Drummond v. Desmarais, No. H031659
In a malicious prosecution action against plaintiffs' former attorney, judgment dismissing the action is affirmed where: 1) the trial court did not err in granting the special motion to strike the action for malicious prosecution based upon defendant's probate petition for fees, as plaintiffs cannot establish a favorable termination of the matter on the merits; and 2) the court did not err in dismissing plaintiffs' malicious prosecution suit based on defendant's own malicious prosecution complaint against them because, although the evidence supports a finding that defendant acted maliciously and without probable cause in suing his clients, defendant's voluntary dismissal of the suit was a technical disposition and not a termination on the merits in plaintiffs' favor as required.
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APPEAL from Santa Clara County Super. Ct. No. CV068316.
SIXTH APPELLATE DISTRICT
Filed August 5, 2009
Before RUSHING, P.J., PREMO, J., ELIA, J.
Opinion by RUSHING, P.J.
For Plaintiff: Law Offices of Michael T. Morrissey, Michael T. Morrissey.
For Defendant: Willoughby, Stuart & Bening, Bradley A. Bening, Ellyn E. Nesbit, Law Offices of Michael G. Desmarais, Michael G. Desmarias.
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