Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. BC291148
APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Thornton House, Judge. Affirmed in part and reversed in part.
Law Offices of Jay R. Stein, Jay R. Stein; Pircher, Nichols & Meeks and James L. Goldman for Plaintiffs and Appellants.
Randolph & Associates, Donald C. Randolph and Yu-Chun Wang for Defendant and Respondent.
KRIEGLER, J.
Defendant and respondent Edward Elio Galante’s attorney, Simon Bull, obtained a writ of arrest in Zimbabwe against plaintiff and appellant Topaz Summerfield, as part of Galante’s attempt to recover property from his estranged wife, who is Topaz’s sister. Topaz and her infant daughter, plaintiff and appellant Sable Summerfield, were arrested and incarcerated after Zimbabwe authorities arrived to serve the writ of arrest. A Zimbabwe judge later ruled that there was no factual basis for the writ of arrest as to Topaz. Upon their return, Topaz and Sable filed an action against Galante in Los Angeles.
Because more than one participant in the events of this case has the last name Summerfield, they will be referred to individually by their first names.
Topaz and Sable appeal from a judgment following a jury trial in favor of Galante in this action arising out of their imprisonment. Topaz and Sable contend: (1) there was no basis for the writ of arrest to be issued against Topaz and therefore Topaz and Sable were wrongfully arrested as a matter of law; (2) the jury’s finding that Galante caused Topaz and Sable to be falsely imprisoned is inconsistent with their finding that Galante’s conduct was not a substantial factor in causing their harm; (3) there is no substantial evidence to support the jury’s finding that Galante relied on the advice of his counsel in filing and continuing to prosecute the writ of arrest proceeding; (4) the trial court erred by excluding the final order in the underlying case and instructing the jury as to its contents; (5) the trial court erred by excluding evidence from an interim psychological report prepared for Galante’s divorce proceedings; (6) the trial court erred by excluding the video portion of Attorney Bull’s deposition; (7) the trial court erred by refusing to reopen the evidence during closing argument to allow additional evidence to aid the jury in deciphering Attorney Bull’s handwritten notes; (8) the trial court abused its discretion by denying a motion to strike Galante’s advice of counsel defense as a sanction for discovery abuse and improper litigation tactics; and (9) a new trial should have been granted based on Galante’s trial counsel Donald Randolph’s pervasive misconduct during argument.
We conclude the jury’s special verdict on false imprisonment is inconsistent as a matter of law and the special verdict on false arrest was unsupported by the evidence. We further conclude there is no substantial evidence to support the jury’s finding that Galante relied on Attorney Bull’s advice in continuing the underlying legal proceedings against Topaz. The trial court properly excluded the evidence at issue, or the exclusion of the evidence was harmless. The sanctions granted by the trial court for discovery abuse were not an abuse of discretion, and the trial court properly denied the motion for a new trial based on attorney misconduct, because Topaz and Sable did not object to Attorney Randolph’s statements during closing argument. Based on these conclusions, we reverse the judgment as to the causes of action for false arrest, false imprisonment, and malicious continuation of a civil proceeding. In all other respects, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Family History
Gerald Summerfield and his wife Shaina Summerfield raised their children Jeremy, Topaz, and Jacaranda in Zimbabwe. Galante, who was born in San Francisco, married Jacaranda in 1985. They lived in Northern California for several years and have two children.
Topaz moved to Los Angeles in 1987 and developed a business importing African art. She returned to Zimbabwe to visit her parents every year.
In 1992, Galante and Jacaranda moved to Zimbabwe with their children. They lived on a farm called Machera Farm. Galante owns or has an interest in businesses in Zimbabwe, California and Nevada. In February 1998, Galante and Jacaranda separated. Galante moved out of the family home and left the marital property at the farm in Jacaranda’s custody. In November 1998, Jacaranda filed for divorce in Zimbabwe.
Topaz gave birth to her daughter Sable in 1999. To spend more time with her daughter, she sold her business and worked as a consultant.
Jacaranda dismissed the divorce proceeding in Zimbabwe in December 2000, and Galante filed for divorce in Zimbabwe the following day. In September 2001, Jacaranda filed a petition for divorce in California.
Jacaranda decided to return to Northern California with the children. In early January 2002, she arranged for the property at the farm to be packed and stored. Shaina was at the farm during the packing, while Gerald visited the farm later in the month. Most of the property was taken to a storage facility where it was stored under the name Mrs. Ferrera. Jacaranda stored some of the property at a staff member’s home and some of the property at her parents’ home.
On January 8, 2002, Jacaranda and the children left Zimbabwe without notifying Galante, who was on vacation with in South Africa. She asked her parents not to reveal her whereabouts. The headmaster from the children’s school called Galante while he was in South Africa and informed him that Jacaranda had taken the children to the United States.
On January 22, 2002, Topaz and Sable arrived in Zimbabwe for their annual visit.
Galante Seeks to Recover the Property
On January 28, 2002, Galante obtained an order in the Zimbabwe divorce proceeding authorizing the deputy sheriff to collect a 20-page list of property at the farm and give it to Galante pending the outcome of the action. Galante accompanied the deputy sheriff to the farm and found most of the property was gone. The staff at the farm told Galante that Jacaranda’s parents had assisted her in removing the property.
On January 29, 2002, Galante drove to the Summerfield home with his girlfriend and two police officers. An officer knocked on the door of the house and brought Gerald out to the car. Galante repeatedly screamed, “You[’re] going to jail Gerald,” and spat on him several times. The police had to restrain Galante to prevent him from assaulting Gerald. Gerald obtained a restraining order against Galante.
Jacaranda told Galante that she had stored property at the storage facility, her parents’ home, and a staff member’s home. On January 31, 2002, Galante obtained an amended order authorizing the deputy sheriff to collect the property wherever he could locate it.
The deputy sheriff visited the Summerfield residence to collect property on the list. Gerald and Shaina told the deputy sheriff that they had some of Galante’s property and showed him where it was. Topaz learned for the first time that her sister had stored property at their parents’ house. The deputy sheriff returned twice to collect Galante’s wine collection and a car. The deputy sheriff told Galante that Shaina and Gerald said the wine collection and the car were all of the Galante property they had in their possession.
Galante accompanied the deputy sheriff to the storage facility where they found many of the items on the list, as well as several empty frames. They located farm equipment and other possessions at the staff member’s home.
Galante revised the list of missing property to account for items that had been located. The revised list was two pages and included approximately 18 paintings or lithographs, other artwork, sterling silver place settings, an oak filing cabinet, photo albums, an arc welder, a .38 caliber revolver, and a 1982 Rolls Royce automobile.
Galante gave the revised list to the deputy sheriff and asked him to return to the Summerfield residence and ask specifically about the items on the revised list. The deputy sheriff said he returned to the Summerfield residence, reviewed every item on the list with Gerald, and Gerald said he did not have any of the property.
On February 25, 2002, Galante spoke to Topaz’s cousin Richard Summerfield. Richard said Gerald, Shaina, and Topaz were planning to drive to South Africa on March 3, 2002, for a vacation, to avoid any potential violence during the general elections scheduled for March 9. In fact, although Gerald, Shaina, and Topaz originally planned to drive to South Africa, Gerald succeeded in having his name reinstated on the voting rolls. Gerald decided to stay in Zimbabwe and Topaz purchased airline tickets to South Africa for herself and Sable, leaving on March 6, 2002.
In February 2002, Galante met with his Attorneys Adrian de Bourbon, Cameron Hunt, and Rita Meiring at Attorney de Bourbon’s office. Attorney Bull was late to the meeting. Galante stated at trial that he discussed Gerald, Shaina, and Topaz’s travel plans at the meeting and Attorney Bull advised him that he could proceed through an application for arrest tamquam suspectus de fuga to protect his property. “Tamquam suspectus de fuga” means suspecting a person is going to flee to evade payment or fulfillment of an obligation. Attorney Bull was asked in his deposition whether the meeting took place before or after Galante learned of Gerald, Shaina, and Topaz’s travel plans. Attorney Bull’s response was unclear. Attorney Bull said it was Attorney Hunt or Attorney de Bourbon who mentioned the possibility of an application for an arrest tamquam suspectus de fuga. Attorney Bull did not believe a decision was reached at the meeting whether to seek the issuance of a writ of arrest. However, Attorney Bull has no handwritten or typed notes from the meeting.
Galante Files Legal Action
Attorney Meiring called Attorney Bull on the morning of February 28, 2002, and advised him of the concern over Gerald, Shaina, and Topaz’s travel plans. She asked Attorney Bull to prepare the proceedings necessary to protect Galante’s interest in the property.
That day, Attorney Bull filed a summons and particulars of claim on Galante’s behalf against Jacaranda, Gerald, Shaina, and Topaz. The summons stated that Galante requested an order for the return of property wrongfully held by the defendants, or alternatively the market value thereof, and costs of suit. The defendants were required to enter an appearance within ten days and notify Galante’s legal practitioner if they wished to oppose the claims.
The particulars of claim stated in pertinent part: “During the period between 7 January 2002 and 22 January 2002, [Jacaranda], with the assistance of [Gerald, Shaina and Topaz], vacated the former matrimonial home, and packed up and removed all its contents.” Galante demanded the items in their possession and they had failed to restore them. Therefore, he requested judgment against Jacaranda, Gerald, Shaina, and Topaz, jointly and severally, for an order directing the return of the property on the attached two-page list or payment of damages.
Galante did not review or sign the paperwork before Attorney Bull filed it with the Zimbabwe court. He did not cause the false allegation that Topaz participated in packing the property at the farm to be included in the particulars of claim. On Friday, March 1, 2002, a copy of the summons and particulars of claim was delivered to the Summerfield property and left in the mail box. Upon receiving it, Topaz called Anthony Brooks, who was Jacaranda’s attorney in the divorce proceeding in Zimbabwe. Attorney Brooks told her to send him the documents and he would handle the matter on Monday.
However, Attorney Bull also prepared an “urgent chamber application” to obtain a writ of arrest, including a certificate of urgency and a founding affidavit. Attorney Bull certified that the application was urgent because: Gerald, Shaina, and Topaz “almost certainly” had a number of very valuable and very portable items of Galante’s and they intended to leave Zimbabwe with the items over the weekend, probably very early on Sunday morning, March 3, 2002. In addition, Galante had instituted legal proceedings against Topaz and needed to attach her person in order to confirm jurisdiction, for if she left Zimbabwe, his claim against her would be permanently lost.
Galante’s affidavit in support of the application stated that he believed Gerald, Shaina, and Topaz intended to remove some or all of the items on the list of property from the country, because valuable lithographs had been removed from their frames and were missing. He had been advised that they were departing Zimbabwe on Sunday, March 3, 2002. There was no reason to remove the art from the frames other than to make it more portable for removal from Zimbabwe. Galante requested an order for the arrest of Gerald, Shaina, and Topaz “until such time as they deliver up the items in question, or alternatively, furnish security for their value, and which I conservatively estimate at U.S. $250,000.00”
Galante stated as to Topaz: “[Topaz] is a resident and domiciled in the United States of America and has only recently travelled to this country for reasons of which I am not clear, but which I verily believe relate to the current pending divorce proceedings between myself and Jacaranda. [¶] I am certain that [Topaz] owns no assets whatsoever in Zimbabwe and has made her life in the United States of America. [¶] Consequently I have no assets of [hers] to attach in order to confirm the jurisdiction of this Honourable Court in respect of the action against her, and the only way that I can properly do so, therefore, is to attach her person in order to found or confirm jurisdiction in my action against her.”
Attorney Bull asked Attorneys Hunt and de Bourbon to review the urgent chamber application, the affidavit, and the certificate of urgency before he filed them with the court. Attorney Bull filed the application on Galante’s behalf on Friday afternoon, March 1, 2002. No notice of the proceeding was provided to Gerald, Shaina, Jacaranda, and Topaz. The judge assigned to the matter put it over to the following day. Attorney Bull expected that when the writ of arrest was served, Gerald would choose to post security.
In deposition, Attorney Bull stated that Galante consulted him for legal advice and asked him to provide the legal means to protect his property under the circumstances. Attorney Bull advised Galante that the urgent chamber application was appropriate for his concerns. Galante similarly testified that he asked his lawyer what to do and his lawyer advised him to procure a writ of arrest. Attorney Bull consulted with Galante to ensure that the facts were accurate in the affidavit. Galante reviewed his affidavit carefully before signing it. Galante “vaguely” knew Topaz had a child and did not know that Sable was in Zimbabwe. He did not read the writ of arrest prior to the time it was submitted to the court for execution, nor did Attorney Bull go over it with him.
At 10:00 a.m. on Saturday, March 2, 2002, an ex parte hearing was held on the urgent chamber application. The Zimbabwe court issued a provisional order for a writ of arrest. The order was addressed to Gerald, Shaina, and Topaz. If they wanted to oppose confirmation of the provisional order, they had to file a notice of opposition within ten days and serve a copy on Galante’s attorney. If they did not file an opposing affidavit, the matter would be set for hearing without further notice and treated as an unopposed application for confirmation of the provisional order.
The terms of the provisional order required Gerald, Shaina, and Topaz to be arrested tam quam suspectus de fuga and kept in custody pending the court’s determination of the action instituted by Galante for delivery of all of the items specified on the two-page property list. The provisional order directed the deputy sheriff to arrest Gerald, Shaina, and Topaz and detain them at the Harare Central Prison. The order instructed the officer in charge of the Harare Central Prison to receive Gerald, Shaina, and Topaz into his custody pursuant to the order and keep them until they were lawfully discharged or provided security of $250,000.
In conjunction with the provisional order, the Zimbabwe court issued a writ of arrest that commanded the Zimbabwe sheriff or his deputy sheriff to apprehend and arrest Gerald, Shaina, and Topaz, and unless and until they delivered all of the items on the list, the sheriff was required and directed to deliver them to the keeper of the Harare Central Prison with a copy of the writ, to be safely kept there until lawfully discharged or until a payment of $250,000 was made.
