Long v. Safi

1

RICHARD LONG Plaintiff and Respondent, v. SID M. SAFI, Defendant and Appellant.

B312240

California Court of Appeals, Second District, First Division

December 20, 2022

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Los Angeles County No 20STCV29401 Malcolm H. Mackey, Judge. Reversed.

Sid M Safi, in pro. per., for Defendant and Appellant.

The Law Office of Cliff Dean Schneider and Cliff Dean Schneider for Plaintiff and Respondent.

ROTHSCHILD, P. J.

Appellant Sid. M. Safi (Safi) seeks reversal of the portion of the trial court's February 5, 2021 order denying his Code of Civil Procedure^[1] section 425.16 "anti-SLAPP" special motion to strike respondent Richard Long's (Long) claim for malicious prosecution.^[2] Because we conclude that Long has failed to demonstrate a probability of prevailing on the first element of his malicious prosecution claim-namely that the action underlying his claim concluded in a legal termination favorable to him-we reverse and remand the matter with instructions to enter judgment in favor of Safi^[3] and to award Safi attorney fees, in an amount to be determined by the trial court.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

This appeal arises out of a decade-long dispute between the parties concerning a $500 loan. Safi-who owns a pigeon farm and sells "high quality, well-bred pigeons known as '[f]ancy [p]igeons' "-contends that, in 2012, he and Long "entered into a [written] contract as part of a more expansive deal for internet fancy pigeon sales." According to Safi, Long promised to provide him with $500 and 100 fancy pigeons, in exchange for Safi's agreement to share a portion of the profits from his pigeon "sales services and consignment process." Long provided the $500; however, Safi maintains that Long failed to provide the promised pigeons. Safi contends that, between 2013 and 2016, he therefore attempted to return the $500, but that Long refused to accept repayment. Instead, Long "attempted to charge [Safi] a daily high interest rate," demanding "$10,000 as repayment for [the] $500 loan." Safi refused to pay the $10,000 sum that Long demanded.

Long denies that the parties had any agreement to enter into a joint venture involving fancy pigeons.^[4] He maintains that, in 2012, Safi's business "had financial difficulties," and Safi therefore "asked [Long] for help in the form of a short-term [$500] loan with a 20 [percent] interest rate." Long contends that "[i]nitially, Safi said that he w[ould] be able to payback [sic] the loan in 10 days, but he failed to do [so]."

The parties' dispute culminated in a series of three litigation matters: (1) a January 20, 2016 small claims action by Long against Safi (the small claims action);^[5] (2) an April 8, 2016 Los Angeles County Superior Court case alleging fraud and other claims by Safi against Long (the 2016 fraud action);^[6]and (3) the August 4, 2020 Los Angeles County Superior Court action underlying this appeal (the malicious prosecution action), in which Long alleges, inter alia, a cause of action for malicious prosecution against Safi on the basis of the 2016 fraud action and seeks more than $5 million in damages.

A. Long's Small Claims Action

On January 20, 2016, Long filed the small claims action against Safi. Long sought not only the return of the $500 loan amount, but $10,000 in total damages arising from Safi's alleged failure to pay interest and late fee charges in connection with the loan. Long alleged that these charges accumulated at a rate of "$10.00 a day from December 1, 2012 to January 20, 2016 . . . according to [Safi's] own contract."

The small claims court heard Long's claims on April 12, 2016, and entered a judgment in Long's favor that same day in the amount of $376.77 in principal and $90.00 in costs-a total of $466.77.^[7] Although the record contains no transcript of the proceeding, Safi contends-and Long does not dispute-that "[t]he [small claims] judge severely admonished Long and told him that he could not collect $9,700 in liquidated damages on a loan of approximately $375."

