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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Appellate Information
APPEAL from Santa Clara County Super. Ct. No. CV068316.
SIXTH APPELLATE DISTRICT
Filed August 5, 2009

Judges
Before RUSHING, P.J., PREMO, J., ELIA, J.
Opinion by RUSHING, P.J.

Counsel
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.