Kendall-Jackson Winery, Ltd. v. Superior Court (2000)

KENDALL-JACKSON WINERY, LTD., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; E. & J. GALLO WINERY, Real Party in Interest.

[Modification of opinion (76 Cal.App.4th 970) on denial of petition for rehearing.]

THAXTER, Acting P.J.-It is ordered that the opinion filed herein on December 3, 1999 [__ Cal.App.4th __] be modified in the following particulars:

1. Under part C., the sixth and seventh paragraphs (pp. 15-16) are deleted and the following paragraph with footnote is inserted in their place:

Gallo contends additional considerations justify restricting the use of an unclean hands defense in a malicious prosecution action. Citing Leonardini v. Shell Oil Co. (1999) 216 Cal. App. 3d 547, 570, Gallo argues that to prove probable cause, the malicious prosecution defendant is limited to evidence known to him at the time he filed the prior action. He cannot introduce evidence to show probable cause that occurred after he filed the lawsuit. Permitting the defendant to present evidence that was unknown to him when he filed the prior suit or that occurred after he filed suit, under the guise of an unclean hands defense, would render the temporal probable cause limitation meaningless. fn. 1 Gallo's argument is flawed in that it fails to recognize that unclean hands goes beyond the justification for filing the malicious prosecution suit; unclean hands concerns the far broader question of a party's misconduct in the matter. (New Hampshire Ins. Co. v. Ridout Roofing Co. (1998) 68 Cal. App. 4th 495, 507.) [77 Cal. App. 4th 870b]

2. Under part C., in the ninth paragraph (p. 17), the citation appearing after the second sentence is modified to read as follows: (Downey Venture v. LMI Ins. Co. (1998) 66 Cal. App. 4th 478, 493.)

This modification does not effect a change in the judgment.

The petition for rehearing filed by E. & J. Gallo Winery is denied.

Harris, J., concurred.

FN 1. Gallo asks the court to take judicial notice of Kendall-Jackson's opposition to Gallo's motion to compel production of documents in which Kendall-Jackson concedes that probable cause is based on information known when the underlying complaint was filed. Gallo apparently wants to point out Kendall-Jackson's opposing positions. The request is denied. Kendall-Jackson's position is immaterial to whether there is a triable issue of fact regarding the unclean hands affirmative defense.