B. Safi's 2016 Fraud Action

On April 8, 2016-four days prior to the April 12, 2016 hearing in Long's small claims case-Safi filed the 2016 fraud action. His complaint demanded a jury trial and asserted seven causes of action against Long: (1) fraud, (2) usury, (3) extortion, (4) breach of contract, (5) breach of the covenant of good faith, (6) defamation, and (7) intentional infliction of emotional distress.^[8] The thrust of Safi's allegations in support of these claims was that Long had defrauded him by reneging on the parties' joint pigeon venture agreement and then attempting to charge Safi usurious interest and late fees in connection with the $500 loan. Safi alleged further that Long had failed to perform in connection with other pigeon sales contracts dating back to 2009, that Long had falsely accused Safi of misconduct relating to pigeon shows, and that Long had improperly excluded Safi from pigeon shows "because of [Safi's] national origin and religion."^[9]

Safi, who Long alleges is a paralegal, represented himself throughout the duration of the 2016 fraud action. Safi maintains that he filed the 2016 action as a separate case against Long in the superior court only because he "was informed" that he could not countersue Long in the small claims court action. On April 11, 2016, Safi requested that the court consolidate his 2016 fraud action with Long's small claims case so that a single judge could hear both matters. The court denied his request.

The 2016 fraud action proceeded for nearly two years, with trial set for March 21, 2018. Long, who was represented by counsel, made several motions to compel discovery, as well as two motions for terminating sanctions. Although the trial court ordered Safi to provide additional discovery, it denied Long's requests for terminating sanctions. Long contends that he also served a demand for a bill of particulars, to which Safi allegedly failed to respond. Finally, approximately one month prior to the scheduled trial date, on February 20, 2018, Long filed three motions in limine: (1) a motion to exclude all evidence of any contract between the parties or debt allegedly owed by Long to Safi, (2) a motion to exclude all evidence as barred by the doctrines of res judicata and collateral estoppel, and (3) a motion to exclude any evidence sought or obtained after the close of discovery.

On March 21, 2018, the parties appeared for a jury trial, but trial did not begin. Instead, the court conducted a hearing at which it denied Safi's request for a jury trial, finding that Safi had not posted jury fees, "ha[d] untimely sought an additional fee waiver for waiver of jury fees," and that he had not been "diligent in preserving [his] right to a jury trial." The court then continued the trial to March 23, 2018. In addition, the court denied Long's first and third motions in limine, but took under submission Long's motion in limine to exclude all evidence on the grounds of res judicata and collateral estoppel.

Safi contends that, on March 23, 2018, he "appeared for what [he] thought would be the start of [his] trial. But trial was not held." Instead-despite previously denying the motions for terminating sanctions and the motion in limine to exclude evidence produced after the close of discovery-the court granted Long's oral motion to preclude Safi from testifying because certain date ranges set forth in [Safi's] discovery responses allegedly were "vague and ambiguous." Safi therefore "never was given the opportunity to be sworn in and provide testimony....In addition, the court found that [Safi's] claims were barred by the prior adjudication in the small claims court by virtue of res judicata and collateral estoppel." Safi asserts that "[t]he entire proceeding on March 23, 2018 lasted no more than ten minutes."

In his declaration in opposition to Safi's special motion to strike, Long agrees nearly verbatim with Safi's description of the March 23 proceeding. In opposition to Safi's subsequent motions for a new trial and judgment notwithstanding the verdict (discussed post), however, Long's then-attorney I. Donald Weissman submitted two virtually identical declarations (the Weissman declarations) in which he attests that, prior to dismissing Safi's claims, the trial court permitted Safi to make an offer of proof "regarding his testimony and the dates the events [relevant to his claims] occurred."^[10] Through the Weissman declarations, Long asserts that, in response to his objection to Safi's presentation of "any evidence concerning his claims beyond th[at] stated in [Safi's] responses to discovery," the court indicated that its "tentative ruling was to sustain [Long's] objections to testimony of any certain date that contradict[ed] [Safi's] discovery responses." Long maintains that "[t]he court [then] asked [Safi] for an offer of proof regarding his testimony and the dates the events occurred." (Italics omitted.) According to Long, Safi stated in his offer of proof that the parties' joint pigeon venture agreement "started in 2012," that Long "kept promising but did not perform," and that the terms of the parties' 2012 agreement were usurious.

Long contends that, "[a]fter [Safi's] offer of proof, the [c]ourt . . . sustained [Long's] objections, explaining [Safi] gave a vague span of years as to when events occurred, or damages occurred. The same vague responses were given to each inquiry. [Long] objected to [Safi's] testifying to any more than a span of years. [Safi's] offer of proof to show more specific dates was not allowed." (Italics omitted.) In addition, the court found that "[t]he usury cause of action was impliedly ruled against [Safi] in the small...