Attorney Bull gave the deputy sheriff copies of the provisional order and the writ of arrest. He explained that the deputy sheriff had to effect an arrest of the three respondents, or alternatively, obtain the payment of $250,000 referred to in the writ of arrest. Attorney Bull typed notes of his conversation with the deputy sheriff and placed them in Galante’s file. He noted that “[the deputy sheriff] stated that because two of the people requiring arrest were ladies[,] he would need to enlist the aid of the Police and the ladies were always taken in any event to Chikurubi prison not Harare Central Prison.”
Attorney Bull’s file notes, as well as other documents in Attorney Bull’s possession relating to the writ of arrest proceeding, were not produced until after Attorney Bull had been deposed. The parties’ attorneys referred to some of the correspondence and notes in Attorney Bull’s file during the examination of witnesses and in closing argument. Where relevant, file notes and documents received into evidence are described in the facts, even if they were not specifically brought to the attention of the jury.
Topaz and Sable Are Arrested
On Saturday, March 2, 2002, Gerald and Shaina went to a friend’s house to play tennis. In the early afternoon, the intercom rang from the gate to the property. A man identified himself as a police officer and told Topaz that he had something to deliver. She asked him to leave it in the mailbox, since her parents weren’t home. The officer became irate and abusive. He told her to let him in or he would break down the gate. Topaz took Sable to the pool to swim. A staff member came to the pool and told Topaz that there was trouble at the gate. Topaz put a cover-up over her wet swimsuit and walked to the gate with Sable.
Topaz found two police officers had jumped over the gate. Several very large guard dogs were menacing the officers. The police had placed a man who worked for a neighbor in handcuffs and threatened to arrest him. They also threatened to arrest a gardener working on the property. The officers did not ask Topaz her name, did not mention Galante’s property, and did not request that she provide security. They told her she was under arrest. Topaz asked to see identification. The police told her their guns were all the identification they needed. They grabbed her arm shouting, “You are under arrest.” Topaz asked the charges and they handed her the writ of arrest and Topaz saw her name on it. The officers said they didn’t know the charges and were just doing their job.
Topaz pulled away from the officers and picked up Sable. The dogs acted to defend Topaz and Sable by coming between them and the police officers. The police officers drew their guns. Topaz turned her body away from the officers to protect Sable from the guns. Topaz said that she was going to walk up to the house to make a telephone call and change out of their wet swimsuits to proper clothes and the officers could accompany her to the house if they wanted to. The officers became very abusive and shouted that they were going to shoot the dogs. The gardener stood between the officers and Topaz, warding off the dogs with a garden hose and preventing the officers from grabbing Topaz as she retreated to the house.
Topaz walked to the house holding Sable in front of her. She walked into the house, and as the officers tried to push through the door behind her, she closed the door and it locked. The police shouted something. Topaz was afraid and called Shaina on the telephone to tell her that the police intended to take her into custody. Topaz said she didn’t know what was going on, but the police were at the house with a writ of arrest that had her, Shaina, and Gerald’s names on it. She said the police were taking her to the Highlands Police Station for questioning and she needed help. Shaina and Gerald attempted to locate Attorney Brooks.
Topaz went upstairs in the house to change her clothes and Sable’s clothes. The police shouted and hammered on the front door. They accused Topaz of resisting arrest. Topaz put her head out the window to tell them she was nearly dressed and coming down. With their guns drawn, they shouted that they were going to blow down the front door. Topaz told the police that they could either blow down the front door or wait five more minutes, because her daughter had been so frightened by all the shouting and brandishing of weapons that she had urinated in her pants. Topaz changed Sable again and went downstairs.
Topaz opened the front door and the police were calmer. They explained that it was just a civil matter and wanted her to come to the station to answer some questions. The police instructed her to get into their car, but she refused and told them that she would drive Gerald’s car to the station instead. She told the police that there was no one at home with whom to leave Sable and the police told her that she had to bring Sable with her. An officer rode with them and sat in the back of Gerald’s car with his gun drawn.
Attorney Bull stated in his deposition that at some point during the afternoon, the deputy sheriff called him to express concern that Topaz had been the only one at home and she had a baby with her with whom she was not prepared to part. Attorney Bull told the deputy sheriff that he needed to deal with the matter in accordance with the procedures of his office. Galante spoke with Attorney Bull three times by telephone on the day of the arrest. Galante testified at trial that when he heard Topaz had been taken into custody, he instructed his lawyer to have her released.
Topaz brought her airline tickets to the police station showing her travel from the United States to prove that she had not been in the country at the time that Galante alleged she had taken his property. The police questioned Topaz at the station, but never mentioned Galante’s property. She told them that she didn’t think their questions were relevant and she was going to go home. They told her that she could not leave the police station and she was going to prison. Attorney Brooks arrived, but the police would not let them speak to each other. Topaz asked if Attorney Brooks could take Sable with him, but the police refused to allow it. Topaz was worried the police would take her airline tickets, so she gave them to Attorney Brooks as he walked out.
Shortly afterward, the police officers house ushered Topaz and Sable into a police car. Topaz asked where they were going and the officers told her that they were taking her to Chikurubi. The route from the station to the prison went past the Summerfield residence. Topaz asked to stop and leave Sable at the house. The police refused and told her that she had resisted arrest and they didn’t want to go out of their way, and as a punishment, they were taking Sable to jail too.
They arrived at the prison at about 5:00 p.m. The warden asked the officers why they had brought Topaz to Chikirubi and one of them said it was because she had resisted arrest. Topaz and Sable were taken to a prison cell that held several other women.
In the early evening, Attorney Brooks called Attorney Bull and told him that Topaz had been incarcerated at Chikurubi pursuant to the writ of arrest. Attorney Brooks asked Attorney Bull to meet at the courthouse so that Attorney Brooks could bring an application for Topaz’s immediate release. Attorney Bull agreed. Attorney Bull stated in his deposition that he did nothing to get Topaz released from prison until he received the call from Attorney Brooks.
Attorney Brooks and an attorney friend of the Summerfields met with Attorneys Bull and de Bourbon outside the local courthouse. The Summerfield residence is a large property worth in excess $250,000 U.S. dollars, as is Gerald’s interest in two retail clothing businesses. Galante demanded that Gerald relinquish the deeds to his property and he would agree to release Topaz from prison. Gerald asked his attorneys to try to negotiate another solution.
The paintings were the most valuable of the missing items. At 10:00 p.m., the attorneys reached an agreement under which Shaina, Gerald, and Topaz would surrender their passports and Topaz’s return airline ticket, and in exchange, Galante would agree to Topaz’s release from prison. Attorneys Bull and Brooks executed a handwritten agreement providing that the passports would be handed to Attorney Bull pending the outcome of the matter, Attorney Brooks would ascertain the children’s address from Jacaranda and the precise whereabouts of the paintings, and if Jacaranda had the paintings in her possession in America, they would be handed forthwith to her attorney in San Francisco. Gerald and Shaina surrendered their passports that evening.
Attorneys Bull and Brooks immediately drove to the prison and informed the senior officer that Galante wanted Topaz released. In his deposition, Attorney Bull explained that they were advised by the prison officials that because Topaz had been incarcerated pursuant to a court order, a formal court order was required to release her. Early the following morning, Attorneys Brooks and Bull appeared before the duty judge. On Galante’s behalf, Attorney Bull consented to an order of release.
Shaina, Gerald, and Attorney Brooks went to Chikurubi. Sable was released to them. Sable screamed for her mother to come with her as she was passed from a prison staff member to a prisoner and ultimately to Shaina. She was sunburned and had numerous insect bites. A few hours later, Topaz was released and Attorney Brooks took her to the Summerfield residence.
On Monday, March 4, 2002, Shaina took pictures of Topaz’s injuries. Topaz and Sable visited a doctor. The doctor prescribed tranquilizers, an antihistamine, and delousing agents. Topaz paid approximately $400 for the visit and the medications. Sable began waking up screaming at night. She wet her bed and had to wear diapers again. Topaz had nightmares, hives, and anxiety attacks. She was afraid that she might have contracted AIDS and requested several AIDS tests over the next few years.
Continuation of Civil Action After Topaz’s Release
Gerald returned approximately 15 paintings listed in the court orders. Topaz requested her passport from Galante in order to travel to South Africa and he agreed to return it.
Attorney Brooks told Attorney Bull that Jacaranda was ignoring his messages about the missing property. After a telephone call with Galante on March 5, 2002, Attorney Bull made note that: “[Galante] did state that he felt that it was only right that he should be given the information in regard to the whereabouts of the missing items by close of the day tomorrow, 6th March. If it was not in hand by then, we would have to give consideration to the Summerfields posting security since they had not complied with the terms upon which we had agreed to authorize the release. Alternatively, they could give themselves up for admission to Chikurubi.” Attorney Brooks called Attorney Bull to tell him that one painting had been overlooked and he would hold them all, as per Galante’s request, in his firm’s vault.
Galante’s attorney argued at trial that the last statement was not made by Galante, but rather, was an editorial comment added by Attorney Bull.
On March 6, 2002, Attorney Bull spoke with Attorney Brooks. His notes of the conversation state, “We did discuss the aspect of Topaz, and he said that he still felt that she should not have been dragged into it at all, and that it was not helpful for [Galante] to indicate that it was undesirable to escalate matters by reference to the scenario of Topaz suing him. I stated that to my mind we should not even be concerning ourselves with Topaz at this stage and rather simply focusing on ascertaining the whereabouts of the missing paintings etc. He agreed with that.” On that same day, Attorney Bull placed a note in the file that he had called and reported to Galante. “[Galante’s] attitude was that if we did not receive the information by tomorrow then we should insist upon the Summerfields furnishing security.”
On March 7, 2002, Attorney Brooks wrote to Attorney Bull that Jacaranda had sold six of the lithographs to a man whose last name she did not know for $6,000 in order to pay for her ticket to Cape Town to get legal counsel in 2000. She sold another piece of artwork in Berkeley to a man named Peter Fong or Wong for $3,000 to pay legal expenses, and she had recently traded one of the pieces of artwork for forensic services to track Galante’s assets. Attorney Brooks added, “[Galante] can no longer hold on to the bona fide belief that any of the property is still within the possession of [Gerald] and Shaina Summerfield. We therefore have been instructed to demand from you as we hereby do the immediate return of their passports which were placed in your possession on the evening of Saturday 2 March 2002 pursuant to the agreement arrived at between the parties.”
Attorney Bull spoke with Galante. Attorney Bull’s notes state, “[Galante’s] attitude, hardly surprisingly, was that he was simply not prepared to accept the ipse dixit of his wife, and that he needed more information in order to enable him to follow up that she was telling the truth. Furthermore, of course, he wished to follow up in order to try and obtain his property. He did not believe for one minute that [Gerald and Shaina] were unaware that their daughter was selling off assets and was firmly convinced that they were participating just as much as she was in the sales. He stated that he felt it was appropriate for us to now apply for security from [Gerald and Shaina] [in] the sum of U.S. $250,000.00.” Attorney Bull’s advice to Galante was to wait for the letter from Attorney Brooks with details from Jacaranda about the disposition of the property. They discussed whether Jacaranda could be charged with a criminal offense for selling his property.
Attorney Bull added a note to the file stating his impression: “I do not believe that we are in a position to insist upon [Gerald and Shaina] providing security. Effectively, the application was for an order to preclude them from escaping Zimbabwe with his property and selling it off outside the country, and since we now held their passports they were not in a position to leave the country. Effectively our holding of the passports was our security in regard to the whole purpose of the Order being obtained in the first place. Certainly we were not in a position to have them imprisoned for the same reason.”
Attorney Bull also stated his opinion that Galante should wait for information from Jacaranda and leave it to Attorney Brooks to file an opposing affidavit in the writ of arrest action, or alternatively, to ask that the application be heard in court for it to be dismissed against his clients. His believed Galante was entitled to oppose the order being set aside, “thereby enabling us to continue to retain the passports or, alternatively, have security substituted for the passports,” on the basis that Jacaranda had previously assured Galante that she was properly looking after the property and keeping it safe. “There was no suggestion whatsoever that any of it had been sold, and clearly she was endeavouring to keep that hidden.”
At trial, Galante testified that he understood the underlying legal action continued after Topaz and Sable were released from prison. Attorney Bull explained in his deposition that Galante did not need to pursue the writ of arrest or take further action, because he held security in the form of Gerald and Shaina’s passports and they were still trying to locate the remaining property. Galante could have dismissed the proceeding by withdrawing his application, but although they had obtained the passports, they did not have the property, so it seemed inappropriate to withdraw the application. Attorney Bull also stated that there was no good reason to withdraw the application.
Attorney Bull stated that Galante did not withdraw the application as to Topaz because Topaz was out of custody, had her passport, and nothing further effectively would happen to her. Asked why Galante would not simply withdraw the application if nothing further could happen to Topaz, Attorney Bull responded, “I don’t think that it is something that would have occurred to him or, indeed, to me because I didn’t think there was anything specifically to be gained by Topaz doing it. There was no specific advantage to her.”
On March 18, 2002, Gerald, Shaina, and Topaz filed an opposing affidavit. On April 2, 2002, Attorney Brooks sent a letter to Attorney Bull with information from Jacaranda about the remaining property on the list. Attorney Brooks wrote, “The aforegoing concludes our client[’]s instructions with regard to this matter and from it you will see that our client’s parents no longer have anything to do with the property which your client presently claims. [¶] [Y]ou cannot claim to have any right to hold on to our clients[’] passports and the air ticket of Topaz Summerfield, which you hold pursuant to the agreement upon which Topaz Summerfield [was] released from prison on 3 March 2002. [¶] We ask for these now to be returned, failing which an urgent application will have to be made to have this matter [] set down on an urgent basis, and we shall again insist that your client bears the costs thereof on a higher scale.”
Attorney Brooks wrote that one of the paintings on the list was in his firm’s vault, a glass sculpture had been broken, Jacaranda sold a mask for $10,000 to an English family on a safari in 2000, the oak filing cabinet broke and she threw it away, the arc welder was stolen by a staff member who left the farm to work for Galante, and she had sold one other item that had belonged to her before the marriage. The photo albums, a verdite rhinoceros, the sterling silver place settings, another sculpture, and the gun were among the items that were packed and lodged at the storage facility. She said Galante took a leather desk set, some of the wine, and another item with him when he left in 1998. She did not know the whereabouts of the Rolls Royce and knew nothing about a bronze bookend of George Washington or a silver ashtray.
