Kim v. R Consulting & Sales, Inc.
Annotate this CaseIn May 2019, Andy Kim filed a lawsuit against law firm Metsch & Mason, LLP, its partners Paul Metsch and Michael Mason (collectively, the law firm defendants), and their clients R Consulting & Sales, Inc. (R Consulting), Raquel Michel, and Lance Ricotta for malicious prosecution, abuse of process, and intentional infliction of emotional distress. In his suit, Kim alleged the defendants wrongfully initiated contempt charges in connection with their enforcement of a civil judgment against him in R Consulting v. Info Tech et al. (Super. Ct. San Diego County, 2015, No. 37- 2015-00002561-CU-BC-CTL.) The defendants filed motions to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute, and the court granted the motions and entered judgments against Kim. Kim appealed the court’s grant of the anti-SLAPP motions, contending: (1) an order to show cause regarding contempt can form the basis of a malicious prosecution action; (2) the trial court erred in concluding that Kim could not show a probability of success on his malicious prosecution claim because it applied an incorrect standard to determine whether the defendants had probable cause to seek contempt; and (3) the defendants acted maliciously by continuing to prosecute the contempt action following the Court of Appeal’s decision in R Consulting & Sales, Inc. v. Info Tech Corporation et al. (Jan. 18, 2019, D072492) [nonpub. opn.]. The Court of Appeal concluded the defendants’ motion for an order to show cause (OSC) re contempt did not form a basis for a malicious prosecution action here, preventing Kim from demonstrating a probability of success on the merits; the Court thus affirmed the judgments in favor of the law firm defendants, R Consulting, and Michel on that basis. Because the Court concluded an OSC re contempt did not form a basis for a malicious prosecution action, the Court did not reach Kim’s arguments that the court applied an incorrect standard in reaching its decision or that defendants acted maliciously in pursuing contempt. Further, because Kim failed to provide a complete record on appeal, even if the Court reached the second and third issues, it would be unable to fully evaluate the judgment in favor of R Consulting and Michel, and we would affirm that order and judgment on that basis. Kim did not file a notice of appeal regarding the order or judgment in favor of Ricotta, so the appellate court lacked jurisdiction to entertain any challenge regarding Ricotta.
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