Michael Slater v. Doe, et al.
Published: Mar. 11, 2000 | Result Date: Apr. 28, 1999 | Filing Date: Jan. 1, 1900 |Case number: BC035310 Verdict – $0
Judge
Court
L.A. Superior Central
Attorneys
Plaintiff
Defendant
Facts
In 1983, Michael Slater and Terrence Krell entered into a partnership agreement to open a software store. Shortly
before they opened for business, Slater was involved in an automobile accident. The personal injury plaintiff
sued Slater, who did not have automobile insurance.
Slater hired attorney No. 1 for the partnership, to represent him in the personal injury lawsuit. Krell and Slater
had a falling out, and an agreement was reached whereby Krell purchased SlaterÆs partnership interest.
After the buy-out, Slater fired attorney No. 1 and hired a new attorney to represent him in the personal injury
case. In that case, both Slater and the personal injury plaintiff contended that Slater was an employee in the
course and scope of his employment at the time of the automobile accident. As a result, the partnership and
Krell were named as defendants in the personal injury lawsuit.
The personal injury case resulted in settlement. Thereafter, Krell hired Fireman to bring a fraud action against
Slater.
The action alleged that Slater fraudulently concealed, until after the buy-out of his partnership interest, that he
was in the course and scope of his employment at the time of the accident. KrellÆs complaint also alleged that
Slater had conspired to interfere with KrellÆs operation of the partnership. Slater filed a cross-complaint.
Fireman was disqualified from representing Krell, based on his prior representation of Slater, and replaced by a
second attorney. The defendant claimed that attorney took no action in the 18 months he represented Krell.
When the second attorney ended his representation after 18 months, Krell hired a third attorney, David
Durchfort. Durchfort substituted into the case on the eve of a hearing on a motion to dismiss for failure to
prosecute. The case was referred to arbitration, resulting in a defense award for Slater on KrellÆs complaint and
a defense award for Krell on SlaterÆs cross-complaint.
Slater requested, and was granted, a trial de novo. Durchfort did not want to pursue KrellÆs case, so he took no
action to set the case for trial. The court dismissed KrellÆs complaint for failure to bring to trial within five
years, but retained SlaterÆs cross-complaint.
On the eve of trial on SlaterÆs cross-complaint, a settlement was reached, whereby Krell paid Slater an
undisclosed sum and was released from liability for malicious prosecution. Slater then brought this action for
malicious prosecution against attorney No. 1 and Durchfort. DurchfortÆs demurrer to SlaterÆs malicious
prosecution complaint was sustained.
On appeal, the Court of Appeal overturned the trial courtÆs order sustaining the demurrer and reinstated the
lawsuit, holding that allegations that the attorney did not conduct adequate investigation was sufficient to plead
the element of malice in a malicious prosecution action.
The matter settled before trial with attorney No. 1Æs estate. The case against Durchfort
went to trial.
Settlement Discussions
Plaintiff Slater made a settlement demand for $50,000. Defendant Durchfort made a settlement offer of $5,000.
Damages
The plaintiff claimed economic damages for attorney fees incurred, plus general damages for emotional distress.
Injuries
The plaintiff (Slater) claimed he suffered emotional distress in defending the underlying action.
Other Information
At trial, the court precluded Durchfort from introducing evidence of any investigation he conducted, or the conclusions drawn therefrom, because of alleged discovery abuses by Durchfort while represented by earlier counsel. Slater claimed Durchfort alleged he conducted investigation, but refused to describe it in response to discovery, thus resulting in the evidentiary sanction. Following the close of evidence, the trial court ruled in favor of Slater that, as a matter of law, Durchfort had been instrumental in the maintenance of KrellÆs case against Slater; that there was no probable cause for the allegations in the Krell lawsuit; and that the Krell action had terminated in SlaterÆs favor as a result of the dismissal for failure to prosecute. The court also instructed the jury that it could infer the "malice" element of a malicious prosecution claim from the lack of probable cause. The case went to the jury solely on the questions of whether Durchfort had acted with malice, and if so, how much Slater should be awarded in damages.
Deliberation
three hours
Poll
10-2 (no malice)
Length
six days
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