On April 10, 2002, Attorney Bull responded, “we do not agree that the disclosures made in the earlier paragraphs give rise to the conclusion that you espouse.” He stated that Galante would be filing an answering affidavit.
The return date on Topaz and Sable’s airline tickets was April 29, 2002. On April 15, 2002, Attorney Brooks wrote a letter to Attorney Bull stating in pertinent part, “We would strongly advise, both for your sake and that of your client, that your client seriously consider withdrawing these proceedings and tendering wasted costs as it would be with grave regret that we would have to take further measures along the lines already espoused in our client’s opposing affidavit.”
In May 2002, Topaz submitted a declaration in Jacaranda’s divorce proceeding in San Francisco describing her arrest in Zimbabwe. She declared that she had missed her return flight to the United States because Galante’s attorney had not returned her airline tickets and she was essentially held hostage in Zimbabwe with her daughter.
Gerald, Shaina, and Topaz hired Attorney Hilary Fitzpatrick to represent them in the proceedings. Attorney Fitzpatrick wrote a letter to Attorney Brooks on May 23, 2002, requesting that Galante return Topaz’s expired airline tickets.
On May 27, 2002, Attorney Bull wrote a letter to Galante that enclosed copies of Attorney Fitzpatrick’s letter and Attorney Bull’s response. He requested that Galante send him a memorandum addressing the allegations of the opposing affidavit so he could prepare Galante’s answering affidavit. In the final paragraph of the letter, Attorney Bull asked, “In the meantime, do you have any objection to the release to Topaz of her expired return air ticket, given that it does seem fairly clear that she was genuinely here for holiday purposes and appears not to have involved herself in any way with the issues between yourself and Jacaranda.” A handwritten notation added, “And that it is of no value in any event.” Before the letter was produced to opposing counsel in this action, the final paragraph and the handwritten notation were redacted. Galante did not return the airline tickets to Topaz.
On July 29, 2002, Attorney Bull had a ten-minute telephone call with Attorney Eric Matinenga. Attorney Bull explained to Attorney Matinenga that the property would probably be dealt with in Galante’s divorce proceeding, “so that, effectively, insofar as the [tamquam suspectus de fuga] proceedings were concerned, we were simply looking at costs. [¶] I did emphasize, however, that I wanted the Answering Affidavit filed to reflect what the correct actual position was so that, at least for record purposes, there could be no suggestion that I had acted improperly or mala fide and that what was done was fair, reasonable and necessary in order to protect my client’s interests. . . . I told him I would like to get on with filing the Answering Affidavit and he said that he would arrange to photocopy and forward to me a copy of [Galante’s] letter to me which was in his instructions.”
Galante filed an answering affidavit in the case on August 20, 2002. Attorney Bull acknowledged in his deposition that Galante could have dismissed the proceeding by withdrawing his application to have Gerald, Shaina, and Topaz arrested, rather than seeking to have the provisional order made final. Attorney Bull stated that it was clear from Galante’s pleading that Galante was not seeking the arrest of Gerald, Shaina, and Topaz. However, Galante continued to hold the passports and sought to prevail in the action, in which case he would have been entitled to recover his legal costs from the opposing parties.
Gerald, Shaina, and Topaz’s opposing affidavit, Galante’s answering affidavit, and the related legal arguments that were filed with the Zimbabwe court were not admitted into evidence in this case.
Attorney Bull spoke with Attorney de Bourbon on October 8, 2002, about the outstanding hearing in the tamquam suspectus de fuga proceeding. “[Attorney de Bourbon] stated that as far as he was concerned we should not proceed further with this matter. [¶] He felt that we had made our point loud and clear and that to pursue it now would in effect be spiteful. [¶] He said I was quite free to mention that to . . . Galante when I spoke to him. [¶] He said it would be far preferable to have it settled. [¶] He agreed with me that a settlement on the basis of us handing back the passports and the tickets and each party bearing its own costs was sound.”
Attorney Bull spoke with Galante on October 9, 2002, about the merit of a settlement. “He accepted my advice that it would be preferable to have the matter settled in view of the fact that there was a risk that we would go down on the question of legal costs.”
Attorney Bull spoke to Attorney Matinenga to authorize him to offer the settlement proposal to Gerald, Shaina, and Topaz. Attorney Bull told him that if Gerald, Shaina, and Topaz did not accept the proposal, “then I saw no alternative other than to arguing the matter. [¶] I told him that I felt he was persuasive, . . . and that the Judge before whom the matter was placed might very well take an attitude that was not so much concerned with procedure but rather with merit, and that it appeared fairly clear, to my mind, and a proper consideration of our Answering Affidavit, that Galante was acting more than reasonably in assuming that his property would be made away with.” Gerald, Shaina, and Topaz did not accept the settlement proposal.
On December 9, 2002, Shaina filed a stolen property report with the police stating that her purse had been stolen. She listed Topaz’s expired airline tickets on the list of stolen property. Topaz filed a lost ticket application with the airline, provided a copy of the police report, and paid $400 for replacement airline tickets.
On December 20, 2002, the Zimbabwe court issued a final order in the writ of arrest case. The court recited the facts of the case and found as follows in pertinent part: “In his papers, [Galante] seeks the arrest of [Topaz] ad confirmandum jurisdiction but the draft order seeks arrest tamquam suspectus de fuga. In my view, as far as [Topaz] is concerned, it is not necessary to determine which of the two could have been the correct procedure. [Galante] failed, in his papers, to show that [Topaz] had anything to do with the removal of property from Macheka Farm. All he could say was [Topaz] travelled to Zimbabwe, for reasons not clear to him but which he believes relate to the divorce between him and his wife. He did not establish a basis for such belief. Her only ‘crime,’ as was submitted by [her] counsel, was to arrive in the country for her annual holiday on the same day that her sister departed for the USA. I therefore find no basis to confirm the order in respect of [Topaz].” The Zimbabwe court concluded that subsequent acts concerning the property had rendered the order sought as to Gerald and Shaina moot.
There is no explanation in the record for the statement by the Zimbabwe court that Jacaranda left Zimbabwe on the day that Topaz arrived.
The Zimbabwe court noted, “[Gerald, Shaina, and Topaz] are praying for costs de bonis propriis against Attorney Bull. They did not actively pursue the argument in their heads of argument and the issue was half-heartedly argued on the day of the hearing. The submissions by [counsel for Gerald, Shaina, and Topaz] almost amounted to a concession that the order was not appropriate. However, my view is that [Galante] should pay [Gerald, Shaina, and Topaz’s] costs. As I have already stated elsewhere in this judgment, [Galante] had no basis whatsoever for dragging [Topaz] to court. As regards to [Gerald and Shaina, Galante] failed to establish a basis for his belief that they wanted to leave the country with his property.” The Zimbabwe court discharged the provisional order issued on March 2, 2002, ordered Galante to release the passports forthwith, and ordered Galante to pay costs of suit.
Topaz and Sable returned to the United States on December 22, 2002.
On January 8, 2003, Attorney Bull wrote the following to Galante: “I write to advise you that the [tamquam suspectus de fuga] application has, predictably, been dismissed with costs. [¶] The Court ordered the immediate return of the passports. [¶] Clearly there is no basis for an appeal as the circumstances pertaining at the time have been overtaken by events, particularly the judgment [in the Zimbabwe divorce proceeding]. . . . Please confirm that I am to deliver the passports to [Attorney] Fitzpatrick on behalf of [Gerald and Shaina].” Attorney Bull returned Shaina and Gerald’s passports.
Topaz paid Attorney Brooks $1,000 in legal fees. Her parents paid the remainder of her legal fees pursuant to an agreement that Topaz would repay them when she could. Topaz did not submit a bill of costs for payment by Galante. Topaz paid additional medical expenses when they returned to the United States, including expenses for therapy and dermatological services for a scar on Sable’s face.
The Instant Case
On February 27, 2003, Topaz and Sable filed the complaint in the instant case against Galante for false imprisonment, malicious prosecution, intentional infliction of emotional distress, and defamation. Galante filed a motion to quash service of process for lack of jurisdiction and to stay or dismiss the action for inconvenient forum, which was denied by the trial court. Galante filed a writ petition that was denied by this court. On January 2, 2004, Galante filed a general denial asserting affirmative defenses including lack of jurisdiction, contributory negligence, and failure to state a cause of action. Galante did not assert advice of counsel as a defense.
On November 11, 2004, Topaz and Sable’s counsel wrote a letter to Galante’s counsel in the instant matter, Attorney Randolph. Topaz and Sable requested a stipulation allowing depositions of Galante and Attorney Bull to be taken telephonically or by video conferencing at a mutually convenient date. Topaz and Sable stated that they intended to schedule four additional depositions in South Africa and Zimbabwe. In the event that there was no stipulation, Topaz and Sable would set dates convenient to their counsel’s schedule and take the depositions before the discovery cutoff date of December 13, 2004.
On November 16, 2004, Attorney Randolph responded that he would not agree to the proposed stipulation, because it was not in Galante’s best interests. In addition, he stated his understanding that depositions taken unilaterally in Africa would not be admissible without proper notice and issuance of an oath to the witness by an authorized government official. Attorney Randolph agreed to honor a notice of telephonic deposition as to Galante, but noted that it required ten days’ notice. Attorney Randolph added, “We will not ‘provide’ [Attorney] Bull, a non-party, for deposition.”
On November 23, 2004, Galante provided an expert witness list that listed Attorney Bull as a nonretained expert witness. On December 12, 2004, Galante submitted a supplemental expert witness designation adding Attorney de Bourbon to his expert witness list.
On January 28, 2005, Topaz and Sable filed a motion to compel production of Attorney de Bourbon’s records and files or, in the alternative, to strike him as an expert witness. On February 22, 2005, the trial court granted the motion to compel in part and instructed Galante to create a privilege log identifying documents subject to the attorney-client privilege. The parties’ attorneys were instructed to discuss objections and set forth unresolved issues with particularity.
A status conference on discovery issues was set for May 4, 2005, and the trial date was continued to August 2005. On April 22, 2005, Galante filed a motion for summary judgment. As to the cause of action for malicious prosecution, Galante argued that he relied on the advice of counsel in filing the initial application for a writ of arrest.
Galante filed a privilege log listing documents generated by Attorney de Bourbon, such as drafts of pleadings filed in Galante’s divorce proceeding in Zimbabwe. Galante asserted that all of Attorney de Bourbon’s responsive documents were on the privilege log and Attorney de Bourbon had no nonprivileged documents. On May 2, 2005, Galante filed a status conference report that withdrew his designation of Attorney de Bourbon as an expert witness.
On May 3, 2005, Topaz and Sable filed a response stating that Galante had waived the attorney-client privilege as to communications among himself and Attorneys de Bourbon and Bull by raising advice of counsel as a defense to the cause of action for malicious prosecution. Topaz and Sable requested that the trial court order Galante to produce evidence of communications related to the legal proceedings in Zimbabwe, including communications to which Attorney de Bourbon was a party.
The status conference on discovery issues was held on May 4, 2005. On the issue of the production of Attorney de Bourbon’s documents, Attorney Randolph explained that he had agreed to provide copies of nonprivileged documents, such as pleadings filed in the divorce proceeding, which would be a matter of public record. However, it turned out that Attorney de Bourbon did not have copies of the pleadings that were filed. The trial court noted that Galante would be precluded from introducing any of the pleadings at trial for any purpose. Attorney Randolph agreed to provide copies of any pleadings in his possession that were filed in the divorce proceeding. Topaz and Sable’s counsel stated that Attorneys de Bourbon and Bull had been cocounsel in Zimbabwe and if Galante relied on the advice of either attorney, the privilege had been waived for both. Attorney Randolph told the trial court that Attorney de Bourbon was not involved in the drafting and presentation of the civil arrest warrant.
Topaz and Sable’s counsel explained their understanding that Attorney de Bourbon’s pleadings and correspondence had been transferred to Galante’s counsel in San Francisco for use in connection with the divorce proceeding Jacaranda had filed. Topaz and Sable had not issued a subpoena to the San Francisco counsel, because the documents were within the scope of discovery until Galante withdrew his designation of Attorney de Bourbon as an expert. The trial court ordered Galante to provide any pleadings that Attorney de Bourbon had in his possession and any other nonprivileged documents as required by the court’s previous order. The court advised Topaz and Sable to seek discovery of the file in San Francisco pursuant to a subpoena.
On May 9, 2005, Topaz and Sable served a deposition subpoena for production of business records on the custodian of records of Randolph & Associates. Topaz and Sable requested: all documentation in the possession or control of Randolph & Associates as to litigation between Galante and Jacaranda from 1997 to the present; all documentation generated by Attorney Bull or his firm concerning Galante and Gerald, Shaina, or Topaz from 1997 to the present; all documentation generated by Attorney Bull at any time from 1997 to the present as a result of tanquam suspectus de fuga proceedings between Galante and any member of the Summerfield family; all documentation received from or otherwise created by Attorney de Bourbon at any time from 1997 to the present regarding the litigation between Galante and Jacaranda; and all documentation constituting evidence that Galante relied upon the advice of his counsel in obtaining the writ of arrest.
On May 26, 2005, Galante objected to the deposition subpoena on the ground that the requests for production of documents were beyond the scope of discovery ordered at the May 4, 2005 hearing, namely, nonprivileged pleadings filed in the Zimbabwe divorce proceeding. In addition, Galante objected to the extent that the requests concerned attorney-client communications and work product.
A hearing was held on July 14, 2005, on the motion for summary judgment. The trial court found that Galante had not met his burden on summary judgment and denied the motion.
On July 19, 2005, Topaz and Sable filed a motion in limine to preclude Galante from relying on advice of counsel as a defense. Topaz and Sable argued that Galante did not raise the defense until his motion for summary judgment and his opposition to a motion for discovery of his financial condition. By raising the defense, he waived his right to prevent discovery into communications he exchanged with his counsel concerning the arrest proceeding. Galante had objected to the subpoena for production of documents on the basis of the attorney-client privilege and provided no documents. Topaz and Sable argued that Galante should be estopped from claiming that he relied on the advice of his counsel, because he had denied them the opportunity to conduct meaningful discovery on the issue.
