arrested the uncle for assault on the minor.  The uncle was prosecuted for a misdemeanor and was acquitted following a jury trial, in large part due to his retaining one of the better criminal defense attorneys in the county and due to the failure of the D.A.'s offices to subpoena the minor's grandparents, who witnessed the altercation but who reside up in Northern California. The D.A.'s offices apparently won't incur travel expenses for witnesses unless it is a felony matter.  Thereafter, the uncle sued my client and his girlfriend for malicious prosecution and false arrest, contending that they maliciously filed a false police report against him.  I filed a special motion to strike the civil lawsuit under C.C.P. sec. 425.16, contending that the actions of the clients in calling the police was a privileged act of petition of grievances under the code section, such that it could not constitute a basis for a civil lawsuit.  We further contended that even though the uncle was claiming that he choked the minor in self-defense, that there were sufficient objective facts to justify the call to the police by the clients.  The trial court disagreed and denied my motion, at which time I took it up on appeal and the appellate court agreed with me, which resulted in the dismissal of the malicious prosecution action and an award of attorney's fees and costs to my clients.  The opinion is in the link and makes for interesting reading even if you are not an attorney.  The bottom-line is that pursuing malicious prosecution cases are fraught with peril, and that you better have the case thoroughly analyzed as to your chances for success if you intend to pursue such an action.