Letter to the Editor

LETTERS TO THE EDITOR COLUMN

I take only limited exception to Steve Kaus' article that advises one to "Think twice before suing for malicious prosecution" (May 31). I also find his reference to the 2nd Circuit's decision in JSJ Limited Partnership v. Mehrban, 2012 DJDAR 6459 (Cal. App. 2d Dist., May 17, 2012), to be somewhat ironic.

On May 24, in an unpublished decision in Miracle v. Julie Mehrban (2d Dist., Division 7, May 24, 2012), a judgment against Ms. Mehrban for malicious prosecution, that included $30,000 in punitive damages, was affirmed. As explained by the appellate court, Ms. Mehrban's actions were outrageous (especially considering that she also is an attorney). Morse Mehrban had left a letter on Ms. Miracle's car (and on other cars parked near his home) in which he demanded that all persons who walked dogs by his house cease usuing his street and threatened the "high cost of litigation" if they did not do so. The letter also stated that: "every license plate number on every vehicle parked near the end of Casiano Road will be recorded and forwarded to the police for tracing."

As the Court of Appeals noted:

"During discovery in the [underlying] nuisance litigation it was revealed that the Mehrbans had learned the identities and the addresses of the individuals named in the complaint, including [Ms. Miracle's] through the use of attorney information request forms filed with the California Department of Motor Vehicles (DMV). The form, intended for the investigation of vehicle accidents, requires an attorney to describe the vehicle-related incident for which the information is sought and to declare under penalty of perjury that the information requested will be used only in relation to that incident."

The form submitted to obtain Ms. Miracle's information falsely accused her of running over the Mehrban's dog and driving away. In other forms filed with the DMV, Morse Mehrban (or at least over his signature) falsely accused drivers of other hit and run accidents.

After Julie Mehrban, at her deposition, could not identify Ms. Miracle or confirm that she had done anything inappropriate, Ms. Mehrban dismissed her action shortly before trial. The trial court appropriately found that Ms. Miracle was the prevailing party and that the underlying complaint had been initiated without probable cause and with malice. It awarded damages, including $30,000 in punitive damages, which was affirmed on appeal.

Thus, although Mr. Kaus correctly points out that a practitioner should be careful before filing a malicious prosecution action, where the facts support a malicious prosecution claim, it is important that attorneys not shrink from assisting a client who has been wronged - especially where the party or attorney initiating the underlying litigation is a serial litigator who uses litigation as a bully uses threats of force.

RICHARD C. LEONARD

LEONARD, DICKER & SCHREIBER LLP