A hearing was held on July 28, 2005, and the trial date was continued to September 12, 2005. On August 10, 2005, Galante filed a motion in limine to exclude testimony as to the contents of court documents from Zimbabwe on the grounds that it was hearsay and not properly subject to judicial notice.
On August 18, 2005, the parties entered into an agreement that included the following stipulations: certain documents were correct copies of documents in the record of the underlying proceeding in the Zimbabwe court; a sufficient foundation had been established for the admissibility of the writ of arrest and the December 20, 2002 order, although the parties reserved their right to object to admissibility on all other grounds; Attorney Bull’s testimony as an expert witness would be limited to certain matters; and Topaz and Sable would withdraw the motion in limine seeking to preclude Galante’s advice of counsel defense.
At a hearing on August 24, 2005, the following discussion took place concerning the stipulation: “[Counsel for Topaz and Sable]: I thought the agreement was that we would withdraw the motion, [Attorney] Bull and his file would be produced [for deposition on September 7, 2005], his file being whatever documents he generated or received during the course of his representation of Mr. Galante in the arrest proceeding. [¶] [Attorney Randolph:] All right. I agree. . . . What he just said, I will agree that is my understanding.”
At a hearing on August 29, 2005, Attorney Randolph explained arrangements he had made for Attorney Bull’s deposition. Attorney Bull would travel to South Africa and they could video conference and videotape it at the court. He stated, “[I]f it works, then I’m going to have him testify live at the trial. So this is a trial run. And if it doesn’t work, I’ll still have the deposition with the videotape. So that’s the plan.”
The trial court issued a tentative ruling on Galante’s motion in limine to exclude the Zimbabwe court documents as hearsay. The Zimbabwe judgment could be recognized as conclusive in the instant case based on principles of comity. It was not clear whether it was necessary for the court to resort to judicial notice, because the parties had stipulated to the foundation for the documents. Judicial notice could be taken of the Zimbabwe court’s findings, but could not encompass that the facts found by the Zimbabwe court were the true facts. The parties’ stipulation as to authenticity and the court’s ability to take judicial notice permitted application of the official record’s exception to the hearsay rule to allow introduction of the document in its entirety. Introduction of the document would be permitted with a limiting instruction. After hearing argument, the trial court ruled that the jury would be instructed that the court had taken judicial notice of the findings in the final order in the underlying case and they would be provided with a statement of those findings.
On September 12, 2005, after Attorney Bull’s deposition, counsel for Topaz and Sable objected that Attorney Bull’s files had not been produced as required by the parties’ agreement. Attorney Randolph stated he had believed in good faith that Attorney Bull’s entire file had been produced with respect to the writ of arrest, but Attorney Bull had stated in deposition there might be other documents. Topaz and Sable’s counsel noted that there were no billing records, file memoranda, correspondence, or other documents that they would have expected to have been produced. Attorney Randolph’s explanation was that Attorney Bull learned on a Thursday night that the writ of arrest would go forward over the weekend and there was no time for correspondence. The court asked whether Attorney Bull would be testifying by way of deposition. Attorney Randolph answered, “The plan right now, your Honor, is to have him testify live and in color . . . . But we do have eight hours of videotaped deposition in case that doesn’t work.” The trial court told counsel for Topaz and Sable to submit a detailed request for relief on the issue of document production.
On September 15, 2005, Topaz and Sable filed a motion for an order precluding Galante from offering reliance on advice of counsel as a defense. They provided excerpts from Attorney Bull’s deposition in which Attorney Bull stated that he had not produced his entire file. On September 16, 2005, Galante filed an opposition to the motion, promised to provide Topaz and Sable with any additional documents that were received and offered to allow their counsel to redepose Attorney Bull in light of the misunderstanding.
At a hearing on September 19, 2005, Attorney Randolph provided additional documents and represented that Attorney Bull had produced all of the responsive documents. Topaz and Sable’s counsel objected to the trial court that Galante construed the writ of arrest case as narrowly as possible, whereas they believed anything relating to the alleged diversion of property, the incarceration, the holding of the passports, the efforts to confirm the writ of arrest, and anything that had any effect on the Summerfield family relating to these issues should have been produced. In response, Attorney Randolph argued that Topaz and Sable should have noticed Attorney Bull’s deposition and presented a written request for production of documents for other than the writ of arrest case. The court asked, “Is [Attorney] Bull going to testify in person or via satellite?” Attorney Randolph responded, “Your Honor, to tell you the truth, I don’t know yet because it was really—when we got the bills, I was staggered. To tell you the truth, it has to do—I originally anticipated he would testify live. Then, when I got the bill from the deposition, I wasn’t so sure about that.”
The court ruled as follows: “[B]ased upon my reading of the stipulation and what went forward in court, there was an agreement that should be met that you will turn over everything in [Attorney] Bull’s files relating to the arrest proceeding. You’ve just given him some documents. I don’t know if there are some that aren’t there. But that agreement must be fulfilled. And I define arrest proceeding as the proceeding involving the plaintiff in this case and involving them seeking the writ and her getting incarcerated. That’s what’s relevant in this case. . . . [The advice of counsel defense] doesn’t open the door to everything in the attorney-client relationship.”
The trial court asked counsel for Topaz and Sable whether Attorney Bull needed to be redeposed based on the documents that had been produced following his deposition. Their counsel responded, “Just a couple minutes ago is the first I heard that he might not testify at trial. There was a representation made to us that he would be a trial witness. And we conducted our deposition based on that representation. And if he’s not at the trial by some means, we are going to seek a motion to exclude his testimony and to strike the defense. That’s not fair.” The trial court confirmed with Attorney Randolph that he had not decided whether Attorney Bull would testify at trial.
Attorney Randolph said he mentioned to Topaz and Sable’s counsel the previous week that he didn’t know whether he was going to rely on Attorney Bull’s deposition at trial or ask him to go to South Africa. In addition, Attorney Randolph disagreed that he had an obligation to ask Attorney Bull to go to South Africa simply because video conferencing technology was available. He further stated, “I’m not sure when I’m going to make that decision, but I stand by my agreement. As I said before, Your Honor, if they want to take his deposition, I will coordinate with them to make that happen because one thing is for sure, they got the documents after his deposition and it doesn’t matter whose fault it is. It can be fixed now. If they want to try and fix that before the trial begins so they know everything they’re dealing with, then I will not oppose a trial continuance. If they want to do it during the trial, then I will [do] everything I can to work with the court to make sure we work this all out.”
The trial court suggested that the parties hold a telephonic deposition. “[Counsel for Topaz and Sable:] If he’s not going to testify at court, that telephonic deposition isn’t going to be sufficient. . . . Could we have a deadline by which we are going to be told whether he’s going to testify? And then within 24 hours of learning that, we’ll let [Attorney] Randolph know whether we want to depose him or not. [¶] [Attorney Randolph:] I can represent to the court, Your Honor, that if they want to know whether I’m going to go with his deposition or whether I think I’m going to call him live as a witness, of all the things I should be compelled to tell I can’t imagine that—to disclose my trial strategy in that regard is just inappropriate. I invite them to bring a motion to compel that information from me and I’ll respond. [¶] [Counsel for Topaz and Sable:] Ordinarily I would agree with [Attorney] Randolph, but this was a case that before his video deposition was taken, there was not a complete production of his files. That deposition would have proceeded a lot differently if those files had been produced. So I think under those circumstances my request is not unwarranted. [¶] [Attorney Randolph:] If they don’t want to take a chance, Your Honor, then they should depose him. I’ve invited them to do that. I don’t want to be forced in a position until I see how the evidence is going, whether I’m going to call him live or not. The answer is it depends. [¶] [The Court:] I’d have to have things in declarations regarding what representations were made and when they were made, how they were made for an appropriate record regarding any sort of potential sanctions. We are capable of setting the screen up here and doing what was done here.”
Galante and Jacaranda apparently entered into a settlement on September 23, 2005, as to the divorce proceedings in San Francisco. Galante filed a petition for writ of review of the denial of the motion for a continuance and renewed motion to dismiss based on forum non conveniens. This court denied the writ petition.
Jury Trial
A jury trial commenced on September 26, 2005. On September 27, 2005, the parties identified issues remaining for the court to resolve. Counsel for Topaz and Sable stated that they had wanted to retake Attorney Bull’s deposition to authenticate documents that Attorney Bull produced after his deposition. However, they stated that the parties had already agreed no further foundation would be necessary for many of the documents and were continuing to confer as to the remaining documents, so it appeared the deposition would no longer be necessary. On September 29, 2005, in reference to his agreement to provide Attorney Bull’s file, Attorney Randolph stated, “I gave them their election, either to have [Attorney] Bull be redeposed or not. They’ve elected not to redepose him because he’s going to testify as a witness in this case.”
Topaz and Sable filed a brief requesting that the trial court apply the doctrine of collateral estoppel to hold the final order in the Zimbabwe case to be binding on the issues in the instant case. They requested a jury instruction providing as follows: (1) it is uncontested that Galante caused the Zimbabwe court to issue a writ of arrest; (2) the Zimbabwe court determined that no probable cause existed to have Topaz arrested and discharged the writ of arrest; (3) the Zimbabwe court’s determination is binding on the instant case, and therefore; (4) the jury must find Galante did not have probable cause to have Topaz arrested or cause her to be incarcerated.
The trial court refused to give Topaz and Sable’s proposed instruction. The court explained that the issues of probable cause and favorable termination in the malicious prosecution cause of action were matters of law for the court to decide and it was improper to inform the jury in the instruction of the court’s determinations. The trial court stated that after taking judicial notice of the documents and giving them the full force and effect required under principles of comity, the court would likely be collaterally estopped from making a different decision than the Zimbabwe court had made. The court proposed to instruct the jury that the Zimbabwe court had determined “no basis existed to confirm the order of the writ of arrest” and “Galante was ordered to pay the costs of suit to [Topaz].”
At the end of the day, Topaz and Sable’s counsel objected that Attorney Randolph had delivered documents on September 19, 2005, which had been described as the final documents from Attorney Bull concerning the arrest case. The documents were numbered and several of the documents in the series were missing. One appeared to have been partially redacted. Attorney Randolph said the documents that had been withheld related to other cases and not the writ of arrest case. He agreed that the trial court could review the documents that had been withheld to determine whether they related to the instant action.
On September 30, 2005, Galante’s counsel provided the numbered documents to the trial court for review. The trial court found the documents were not related to the arrest proceeding, except for the redacted paragraph of one document. The court ordered the document produced in its entirety. Attorney Randolph argued that the document referred to a case filed by Gerald and Shaina to recover their passports. However, as the trial court noted, Galante had produced the portion of the letter that arguably referred to the passport case.
On October 3, 2005, Attorney Randolph objected to any use of Attorney Bull’s handwritten notes to impeach Galante. Topaz and Sable’s counsel argued that Galante had stipulated to the foundation for the documents in order that they wouldn’t have to take Attorney Bull’s deposition simply to establish foundation. Attorney Randolph stated, “I said you can take his deposition. I’m going to call him as a witness. Counsel said I’d rather just use him at trial, have him as a witness at trial. So that’s what we’re going to do. On the record and personally to him I said what’s your pleasure? . . . And if we get to it, you should look at them. They’re in shorthand. You don’t know who he’s referring to and exactly what’s being said. . . . He has to wait until [Attorney] Bull says what they say.” Counsel for Topaz and Sable responded, “I’m going to ask the court, then, to order [Attorney] Bull to appear for his deposition this evening.”
Attorney Randolph explained that the notes were indecipherable. “When [Attorney] Bull is on the witness stand, [Attorney] Bull will say, ‘That’s my notes. Here’s what it says.” Attorney Randolph further explained, “I have no problem with him using [the handwritten notes] in this case because [Attorney] Bull is going to testify.” The trial court ruled that Topaz and Sable’s counsel could use the notes to question Galante.
Galante was 48 years old at the time of trial. He did not recall having a discussion with Attorney Bull about the possibility of having Topaz put back in jail. Galante understood that the legal action pursuant to which the incarceration was executed was still pending after Topaz and Sable were released from prison. He did not know whether he sought to have the order authorizing the writ of arrest confirmed and did not recall whether Attorney Brooks asked him to dismiss the proceeding after Topaz was released. Galante did not recall seeing the letter that Attorney Brooks wrote on April 15, 2002, requesting dismissal of the arrest case. Reviewing the letter did not refresh his recollection. He did not recall when Gerald, Shaina, and Topaz filed their affidavits opposing his founding affidavit or when he filed his reply. He did not know when the case was concluded or when Gerald, Shaina, and Topaz received their passports. Galante did not recall being advised by anyone that if he continued to prosecute the case it would be dismissed and costs would be imposed against him. He did not recall being advised by anyone that if he continued to prosecute the case it could be construed as spiteful, although he admitted it was possible. When shown a copy of a letter from Attorney Bull addressed to him, he could not recall receiving it.
Attorney Randolph objected to a question about whether the letter from Attorney Bull to Galante was in Attorney Bull’s file. The following discussion was held at sidebar: “[Attorney Randolph:] . . . He can’t establish a foundation for this letter. He asked my client whether he recalls receiving it. He said no. He doesn’t recognize the handwriting on the letter. He can’t use it for any further purpose. He can show it to him to refresh his recollection, but other than that, it can’t come in for that purpose.” Topaz and Sable’s counsel stated that the document was produced by Attorney Bull from his file and Attorney Randolph had agreed there would be no foundation problem as to the file notes and memos. The court explained that there was no foundation problem as to Attorney Bull, but there was a foundation problem as to this witness. Topaz and Sable’s counsel argued that if Attorney Bull had already testified, the letter would have been received into evidence and there would be substantive evidence that Galante had been advised as stated in the letter. The court stated, “I don’t doubt that, but you’re not going to get it through this witness if he’s not going to say he received it.”
