At Overlawyered, Walter Olson reports on the latest celebrity lawsuit out of Los Angeles, featuring hirsute gourmand and funnyman Dom DeLuise (seen above as Father Fyodor in Mel Brooks' still-delightful Russian romp, The Twelve Chairs
Notwithstanding various impediments which ordinarily restrain civil defendants from filing countersuits -- and particularly from naming their adversaries' lawyers in those countersuits -- a 'Superior Court judge rejected a motion [last] Friday to throw out comedian Dom DeLuise's lawsuit claiming his former daughter-in-law caused him emotional and financial distress when she sued him for $2 million.'
Walter wonders "what implications there might be for the rights of defendants in other cases" to sue opposing counsel. Here at Decs&Excs we can't resist a LosAngelocentric query such as that, so we did some digging.
Let's take a look at the Complaint in the case of Dom DeLuise vs. Brigitte DeLuise, et al. [PDF].
This is an action for malicious prosecution. According to the Complaint, Brigitte DeLuise is the former spouse of Dom DeLuise's son David. David and Brigitte divorced in 2003. During the divorce proceedings, Brigitte's attorney Steven Zelig filed a separate civil lawsuit on Brigitte's behalf against a number of defendants -- including Dom DeLuise, his wife Carol and their business managers -- seeking damages for alleged fraud, interference with contract, infliction of emotional distress, and so on. This was, per the new Complaint,
an attempt to circumvent the jurisdiction of a contemporaneous family court action with regards to the division of community assets and [to] extort more favorable terms in any settlement
in the divorce case.
At one point, Brigitte's attorneys submitted a "statement of damages" claiming their client had a right to recover some $240,000,000.00.
The outrageousness and objectively excessiveness of the demand [says the malicious prosecution complaint rather ungrammatically] exemplifies the depth of Defendants' bad faith in bringing the prior action.
Eventually, with a potentially dispositive motion for summary judgment pending, Brigitte and her attorneys voluntarily dismissed her case. In May of this year, Dom DeLuise filed his own malicious prosecution action, naming both Brigitte and her attorney Steven Zelig as defendants. Dom DeLuise seeks to recover his out of pocket expenses from defending the allegedly unfounded and malicious prior action, and to impose punitive damages on all those responsible for putting him through it. The basic rule in California (and most other jurisdictions) is that an attorney who files an action on a client's behalf maliciously and without probable cause to do so -- i.e., without an objectively reasonable belief that the action has potential merit -- may be liable alongside the client in a later malicious prosecution action brought by the party that they wrongfully sued.
The motion reported at Overlawyered was brought under California's "Anti-SLAPP" statute. "SLAPP" is an acronym for Strategic Litigation Against Public Participation, and the statute is intended to prevent the targets of public comment from using pointless litigation as a blunt instrument to silence their critics. When a defendant is sued based upon claims "arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue," the defendant may file a "special motion to strike." The motion will be granted, and that offending claims stricken from the case, unless the plaintiff can produce evidence to show that there is a reasonable likelihood that there is factual and legal substance to those claims.
Because a malicious prosecution action depends upon the allegedly malicious litigant having exercised the "right of petition" through the filing of an earlier lawsuit, anti-SLAPP motions have become de rigeur as a response to malicious prosecution complaints, especially when the former plaintiff's former attorney, who actually did the petitioning, is named as a party.
Here, Brigitte DeLuise and her attorney Mr. Zelig argued that Dom DeLuise cannot actually prove his malicious prosecution case. Dom DeLuise through his attorneys submitted evidence that was, Judge Judith Chirlin concluded, sufficient to suggest that he may in fact be able to prove and win his case. Accordingly, the courthouse door will not be slammed at this point and the parties can move on to litigating Dom Deluise's claims on their merits. A good time is not guaranteed for all, or for anyone, in the legal and procedural squabbling that is sure to follow.
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