Appellant employee challenged the order of the Superior Court of the City and County of San Francisco (California), which entered summary judgment against her on her complaint for malicious prosecution against respondent employers and respondent employers' attorneys.
Respondent employers sued appellant employee for fraud and breach of fiduciary duty. An arbitrator found in respondent employers' favor and awarded them damages. Appellant timely filed a request for trial de novo from the arbitration award. After a jury trial, appellant prevailed. Appellant then sued respondent employers and respondent employers' attorneys for malicious prosecution. Appellant claimed that respondents fabricated key evidence in support of the underlying action for fraud and breach of fiduciary duty. The trial Orange county business attorney granted summary judgment in favor of respondents. Appellant challenged that decision. On appeal, the court affirmed. Although appellant's contention of fabrication pointed to a disputed issue of fact, there were undisputed issues of fact in the record that established an objectively reasonable basis for respondent employers' underlying suit against appellant for fraud and breach of fiduciary duty. Thus, appellant failed to meet the threshold requirement for her malicious prosecution action by demonstrating an absence of probable cause. In addition, respondent employers were not required to succeed on their claims in order to establish probable cause.
The court affirmed the order granting summary judgment in favor of respondent employers and respondent employers' attorneys on plaintiff employee's complaint for malicious prosecution. Plaintiff failed to establish the threshold requirement of her malicious prosecution action by demonstrating an absence of probable cause. Thus, respondents were entitled to judgment as a matter of law.
Petitioner attorney sought a writ of review of the determination of the Review Department of the State Bar Court (California) that he be suspended from the practice of law for five years, that the execution of suspension be stayed, and that petitioner be placed on probation on various conditions, including two years' actual suspension. Petitioner asserted that a two-year actual suspension was unwarranted.
Petitioner attorney was found to have misappropriated client trust account funds in two separate client matters, and the Review Department of the State Bar Court recommended an actual suspension for two years. Petitioner suggested an 18-month suspension, stayed, with no actual suspension. Petitioner presented evidence of three types of mitigation: voluntary restitution, improvement of office practices, and testimonials from witnesses as to his moral character. The court held that where petitioner's actions with regard to restitution reflected recognition of his misconduct and an attempt to atone, they properly constituted mitigating circumstances. Nonetheless, in light of the nature of petitioner attorney's misconduct and his record of two prior disciplinary actions, there was no merit in his assertion that the discipline recommended by the review department was excessive. Increasing the punishment, the court imposed a period of three years' actual suspension.
The court increased petitioner attorney's period of actual suspension from the recommended two years to three years for misappropriating client trust funds, even though he presented some evidence in mitigation. The decision was based on the nature of petitioner's misconduct and his past disciplinary record.