The court explained, “Even if it had been produced two years ago, if the witness is not admitting to having received it, there’s no foundation to ask him any more questions about it.” Topaz and Sable’s counsel asked, “Are you telling me I can’t display it to the jury?” Attorney Randolph and the trial court both answered, “Not through this witness.” Topaz and Sable’s counsel stated, “I want the trial terminated right now so I can get [Attorney] Bull in here to establish a foundation for that.” The court responded, “That request is denied because it can be admitted through [Attorney] Bull when [Attorney] Bull testifies. You can recall Mr. Galante if you really absolutely have to have him look at this again. The problem, counsel, I’m going to indicate to you, you know, just because something has been authenticated doesn’t make it necessarily admissible on other grounds.”
Counsel for Topaz and Sable attempted to display Attorney Bull’s handwritten notes for further cross-examination of Galante. Attorney Randolph objected and the trial court dismissed the jury to discuss the issue with counsel. The trial court explained, “When [Attorney] Bull gets here, you can ask him all kinds of questions. You can ask him if this letter was sent to Mr. Galante, if they had conversations about it. You’re right. It goes to the heart of the advice of counsel defense. But if this witness or any witness looks at a document and says, ‘I’ve never seen this before. I don’t recall getting it,’ and there’s been no further foundation laid other than it’s a genuine document in a file, that’s where the questioning has to stop.”
Topaz and Sable’s counsel said, “Well, the jury ought to be able to see that there’s a letter from the lawyer and he claims he never saw it.” The court assured them that the jury would be able to see the letter when Attorney Bull testified. The court explained that there was no foundation for admissibility until Attorney Bull testified. Topaz and Sable’s counsel stated, “[T]hey have indicated that they would produce [Attorney] Bull for a deposition so he could examine these documents. I don’t want to wait until after I’ve rested. I want to depose [Attorney] Bull prior to the time that we have to rest. . . . I want to take his deposition so I can establish whatever needs to be established before we rest our case.” Attorney Randolph agreed with the trial court’s analysis of the law and stated, “[Attorney] Bull is going to testify in this case. I’ve already made arrangements for him to testify next week. Although I don’t know—I made some tentative arrangements because I don’t know how our schedule is coming.”
Topaz and Sable’s counsel asked if their request to take Attorney Bull’s deposition was denied. The trial court noted the sequence of events: that the documents were required to be produced before the deposition, they were produced after the deposition, Topaz and Sable were not able to depose him about documents that appeared to be fairly critical to their case, and now Attorney Randolph was objecting to the documents being entered into evidence. Attorney Randolph responded, “Yes, of course, because that was—I didn’t agree to anything else other than what I agreed to. I am very clear on what the agreement was, and counsel said to me, okay, based upon that agreement, no arrangements need to be made for [Attorney] Bull’s deposition because—in fact, he gave me a deadline and it was a week and a half ago Friday. Counsel said I need to know by this date whether you’re going to call [Attorney] Bull as a witness. . . . Otherwise, he was going to have to make arrangements to take [Attorney] Bull’s deposition. And I either called him or spoke to him and said, okay, I’m calling [Attorney] Bull as a witness. You need not depose him. And he said fine. So I have released [Attorney] Bull from any—in terms of making arrangements with him. I have been in communication with [Attorney] Bull about arranging for him to testify as a witness in this trial. I’ve spent a great deal of time setting that up. And I think it’s now in the middle of trial, to put me in the position, after counsel has made a request to me, I made an agreement with him—he’s now reneging on the agreement.”
Topaz and Sable’s counsel stated that they could depose Attorney Bull telephonically. The court ordered that they could depose him for the purposes of going over documents that were produced after the deposition. Topaz and Sable’s counsel asked for the document that the trial court had reviewed in camera and ordered produced to them. Attorney Randolph apologized and stated that he thought the court had given it to them. The trial court ordered a brief recess during which the document was copied and provided to Topaz and Sable’s counsel.
After the recess, Topaz and Sable’s counsel asked Galante whether Attorney Bull had advised him in May 2002 that it seemed fairly clear Topaz had been in Zimbabwe for vacation and was not involved in the issues between Galante and Jacaranda. Galante could not recall and Attorney Bull’s letter did not refresh his recollection. Galante also could not recall whether Attorney Bull told him that Attorney de Bourbon said to pursue the arrest case would be spiteful.
On October 5, 2002, Attorney Randolph mentioned that he had arranged for Attorney Bull to testify on Wednesday, which might require Attorney Bull to testify out of order. Prior to the start of testimony on October 7, 2005, counsel for Topaz and Sable stated, “I just consulted with [Attorney] Randolph, and [Attorney] Randolph tells me that [Attorney] Bull will be testifying Wednesday morning of next week, come rain or come shine. In other words, if Topaz isn’t finished on Tuesday for some reason, [Attorney] Bull will be taken out of order, which is fine with us.” He asked that Attorney Bull have certain documents with him for cross-examination. Attorney Randolph agreed.
On Wednesday, October 12, 2005, the trial court asked Attorney Randolph about the schedule for Attorney Bull’s testimony. The following discussion took place: “[Attorney Randolph:] Since we’re not going to finish the plaintiffs’ case today, I pushed him back to Monday. [¶] [The Court:] So what are we doing on Friday? . . . [Attorney Randolph:] . . . Assuming that they’re going to rest their case on Friday, which is what I’ve been told, then I will have other witnesses and other evidence available to fill the day Friday. . . . [Counsel for Topaz and Sable:] So [Attorney] Bull is not going to be testifying Friday? [¶] [Attorney Randolph:] No. I’m not going to begin my case until they rest their case. And then on Friday, since I believe in good faith we’re not going to have a full day, I’m going to start my case with someone else. We’re not going to have a full day for one witness, is what I’m saying, because I think we’re going to go into the morning with their case. That’s what I think. [¶] [The Court:] [Attorney] Randolph, I need to know who you’re calling and what the time estimates are because we have a juror who requested to leave a little early on Friday. And while I don’t particularly need to accommodate her, I want to look at the timing and see what the situation is. [¶] [Attorney Randolph:] I understand. I believe I’m going to call Dr. High. That’s what I think.”
Videotaped depositions were shown to the jury on October 14, 2002. Counsel for Topaz and Sable stated that they planned to rest their case following Topaz’s testimony, subject to the receipt of exhibits and subject to Attorney Bull’s testimony. Attorney Randolph insisted on knowing whether Topaz and Sable’s counsel planned to call any other witnesses, because he had motions to make. The following discussion took place: “[Counsel for Topaz and Sable:] . . . if I need some sort of authentication through [Attorney] Bull, then I will again ask for permission to take his deposition so that I can get that authentication. I don’t think that’s going to be an issue based on my discussions with [Attorney] Randolph. But until those documents are received in evidence, I don’t know. [¶] [Attorney Randolph:] Your Honor, I don’t want to begin my case until the people—until the plaintiff has rested and I’ve made some motions. I again invite counsel to put whatever—offer whatever evidence he has to this court before he rests so that we can argue its admission or not, and then I can make motions at the conclusion of the plaintiffs’ case. That’s the order of business. His case doesn’t go on forever so I never can make a motion that he hasn’t presented sufficient evidence for one or more of the counts.”
The portions of the videotaped depositions of Paul Segal and Andrew Meldrum shown to the jury were not transcribed by the court reporter and do not appear to be part of the record on appeal. However, there do not appear to be any issues relevant to the testimony of these witnesses.
Topaz and Sable’s counsel asked that Attorney Bull’s testimony be considered part of the plaintiffs’ case and for the trial court to order Attorney Bull to testify as a witness in their case. Attorney Randolph responded, “He’s a non-retained expert. [Topaz and Sable do not] have him under subpoena. I’ve invited [their counsel] a number of times . . . to take his deposition at any time. And [counsel] elected not to do that, Your Honor. [¶] In fact, I told him on the record . . . that it’s his decision whether to take his deposition or not, be able to submit the prior deposition which is already in the record, or take another deposition. . . . I think I said it’s his option what to do, but I’m not going to commit one way or another what I’m going to do with respect to those items. That’s on the record of this case. [If counsel] has him under subpoena, then he’s welcome to call him as a witness.”
Topaz and Sable’s counsel stated that they did not need Attorney Bull’s testimony to fulfill any of the elements of their case, but wanted to offer the exhibits that should have been produced prior to Attorney Bull’s deposition. The court ruled that Topaz and Sable could rest their case subject to the introduction of evidence, and if in light of Galante’s motions, they needed testimony from Attorney Bull, they would be permitted to submit deposition testimony to be read to the jury or Attorney Bull could testify on Monday.
The jury was called back in. Counsel for Topaz and Sable asked a few questions of Topaz and rested plaintiffs’ case subject to evidentiary issues. The trial court permitted Attorney Randolph to call the defense’s first witness. Attorney Randolph responded, “Thank you, Your Honor. [¶] The defense wishes to call no witnesses and rests on the state of the evidence.” The trial court dismissed the jury for the weekend and ordered a recess.
When the court proceedings resumed, Attorney Randolph referred to comments he made on September 19, 2005, to argue that he had always reserved his right not to call Attorney Bull as a witness. Attorney Randolph objected to the admission of several documents, including Attorney Bull’s handwritten notes of conversations, that were produced after Attorney Bull’s deposition and were unintelligible without the testimony of a witness who could read them. The trial court stated, “There is a likelihood that there has been an abuse of the court’s orders in discovery and there may be a sanction. . . . [If] I determine there is a sanction, that the documents would come in as a sanction. Because as I recall, I specifically said that they would be permitted to take this deposition. . . . You kept saying, ‘We can work it out. It’s not a problem. . . .’ . . . Again, I’m very close to saying that as a discovery sanction, these documents come in.” Attorney Randolph argued that the court’s recollection was incorrect.
The court ruled that the notes from Attorney Bull’s file were admitted. Although the court agreed that portions of Attorney Bull’s handwritten notes were indecipherable, the court denied Galante’s request to exclude the handwritten notes. The parties selected pages of Attorney Bull’s typed and handwritten file notes for admission to evidence. Topaz and Sable’s counsel requested that the court reopen the evidence to allow them to read portions of Attorney Bull’s deposition into the record. Galante opposed the request. The trial court granted it. The trial court also granted Topaz and Sable’s motion to amend the complaint to conform to proof to add a cause of action for abuse of process on the theory that Galante filed the writ of arrest proceeding to gain leverage in the divorce proceedings against Jacaranda.
The trial court excluded evidence of a preliminary psychological report prepared for Galante’s use in the divorce proceedings in Zimbabwe. The trial court also denied Topaz and Sable’s request to instruct the jury that Galante had no defense based on advice of counsel.
Prior to presenting Attorney Bull’s deposition testimony to the jury on October 18, 2005, Attorney Randolph objected to the video deposition because it was not taped pursuant to the requirement of a certified videographer. Counsel for Topaz and Sable argued Galante was estopped from objecting, because he made the arrangements for the videotaping. The trial court denied the request to show the visual portion of the deposition. The trial court instructed the jury that due to events in the trial, the court had determined it was appropriate for the jury to hear additional testimony by way of reading a deposition. Both attorneys read portions of Attorney Bull’s deposition testimony to the jury.
Jury Instructions
The court provided the following instruction on the final judgment in the underlying writ of arrest case: “The law permits a judge, such as myself, to look at the court documents of another court, state, or country and to make certain conclusions and observations and to advise you of the contents of those documents. This is called ‘Judicial Notice.’ The attorneys in this case have asked me to do so with respect to the proceedings in the Zimbabwe court. [¶] You are advised that there exists a Zimbabwean court file entitled Edward Elio Galante versus Gerald Summerfield and Shaina Summerfield and Topaz Summerfield. In that file, it is reflected that on March 2, 2002, Judge Ndou of the High Court of Zimbabwe signed a Writ of Arrest for the arrest of Gerald, Shaina, and Topaz Summerfield. [¶] That file also contains a December 20, 2002 ruling and judgment of the High Court of Zimbabwe, Judge Makoni presiding, with respect to Topaz Summerfield. As to whether Mr. Galante’s provisional order resulting in the arrest of Topaz Summerfield should be confirmed, that judge determined that no basis existed to confirm the order of the Writ of Arrest and the Writ was discharged. Further, Mr. Galante was ordered to pay the costs of suit to Ms. Topaz Summerfield. [¶] Whether reasonable grounds existed for the arrest of plaintiff are not matters for your determination or consideration. [¶] Whether the plaintiff received a favorable termination of the earlier legal proceedings are not matters for your determination or consideration.”
The court instructed the jury in the language of Judicial Council of California Civil Jury Instruction (2006-2007) CACI No. 1405, as modified to reflect that the court had determined there was no probable cause for the writ of arrest: “Topaz Summerfield claims that she was wrongfully arrested by Edward Galante. To establish this claim, Topaz Summerfield must prove all of the following: [¶] 1. That Edward Galante intentionally caused Topaz Summerfield to be wrongfully arrested; [¶] 2. That Topaz Summerfield was actually harmed; and [¶] 3. That Edward Galante’s conduct was a substantial factor in causing Topaz Summerfield’s harm.”
The court also read the following special instruction proposed by Topaz and Sable on the issue of false imprisonment: “Edward E. Galante is subject to liability to Topaz Summerfield and/or Sable Summerfield for false imprisonment if: [¶] a) Edward E. Galante’s acts intended to confine Topaz Summerfield and/or Sable Summerfield, within a fixed boundary, and [¶] b) His acts directly or indirectly resulted in such confinement of Topaz Summerfield and/or Sable Summerfield; and [¶] c) Topaz Summerfield and/or Sable Summerfield is conscious of the confinement or is harmed by it.”
The court provided special instructions requested by Topaz and Sable concerning the actor’s intent. The court also provided the following instruction on forseeability of harm that had been proposed by Topaz and Sable and modified by the court: “(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which occurred does not prevent him from being liable. [¶] (2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, [it] appears to the Court highly extraordinary that it should have brought about the harm.”
