Kinsella v. KinsellaAnnotate this Case
The issues presented by this appeal for the Court of Appeal’s review arose in the procedural context of an anti-SLAPP motion brought by Tamara Kinsella, in defendant Kevin Kinsella’s malicious prosecution complaint. Shortly after Tamara initiated dissolution of marriage proceedings against Kevin, Tamara sued Kevin based on what she contended was his promise, prior to their marriage, that the property and income they acquired during their relationship would belong equally to both of them (Marvin Action). After Tamara voluntarily dismissed the Marvin Action, Kevin sued her for malicious prosecution in the present action. Seeking to have Kevin's malicious prosecution complaint stricken as a SLAPP, Tamara responded with an anti-SLAPP motion. In her effort to establish that Kevin could not show she lacked probable cause to prosecute the Marvin Action, Tamara relied on an interim adverse judgment rule: She (1) presented evidence that the trial court in the Marvin Action denied Kevin's motion for summary judgment, and (2) argued that this interim victory on Kevin's summary judgment motion precluded Kevin from establishing that Tamara lacked the requisite probable cause to file and prosecute the Marvin Action. In opposition, Kevin relied on the fraud exception to the interim adverse judgment rule: He argued that, because Tamara defeated Kevin's summary judgment motion in the Marvin Action by having submitted materially false facts on which the court relied in denying the motion, Tamara was not entitled to rely on the interim adverse judgment rule's presumption that resulted from the denial of his summary judgment motion in the Marvin Action. The trial court ruled that the malicious prosecution complaint was a SLAPP and struck it. Kevin appealed, arguing the trial court erred in determining that he did not establish the requisite probability of prevailing on the merits of his claim against Tamara. The Court of Appeal concurred with Kevin’s argument and reversed.