On the court’s own motion, the jury was instructed on the elements of the wrongful use of civil proceedings in the language of CACI No. 1501: “Topaz Summerfield claims that Edward Galante wrongfully brought a lawsuit against her. To establish this claim, Topaz Summerfield must prove all of the following: [¶] 1. That Edward E. Galante was actively involved in bringing the lawsuit; [¶] 2. That the lawsuit ended in Topaz Summerfield’s favor; [¶] 3. That no reasonable person in Edward Galante’s circumstances would have believed that Topaz Summerfield was involved in the possession of and secreting of Edward Galante’s alleged personal property; [¶] 4. That Edward Galante acted primarily for a purpose other than succeeding on the merits of the claim; [¶] 5. That Topaz Summerfield was harmed; and [¶] 6. That Edward Galante’s conduct was a substantial factor in causing Topaz Summerfield’s harm.”
The jury was instructed in the language of CACI No. 1505 on the affirmative defense of reliance on counsel: “Edward Galante claims that he had reasonable grounds for bringing or continuing a lawsuit because he was relying on the advice of an attorney. To succeed, Edward Galante must prove both of the following: [¶] 1. That Edward Galante made a full and honest disclosure of all the important facts known to him to the attorney; and [¶] 2. That he reasonably relied on the attorney’s advice.”
The court read stipulations to the jury that had been entered into by the parties. With respect to the Zimbabwe court’s file in the writ of arrest proceeding, the court stated, “The parties stipulate that on March 18, 2002, Gerald, Shaina, and Topaz Summerfield submitted documents to the High Court of Zimbabwe to oppose Mr. Galante’s application in the arrest proceeding. On August 21, 2002, Mr. Galante filed documents in response.” The documents were not submitted to the jury.
The trial court also instructed the jury, “In the course of this litigation, counsel for the parties made agreements with one another regarding the release of documents contained in [Attorney] Bull’s files related to the legal work done by him on the Writ of Arrest case that is the subject of this trial. Defendant produced one of those documents with a paragraph removed. That document has been identified as Exhibit 34, page 582. Defendant informed the court and plaintiff that the subject matter of that paragraph did not relate to the Writ of Arrest proceeding and was therefore, not part of that agreement. Plaintiff requested that the court review the document containing the text of the removed paragraph. The court did such a review and determined that the removed paragraph indeed related to these proceedings. The failure to provide the document in its entirety was improper. The court ordered that the text of the removed portion of the document be provided to plaintiff. The entire document is Exhibit 38.”
Closing Argument
In Galante’s closing argument, Attorney Randolph made the following arguments: Topaz talked her way into custody and being punished by the police; Topaz put Sable in harm’s way by insisting on taking her to the police station; a client is entitled to rely on his attorney’s advice and the judge’s finding that a case has been stated for a writ of arrest to be issued; and all of the events after the writ of arrest were pursuant to lawful orders of the court carried out by the deputy sheriff and Galante was not a factor in the manner in which those orders were carried out. Attorney Randolph argued that Topaz’s testimony about what happened at the police station did not make sense and the things she said to the police had resulted in her imprisonment. It was her behavior, her arrogance and disrespect, “all the way back to resisting arrest,” that caused her to end up in Chikurubi.
Attorney Randolph stated as to the substantial factor element of the various instructions: “All of the instructions say that my client had to be a substantial factor in any of these bad things happening. When you go through the instructions, you’ll see the words, repeatedly, ‘substantial factor,’ ‘substantial factor.’ You’ve already seen the advice of counsel defense. The rest of them have ‘substantial factor,’ ‘reasonably rely on your attorney.’ My client was not the reason that Topaz and Sable went to Chikurubi and spent that night there. That responsibility falls on the shoulders of one person, Topaz Summerfield. You are going to prison as a punishment for resisting arrest. And whether the police were right or wrong in saying that to her, that’s what happened. She admits it. And that’s what they did.”
As to the continuation of the proceedings after Topaz’s release from prison, Attorney Randolph argued in essence that Attorney Bull continued the case for reasons having to do with his own personal liability and did not inform Galante of advice from Attorney de Bourbon to drop the case. Attorney Randolph argued that when Gerald, Shaina, and Topaz filed their legal argument in opposition, the case did not actually concern passports or airline tickets, because Topaz had her passport and Gerald testified that he could get new passports from the British Embassy when he wanted to and Topaz’s tickets with a return date in April had expired. Instead, he argued, it was all about costs and punitive damages. He argued, “[Galante and Attorney Bull] couldn’t outright dismiss the case because if they dismissed it, that would be used to [the Summerfields’] advantage against [Attorney] Bull, against whom they were seeking punitive damages. [¶] So they had to respond—when I say ‘they,’ Mr. Galante and [Attorney] Bull had to respond to the heads of argument in order to confirm the provisional order. But the pleadings confirm [Attorney] Bull testified that it was not about arrest. It was only about the costs.”
In support of this argument, Attorney Randolph referred to the file note in which Attorney Bull stated he told Attorney Matinenga that he wanted the answering affidavit filed to correct the actual position so that there could be no suggestion that he had acted improperly or in bad faith and that what was done was reasonable and fair. Attorney Randolph argued, “So the key point is here [Attorney] Bull wants the case to proceed. Why? Because he doesn’t want to be tagged with punitive damages. [Counsel for Topaz and Sable] says that it was my client that wanted to press this case that made it to go forward and wanted an arrest. That’s not true. [Attorney] Bull needed the case to go forward. He couldn’t dismiss it because the Summerfields had turned it into an offensive action. Now they’re going after [Attorney] Bull for punitive damages. That’s what [Attorney] Bull is saying here. And so we’ve got to keep litigating.”
Attorney Randolph noted that Attorney de Bourbon’s opinion that it would be spiteful to continue to pursue the case was a comment expressed to Attorney Bull and the evidence was that Galante said Attorney Bull never told him that. Attorney Bull’s file note stated that Galante accepted Attorney Bull’s advice that settlement was preferable because there was a risk of losing on the issue of legal costs. The October 9, 2002 file note says they put forward a settlement proposal, but Gerald, Shaina, and Topaz would not accept it, and Attorney Bull saw no alternative other than to arguing the matter. Attorney Randolph argued these notes showed Attorney Bull told Galante how the litigation would proceed and Galante followed his advice, because he didn’t want punitive damages assessed against Attorney Bull. He argued the evidence was that Attorney Bull asked Galante if he could take steps to have Topaz released and Galante gave him authority to do whatever was necessary.
During a break, counsel for Topaz and Sable objected once again to the trial court’s exclusion of the final order issued in the underlying matter. They argued that the court’s exclusion of the order had allowed the defense to misrepresent the issues in the underlying proceeding and argue that the case was pursued to recoup costs. Attorney Randolph argued that he had merely characterized Attorney Bull’s testimony and the documents in evidence. The trial court found Attorney Randolph’s argument was based on Attorney Bull’s testimony and documents in evidence, therefore the court denied counsel for Topaz and Sable’s request to reconsider admission of the final order.
Attorney Randolph resumed his closing argument and stated: “For each of the allegations against my client, you’ll find in the instruction that you must find that my client’s activities were a substantial factor in causing the alleged damages. [¶] For example, in the jury instruction regarding false imprisonment, you see the word the actor’s conduct must be a substantial factor. I tell you every time you see the words ‘substantial factor,’ ladies and gentlemen, that is the defense in all of the counts for my client because you go to an attorney, you seek advice, the attorney says this is what you should do, the attorney files a lawsuit in the court, the judge in the court considers the evidence that’s presented and issues a writ of arrest with certain terms and conditions . . . . And after that, you have a situation where, notwithstanding that, when Topaz Summerfield went to the Highlands Police Station, I respectfully suggest to you that by virtue of her own admitted behavior, which, by the way, she admits to because she thinks that puts her in a sympathetic light – by her own admitted behavior that [the police] took her to Chikurubi as a punishment for her abusive and arrogant behavior. [¶] With all of those facts, no matter what the count is, I respectfully suggest to you that my client’s—what he did in the first place was go to an attorney and say, ‘what do we do legally here?’ and that, in no court of law in any country, constitutes a substantial factor such that he should be liable for any damages in this case.” “There are other jury instructions, but in each one you will see the words that you have to find that my client’s behavior in this case was a substantial factor. And in no situation was my client’s behavior a substantial factor.”
Jury Deliberations and Verdict
During the jury’s deliberations, they inquired whether the term “substantial factor” in the verdict form and some of the jury instructions was equivalent to the term “legal cause” in the forseeability instruction that stated: “The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct it appears to the court highly extraordinary that it should have brought about the harm.” The jury asked: “‘Alternatively, is “substantial factor,” as noted above, equivalent to the phrase “more likely than not” in the jury instructions [regarding burden of proof]?’”
The jury also noted that the jury instruction for wrongful arrest used the phrase “wrongfully arrested,” but the verdict form simply asked whether Galante had Topaz and Sable “arrested.” The jury asked the court: “‘Please explain the omission of “wrongfully.”’”
Topaz and Sable’s counsel requested that the trial court strike the portion of the foreseeability instruction at issue and tell the jury it was not a correct statement of the law. In the alternative, counsel asked to withdraw the instruction entirely. Attorney Randolph requested a mistrial, which the court denied. Attorney Randolph noted that the jury was clearly asking for an explanation of the term “substantial factor” and the court agreed. The trial court advised the jury to disregard the second paragraph of the instruction containing the term legal cause.
Both the instruction on wrongful arrest and the verdict form were taken from CACI. Counsel for Topaz and Sable asked that the word “wrongfully” be deleted from the jury instruction so that it would be consistent with the verdict form, or instruct the jury on the meaning of the word and state that the issue had been resolved against Galante. They argued that whether the arrest was wrongful was based on whether there was probable cause for the writ to be issued, an issue that had been resolved against Galante. Attorney Randolph argued that the term “wrongfully arrested” referred to the substantial factor analysis. He requested that the court add the word “wrongfully” to the verdict form. Attorney Randolph noted his argument to the jury was that Galante had no intention of having Topaz arrested in a wrongful manner. Counsel for Topaz and Sable admitted that their research showed the term “wrongful” meant proceeding other than in good faith and suggested that the court instruct the jury that “wrongful” refers to a situation where the defendant acts other than in good faith in seeking the arrest of the plaintiff. Attorney Randolph asked for a mistrial based on ambiguity in the instructions. However, he submitted to plaintiffs’ request with respect to the wrongful arrest.
The court sent the following instruction to the jury: “‘The verdict form should conform with the instruction and “wrongfully” should be placed in the first question on your verdict form to read as follows: 1. Did Edward Galante intentionally cause Topaz Summerfield to be wrongfully arrested? [¶] Presiding juror is instructed to place the word “wrongfully” as indicated above in the form and initial it. For purposes herein, “wrongfully” refers to a situation where a defendant acts other than in good faith seeking the arrest of plaintiffs.’”
Attorney Randolph argued that the issue of probable cause should have been an issue for the jury. Attorney Randolph requested a mistrial with respect to the allegations of false imprisonment and false arrest and malicious prosecution where the issue of probable cause had been decided by the court. The court denied the request. Attorney Randolph requested that the term “wrongfully” be added to the false imprisonment instruction so that if the jury found Galante acted in good faith, then he did not wrongfully seek to have anyone falsely imprisoned. Counsel for Topaz and Sable argued that the defense to false imprisonment was based on probable cause, not good faith. The court denied the request to add “wrongfully” to the false imprisonment instruction.
On Monday, October 24, 2005, the jury returned its verdict. The jury found Galante did not intentionally cause Topaz Summerfield to be wrongfully arrested. However, Galante did intentionally cause Topaz and Sable to be falsely imprisoned. Topaz and Sable were conscious of the confinement and they were harmed. Galante’s conduct was not a substantial factor in causing harm to Topaz and Sable.
In addition, although Galante was actively involved in bringing or continuing a lawsuit against Topaz, he made full and honest disclosure of all the important facts known to his attorney and he reasonably relied on his attorney’s advice. Galante sought a writ of arrest for Topaz, but he did not use this legal procedure to gain an advantage in legal proceedings involving the disposition of marital and separate property assets or other matters related to his litigation with Jacaranda. Galante was exercising his legal rights or protecting his economic interest. His conduct was lawful and consistent with community standards, not outrageous. He had a good faith belief that he had a legal right to engage in the conduct. The trial court entered judgment in favor of Galante that day.
Topaz and Sable filed a motion for judgment notwithstanding the verdict and a motion for a new trial. The trial court denied the motions on December 28, 2005. Topaz and Sable filed a timely notice of appeal.
In the trial court and on appeal, the parties relied on California law. The parties have not requested or argued the application of Zimbabwe law. Therefore, we have applied California law in this case.
Evidentiary Rulings
Topaz and Sable contend prejudicial error resulted from the trial court’s erroneous exclusion of certain evidence. We disagree.
A. Standard of Review
Evidence Code section 354 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination.” A miscarriage of justice should be declared only when the appellate court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Videotape of Attorney Bull Deposition
After Attorney Randolph rested without calling witnesses, the trial court ruled that portions of Attorney Bull’s deposition could be presented to the jury. The trial court allowed portions of the deposition to be read, but would not allow the playing of a videotape of the deposition. Topaz and Sable argue the trial court erred in excluding the videotape version of the deposition.
We disagree that the trial court abused its discretion. The trial court retains considerable discretion regarding the presentation of evidence, particularly when an evidentiary sanction is involved. Although portions of Attorney Bull’s deposition testimony were given different interpretations by counsel in argument, Topaz and Sable have not explained how viewing the video portion of Attorney Bull’s deposition would have clarified the statements at issue. They do not contend the trial court erred in determining what portions of the deposition were admissible. Topaz and Sable have fallen short of demonstrating error and that it is reasonably probable they would have obtained a more favorable result had the jury been allowed to see the video portion.
C. Page 621 of Attorney Bull’s
Attorney Bull’s handwritten notes from the date of the arrest reflect a 10-minute conversation with the deputy sheriff as follows: “Topaz has a child she’s breastfeeding. I told him the prisons had [unintelligible] facilities if [unintelligible.] He has to do his job. Seems the parents are at Wingate.” The next notation in Attorney Bull’s file was “Call to [Galante] (5 mins.) Reported[.] Agreed D/Sh proceed.”
At trial, Galante read “D/Sh proceed” as “I should proceed.” He said they agreed that Attorney Bull should proceed to have Topaz released. Topaz and Sable’s counsel argued that Attorney Bull had written “D/Sh” and the note meant that Galante and Attorney Bull agreed the deputy sheriff should proceed with the arrest even though Topaz had Sable with her. Attorney Randolph argued a third interpretation was that Attorney Bull reported his conversation with the deputy sheriff and that Attorney Bull had agreed with the sheriff that he should proceed. In support of this interpretation, he argued that neither Attorney Bull nor Galante had the authority to tell the deputy sheriff to proceed.
In rebuttal, Topaz and Sable’s counsel again argued that Attorney Bull’s file note from the day of the arrest was a “D,” not an “I” as had been suggested by Galante, and the file note said “Agreed. D should proceed.” He attempted to rely on another page of Attorney Bull’s file notes to demonstrate the manner in which Attorney Bull wrote the letter D. Attorney Randolph objected that the second page was not in evidence and he had already presented his closing argument based on the documents in evidence. Counsel for Topaz and Sable believed that the document had been received in evidence, but if not, they made a motion to reopen the evidence to receive the document. They argued that the jury would be misled without it. Apparently, the trial court denied their request to receive it into evidence.
The second note that Topaz and Sable attempted to rely on was from a conversation with Attorney Brooks on March 7, 2002, and appears to state, “Summerfield will allow the D/Sh. one last time to go throughout the house. But not [Galante].”
On appeal, Topaz and Sable contend the trial court erred by refusing to reopen the evidence during closing argument to admit an additional page of Attorney Bull’s notes to further demonstrate how Attorney Bull writes the letter “D.” The trial court did not abuse its discretion in denying the request to reopen the evidence phase of trial.
The handwritten notation in question clearly reads “D/Sh” and moreover, other examples of the letters “I” and “D” are contained in the notes that were admitted into evidence. It was not necessary to admit another page of handwritten notes as an exemplar of Attorney Bull’s handwriting. Moreover, Topaz and Sable have not shown a different result would have come from admitting another page of Attorney Bull’s indecipherable notes.
D. Clinical Psychologist Francois de Marigny Reports
Topaz and Sable sought to introduce a portion of an interim report Galante had prepared in connection with the Zimbabwe divorce proceedings. They claimed the interim report was inconsistent with the final report filed with the court in the proceedings, and therefore, it was evidence that Galante manipulated legal proceedings, contrary to Attorney Randolph’s statements in opening argument that Galante played by the book. We disagree.
In the fall of 2001, de Marigny prepared an interim report assessing custodial rights and the children’s emotional state. The report commented on Galante’s test scores on a psychometric test called the Minnesota Multiphasic Personality Inventory-2 (MMPI) as follows: “[Galante’s MMPI] yielded a valid profile. All the clinical scores, other than Scale iv. Psychopathic Deviate, were within ranges of the average population. Psychopathic Deviate had a T score of 74. [¶] People with similar profile configurations usually harbour resentment and hostility and one can expect difficulty in appropriately expressing negative emotions. Typically, these people have a low tolerance of frustration and are impulsive. They are seen as being strong minded, rigid and possibly over-sensitive. At an interpersonal level, people with similar profiles often have a history of difficulties in forming warm intimate relationships. Marital difficulties are probable. Others may experience them as insensitive to their needs. [¶] People with similar profiles are often associated with [passive-aggressive] (aggressive type) personality styles.”
The final report simply stated, “Validity: A valid profile was yielded, indicating the Father responded in a frank and open manner and indicated a willingness to admit to minor faults and shortcomings. [¶] Clinical Scales: This is a valid profile. None of the scores was sufficiently elevated so as to indicate the presence of any severe psychopathology which would render Father an unsuitable custodian.”
We do not find the two excerpts to be inconsistent. The first version in the preliminary report contains a raw test score that is meaningless without additional explanation, whereas the final report interprets the test scores as related to the custody matter before the Zimbabwe court. We note that the interim report made negative statements about Jacaranda that were similarly deleted, simplified or interpreted in the final report. In addition, the interim report clearly stated, “As far as psychometric testing is concerned, the MMPI’s alone are inconclusive and ideally should be part of a battery of other personality tests.” The trial court did not abuse its discretion when it excluded the evidence from the interim report, as it was far more prejudicial than probative.
E. Final Judgment in the Zimbabwe Proceeding
Topaz and Sable contend the trial court erred by excluding the final judgment issued by the Zimbabwe court. They further contend the instruction describing the final judgment was incomplete and misleading. Although the final judgment might have been admitted with a limiting instruction and the instruction given was incomplete, Topaz and Sable have not shown it to be reasonably probable that a more favorable outcome would have been reached had the final judgment been admitted or a complete description of the judgment provided to the jury.
Although a copy of the final judgment was included in the record on appeal as part of the exhibits that were submitted to the jury, both parties agreed at oral argument that the jury did not have a copy of the judgment to review.
A court may take judicial notice that findings of fact were made in a court order, although the court may not take judicial notice of the truth of those findings. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565.) A judicially noticed fact is, in effect, treated as true for purposes of proof and no additional evidence is required to prove the matter. (Sosinsky v. Grant, supra, 6 Cal.App.4th at p.1564.) “Therefore, a finding of fact that was judicially noticed would be removed as a subject of dispute and would be accepted for evidentiary purposes as true. The effect would be that without resort to concepts of collateral estoppel or res judicata that would litigate whether the issue was fully addressed and resolved, a finding of fact would be removed from dispute in the other action in which it was judicially noticed.” (Id. at p. 1564.) Judicial notice of findings of fact does not mean that the findings of fact are true; it means only that those findings of fact were made. (Id. at p. 1564-1565.)
“‘Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.’ [Citation.]” (Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1564, emphasis added.) “‘[F]acts’ which were in actuality the subject of a reasonable dispute [do not] become, after the dispute has been judicially decided, ‘facts’ which could not reasonably be subject to dispute merely because the doctrines of res judicata and collateral estoppel, if properly shown to apply, might operate to prevent further litigation of the dispute.” (Id. at p. 1566.) “Whether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time. The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided. . . . [Citations.]” (Id. at p. 1569.)
In the underlying arrest action, the Zimbabwe court issued a final order finding Galante failed to show that Topaz had anything to do with the removal of property from Macheka Farm and had not established a basis for his belief that Topaz traveled to Zimbabwe for reasons related to his divorce. Therefore, the Zimbabwe court found no basis to confirm the order in respect to Topaz. Moreover, the Zimbabwe court ordered Galante to pay Topaz’s costs of suit based on the court’s finding that Galante had “no basis whatsoever for dragging” Topaz to court.
The instruction that was given in this case informed the jury that the Zimbabwe court found no basis existed to confirm the provisional order and ordered Galante to pay Topaz’s costs. The instruction further informed the jury that whether reasonable grounds existed for Topaz’s arrest and whether Topaz received a favorable termination in the underlying action were not matters for the jury to decide. Although the statements in the instruction were correct, they were incomplete. The instruction should also have informed the jury that the Zimbabwe court awarded costs to Topaz because Galante had shown no basis for pursuing the arrest action against her. In other words, the Zimbabwe court did not simply find that there was no basis to confirm the order, but also found there was no basis for Galante to have instituted the proceedings, and awarded costs accordingly.
Topaz and Sable have not shown on appeal that they were harmed as a result of the exclusion of the final judgment or the incomplete jury instruction. They contend the jury may have believed that the Zimbabwe court did not determine whether there was any basis for the writ of arrest when it was issued. Therefore, they argue, the jury may have concluded there was a basis for the writ of arrest and Topaz was not wrongfully arrested. However, the validity of the writ of arrest was not presented for the jury’s determination in the wrongful arrest instruction or the verdict form. The issues of probable cause and favorable termination of the underlying arrest action were expressly reserved to the trial court. Topaz and Sable also contend that because the jury was not informed that the Zimbabwe judgment was binding, the jury found the arrest was not wrongful. However, no issue was presented for the jury to determine that had been conclusively determined by the Zimbabwe judgment.
Topaz and Sable also contend the jury should have been instructed that the findings of fact in the Zimbabwe judgment conclusively established Topaz was arrested pursuant to the writ of arrest and not as a result of her own conduct. This is incorrect. Taking judicial notice of the finding by the Zimbabwe court that Topaz was arrested pursuant to the writ of arrest would not mean that the finding was true; it means only that the Zimbabwe court made that finding. Whether the finding that Topaz was arrested pursuant to the writ of arrest is true is a different question than whether the truth of that finding may be litigated a second time. In the underlying case, the Zimbabwe court considered whether the provisional order should be confirmed. There is no evidence that the Zimbabwe court determined the issue of whether Topaz was arrested pursuant to the writ of arrest. Topaz and Sable have not shown that the doctrine of collateral estoppel conclusively established that Topaz was arrested pursuant to the writ of arrest and barred Galante from arguing that Topaz was arrested for reasons other than the writ of arrest.
Topaz and Sable contend exclusion of the judgment allowed Galante to mischaracterize the nature of the continuing action against Topaz as merely an issue of costs. Since the jury found Galante relied on the advice of his counsel, they did not reach the merits of the malicious prosecution claim and the nature of the action. Moreover, the instruction stated that the Zimbabwe court found there was no basis to confirm the order, which made it clear that more than mere costs were at stake in the proceeding.
False Arrest and False Imprisonment
A. Standard of Review
“‘[A] special verdict’s correctness must be analyzed as a matter of law.’ [Citations.] Other principles governing review of a claim of inconsistency in a verdict depend on the type of verdict rendered. When a special verdict is involved as here, a reviewing court does not imply findings in favor of the prevailing party. [Citations.] This rule stems from the nature of a special verdict and its ‘“recognized pitfalls,”’ namely, that it requires the jury to resolve all of the controverted issues in the case, unlike a general verdict which merely implies findings on all issues in one party’s favor. [Citations. Fn. omitted.] Under these circumstances, ‘“‘[t]he possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings. . . .’”’ [Citations.]” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.)
“A general verdict will not be set aside unless there is no possibility of reconciling the general and special verdicts under any possible application of the evidence and instructions. [Citations.] But this rule of reconciliation does not apply to inconsistencies between questions in a special verdict because, as stated, ‘“there is no such presumption in favor of upholding a special verdict.”’ [Citations.]” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 679.)
B. Applicable Law
False imprisonment is the intentional confinement of a person, without consent or lawful privilege, for an appreciable length of time. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 372-373.) False arrest is not a separate tort from false imprisonment. (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673; Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn.3; Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 372 fn.7.) False arrest is merely one way of committing the tort of false imprisonment. (Ibid.)
“As a general proposition, the fact that an arrest is made pursuant to a warrant defeats a claim of unlawful imprisonment, because the warrant provides a form of privilege or justification to interfere with a plaintiff’s liberty. [Citations.] The burden therefore falls on the plaintiff to demonstrate the warrant’s invalidity and to overcome any privileges or immunities that attach by virtue of it. [Citations.]” (Hiber v. Creditors Collection Service of Lincoln County, Inc. (1998) 154 Or. App. 408, 413.)
It appears that in California, if a civil arrest warrant was issued based on an affidavit that contained statements made on information and belief, but the affidavit did not comply with a statutory requirement to state the facts upon which the belief is founded, the warrant was void and the affiant was liable for the arrest made under it. (Fukumoto v. Marsh (1900) 130 Cal. 66, 68-69.) When a judge has determined “in the exercise of the jurisdiction committed to him by the law, that the affidavit by its statements of facts was sufficient to entitle the party applying for the order, to hold that such party is liable for damages for the erroneous judgment of the judge, would impose on him a responsibility not warranted by the law.” (Dusy v. Helm (1881) 59 Cal. 188.) However, “[w]here the judge has in fact no jurisdiction to act, his order of arrest is void; and whether he has jurisdiction must be determined from the affidavit itself, and not from what the judge thinks it authorizes him to do. The plaintiff must see to it that he is clothed with actual, not merely apparent, authority before he can deprive the defendant of his liberty.” (Fukumoto v. Marsh, supra, 130 Cal. at p. 70.)
“The provocation, motive and good faith of the defendant in an action for false imprisonment constitute no material element in the case and can be considered only where punitive or exemplary damages are asked, and then only as affecting the measure of such damages.” (Singleton v. Perry (1955) 45 Cal.2d 489, 494, citing Neves v. Costa (1907) 5 Cal.App. 111, 117-118.)
Causation is a necessary element in all tort cases. (Hibma v. Odegaard (7th Cir. 1985) 769 F.2d 1147, 1155.) “California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations. [Citation.] Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury. [Citations.] The substantial factor standard generally produces the same results as does the ‘but for’ rule of causation which states that a defendant’s conduct is a cause of the injury if the injury would not have occurred ‘but for’ that conduct. [Citations.] The substantial factor standard, however, has been embraced as a clearer rule of causation – one which subsumes the ‘but for’ test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact. [Citations.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969.)
“The term ‘substantial factor’ has not been judicially defined with specificity, and indeed it has been observed that it is ‘neither possible nor desirable to reduce it to any lower terms.’ [Citation.] . . . Undue emphasis should not be placed on the term ‘substantial.’ For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s injury but is nevertheless urged as an insubstantial contribution to the injury. [Citation.] Misused this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’ [Citation.]” (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 969.)
“The law has for a long time recognized a distinction between intentional and negligent torts, and has generally recognized fewer defenses, and been more inclined to find that defendant’s conduct was the legal cause of the harm complained of, where the tort is intentional. [Citation.] Indeed, it appears that many of the limitations upon liability that are subsumed under the doctrine of ‘proximate cause,’ as usually expounded in negligence cases do not apply to intentional torts.” (Tate v. Canonica (1960) 180 Cal.App.2d 898, 904.)
“‘There are no rules which relieve the actor from liability because of the manner in which his conduct has resulted in the injury such as there are where the liability of a negligent actor is in question [citation]. Therefore, the fact that the actor’s conduct becomes effective in harm only through the intervention of new and independent forces for which the actor is not responsible is of no importance [citation]. So too, the fact that the operation of the new force was unexpectable by the actor or even that after the event it appears highly extraordinary that it had operated does not relieve the actor from liability for harm of the type which he intended to inflict [citation]. So too, the wrongful character of the intervening force is of no moment. This is so not only where the injury is brought about by an intervening negligent act of a third person [citation], but also where it is brought about by the tortious or criminal act of a third person which itself is intended to bring about the harm which is sustained by the other [citation].” . . . [T]he notion of independent intervening cause has no place in the law of intentional torts, so long as there is a factual chain of causation.” (Tate v. Canonica, supra, 180 Cal.App.2d at p. 904.)
“[T]he notion of intervening or superseding cause, as commonly applied in negligence cases, is really not a matter of causation, but an attempt to spell out rules of law limiting the liability of a negligent act, using the language of causation . . . . If attention is directed, not at the original risk but at the intervening cause itself and whether it should supersede the defendant’s responsibility—if, in other words, the question is asked, why should he not be liable for what he has clearly caused—the answer is much easier to give. The question becomes one of whether the intervening cause is, in retrospect, so abnormal and irregular, so external, foreign and unrelated to the defendant’s original conduct, that it should relieve him of liability.” (Tate v. Canonica, supra, 180 Cal.App.2d at p. 908.)
C. False Arrest
On appeal, Topaz and Sable contend the jury’s finding that Galante did not intentionally cause Topaz to be wrongfully arrested is incorrect as a matter of law. We agree.
CACI No. 1405, which is the CACI instruction on the essential elements of false arrest with a warrant, provides: “[Name of plaintiff] claims that [he/she] was wrongfully arrested by [name of defendant]. To establish this claim, [name of plaintiff] must prove all of the following: [¶] 1. [That [name of defendant] arrested [name of plaintiff];] [¶] [That [name of defendant] intentionally caused [name of plaintiff] to be wrongfully arrested; ] [and] [¶] 2. That [insert facts supporting the invalidity of the warrant or the unlawfulness of the arrest, e.g., ‘the warrant for [name of plaintiff]’s arrest had expired’]; [¶] 3. That [name of plaintiff] was [actually] harmed; and [¶] 4. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.”
The instruction based on CACI No. 1405 in this case was modified to reflect the trial court’s determination that there was no probable cause for the writ of arrest as follows: “Topaz Summerfield claims that she was wrongfully arrested by Edward Galante. To establish this claim, Topaz Summerfield must prove all of the following: [¶] 1. That Edward Galante intentionally caused Topaz Summerfield to be wrongfully arrested; [¶] 2. That Topaz Summerfield was actually harmed; and [¶] 3. That Edward Galante’s conduct was a substantial factor in causing Topaz Summerfield’s harm.”
The evidence at trial was that Galante intentionally caused the authorities to arrest Topaz. Galante instituted a proceeding to issue a writ of arrest directing the authorities to take Topaz into custody. Topaz could have avoided arrest if she took certain actions, but if she did nothing, she would be incarcerated. In fact, the evidence showed that there was no basis to believe Topaz could produce the property on the list or provide $250,000 as security. In his own pleadings in the Zimbabwe court, Galante asserted that he needed to have Topaz arrested because she did not have any assets in Zimbabwe. Galante cannot argue based on this record that he did not intend Topaz would be arrested, when he purposefully obtained a “writ of arrest.” The trial court determined, based on the final judgment of the Zimbabwe court and the record at trial, that the writ of arrest was invalid and should not have been issued. Therefore, the arrest, based on the invalid warrant, was unlawful, and as a matter of law, it must be concluded that Galante intentionally caused the authorities to wrongfully arrest Topaz. The motion for a new trial on the cause of action for false arrest should be granted.
D. False Imprisonment
Topaz and Sable contend that the jury’s findings on the cause of action for false imprisonment are materially inconsistent. Specifically, they contend that if Galante caused Topaz and Sable to be falsely imprisoned and they were harmed, then Galante’s conduct was necessarily a substantial factor in their harm. We conclude the jury’s inconsistent findings require reversal.
“‘Inconsistent verdicts are “‘against the law’”’ and are grounds for a new trial. [Citations.] ‘The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. The rule finds parallel expression in the law relating to court findings: “Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.”’ [Citations.] An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. [Citation.] Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers. [Citations.] Although the court here did not expressly state that the verdict was against law in its order, we may affirm the order on this ground because it was raised in Horton's motion. [Citations.]” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 682.)
The jury’s findings on the cause of action for false imprisonment are internally inconsistent. If Galante’s conduct caused Topaz to be falsely imprisoned and she was harmed, then his conduct was a substantial factor in causing her harm. Galante obtained an arrest warrant directing the deputy sheriff to arrest Topaz. Galante’s actions were the sole reason that the police were at the Summerfield residence to arrest Topaz. The undisputed evidence showed that Topaz was imprisoned pursuant to the writ of arrest. Specifically, Attorney Bull stated that prison officials refused to release her on the night of her arrest because she was being held pursuant to a court order. No outside force broke the chain of causation in this case. The harm sought by the writ of arrest, Topaz’s incarceration, was the harm that occurred, even if the precise course of the events was unexpectable. Galante argued at trial and on appeal that Topaz’s actions in resisting arrest were the cause of her harm and broke the chain of causation. However, the evidence showed that she was held pursuant to the court’s order and not incarcerated solely as a result of her own conduct.
The jury’s findings on the issues of false imprisonment and false arrest also cannot be reconciled. The jury found that Galante caused Topaz and Sable to be falsely imprisoned, but did not cause Topaz to be wrongfully arrested. However, the evidence shows that Galante did not take any action to deprive Topaz and Sable of their freedom of movement other than his conduct related to the writ of arrest.
Similarly, if Galante intentionally caused Sable to be falsely imprisoned and she was harmed, then his conduct was a substantial factor in causing her harm. If Galante intentionally caused Sable to be falsely imprisoned, nothing broke the chain of causation between his conduct and the harm that occurred. Galante argued that it was Topaz’s choice to bring Sable with her, and therefore, Topaz caused Sable’s harm and broke the chain of causation. However, if Galante intended the writ of arrest for Topaz to result in Sable’s imprisonment, the exact manner in which Sable’s incarceration was accomplished, whether through order of the police or her mother’s decision to take her, did not break the chain of causation in this case.
The jury’s findings as to the cause of action for false imprisonment are internally inconsistent as to both Topaz and Sable and the motion for a new trial on the cause of action for false imprisonment should be granted. We note that false arrest and false imprisonment are not separate torts, but rather false arrest is one way of committing false imprisonment. Based on the evidence presented at trial, it does not appear any of Galante’s conduct constituted false imprisonment as to Topaz other than the conduct that would constitute false arrest.
Malicious Prosecution
Topaz and Sable contend the jury’s finding that Galante relied on the advice of his counsel is not supported by substantial evidence. We agree.
Malicious prosecution is initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 757.) To establish a cause of action for the malicious prosecution of a civil proceeding, the plaintiff must prove that the prior action was (1) commenced by or at the direction of the defendant and pursued to a legal termination in the plaintiff’s favor, (2) brought without probable cause, and (3) initiated with malice. (Palmer v. Zaklama, supra, 109 Cal.App.4th at p. 1382.)
False imprisonment and malicious prosecution are mutually inconsistent concepts. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 757.) “The distinction between the two lies in the existence of valid legal authority for the restraint imposed. If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff.’” (Collins v. City and County of San Francisco, supra, 50 Cal.App.3d at pp. 676-677.) If there is valid process, the arrest is not false and the action must be one of malicious prosecution. (Ibid.)
The defendant may establish probable cause by proving that he or she in good faith sought the advice of an attorney before commencing or maintaining the civil proceeding, made a full disclosure to the attorney of all the pertinent facts, was advised by the attorney that there was a good cause of action and honestly acted upon the advice of the attorney. (Palmer v. Zaklama, supra, 109 Cal.App.4th at p. 1383.) “Conversely, if the defendant acted in bad faith or withheld facts from counsel he or she knew or should have known would have defeated the cause of action, probable cause is not established. ‘[C]ounsel’s advice must be sought in good faith [citation] and ‘ . . . not as a mere cloak to protect one against a suit for malicious prosecution.” [Citation.]’ [Citation.] The burden of proving good faith reliance on the advice of counsel falls on the party asserting the defense.” (Id. at pp. 1383-1384.)
“When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.)
Based on the above, it is clear that Galante’s institution of the writ of arrest proceeding cannot serve as the basis for a cause of action for malicious prosecution. There was no probable cause for the writ of arrest to be issued, and therefore, the writ of arrest was invalid and the arrest based on the writ of arrest was unlawful. Topaz and Sable’s recourse for the invalid arrest is a cause of action for false arrest, not malicious prosecution.
On appeal, Galante contends substantial evidence supports the finding that he relied on his attorneys’ advice in initiating the writ of arrest proceeding. This contention is irrelevant, because the institution of the writ of arrest proceeding relates to the cause of action for false arrest, which is not subject to a defense based on good faith reliance on counsel. Galante’s argument is disturbing though, because he emphasizes that Attorney de Bourbon reviewed and approved the urgent chamber application in addition to Attorney Bull. At the May 4, 2005 status conference, Topaz and Sable sought production of Attorney de Bourbon’s communications with Attorney Bull and Galante on the ground that Galante waived the attorney-client privilege by raising advice of counsel as a defense. On that date, Attorney Randolph represented to the trial court that Attorney de Bourbon was merely an advocate and was not involved in the drafting and presentation of the arrest warrant.
Under the unusual circumstances of this case, in that Topaz was released from prison and Galante continued to seek confirmation of the order, a cause of action for malicious prosecution is stated based on Galante’s continuation of the action. We conclude there is no evidence to support the jury’s finding that Galante reasonably relied on Attorney Bull’s advice to continue the action against Topaz. Topaz’s attorney requested that Galante withdraw the action against Topaz and return her airline tickets. Neither Galante nor Attorney Bull testified as to what Attorney Bull advised about maintaining the action after the request for dismissal, returning Topaz’s airline tickets, filing an answering affidavit and arguing the matter in court through to final judgment. Documents from Attorney Bull’s files provide the only evidence of Attorney Bull’s advice to Galante. In May, Attorney Bull asked Galante if he could return the expired airline tickets to Topaz because “it does seem fairly clear that she was genuinely here for holiday purposes and appears not to have involved herself in any way with the issues between yourself and Jacaranda.” The tickets were not returned. On October 8, 2002, Attorney de Bourbon advised against proceeding further with the writ of arrest matter and told Attorney Bull that it would be spiteful to pursue it. He gave Attorney Bull permission to tell Galante his advice. It is apparent from other notes in the file that Attorney Bull expected Galante to lose the case and had recommended settlement.
One note in the file stated that Attorney Bull told Attorney Matinenga that he “wanted the Answering Affidavit filed to reflect the correct actual position” so there could be no suggestion that Attorney Bull acted improperly. This note is ambiguous. It could mean that Attorney Bull affirmatively wanted the affidavit to be filed in order to make the record clear, or it could mean that Attorney Bull wanted the affidavit that was filed to be accurate so that he wouldn’t be exposed to allegations of impropriety. In light of the other documents suggesting that Attorney Bull knew there was no basis to pursue the matter further, no reasonable inference can be drawn from this note that Attorney Bull directed Galante to file an answering affidavit without additional testimony. Certainly, no inference can be drawn that Attorney Bull advised Galante he could continue to pursue the action in good faith because he had a good cause of action against Topaz.
We conclude there is no evidence to support the jury’s finding that Galante continued to prosecute the action against Topaz in reasonable reliance on the advice of his attorney. Because the jury found Galante reasonably relied on the advice of his counsel when he instituted and continued the proceeding against Topaz, they did not consider the other elements of the malicious prosecution cause of action. The judgment in favor of Galante on the cause of action for malicious continuation of a civil proceeding must be reversed.
Sanctions
Topaz and Sable contend the trial court should have striken Galante’s defense based on advice of counsel as a sanction for failing to produce Attorney Bull as a trial witness. Our review of the record reflects multiple occasions when Attorney Randolph unequivocally told the trial court and opposing counsel that Attorney Bull would be a witness. It is clear that both the court and opposing counsel relied upon those representations.
As noted above, Attorney Randolph immediately rested Galante’s case without calling Attorney Bull as a witness when Topaz and Sable rested their case in chief. The sharp practice of misrepresenting that a witness will be called, particularly after a failure of the witness to provide full discovery in connection with his deposition, is serious misconduct worthy of condemnation.
However, it was within the trial court’s discretion to fashion a remedy for Attorney Randolph’s tactics and we cannot say the court abused its discretion by allowing belated presentation of Attorney Bull’s deposition. In any event, the issue has been rendered moot by our determination that there was no evidence to support the jury’s finding that Galante reasonably relied on the advice of counsel.
Pervasive Misconduct
Topaz and Sable contend that Attorney Randolph’s pervasive misconduct in opening and closing argument warrant a new trial. We find that they have waived this contention by failing to timely object.
“‘Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.’ [Citation.] In addition to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation]. This is so because ‘[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.’ [Citation.] The rule is the same for civil and criminal cases. [Citation.] However, ‘the absence of a request for a curative admonition does not forfeit the issue for appeal if “the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.”’ [Citation.]” (Cassim v. Allstate Insurance Co. (2004) 33 Cal.4th 780, 794-795.)
In this case, Topaz and Sable failed to object to Attorney Randolph’s misleading statements in argument that form the basis of the misconduct accusation on appeal. When Attorney Randolph objected during Topaz and Sable’s closing argument, the trial court repeatedly admonished the jury that the statements of the attorneys were not evidence. Had Topaz and Sable objected to Attorney Randolph’s characterization of the law, there is no reason to believe the trial court could not have cured any defect through an appropriate admonition. The charge of misconduct has been waived.
DISPOSITION
The judgment is reversed as to the causes of action for wrongful arrest, false imprisonment, and malicious prosecution. In all other respects, the judgment is affirmed. Appellants Topaz and Sable Summerfield are awarded their costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.