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Thomson v. Miller9/24/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
BACKGROUND
Plaintiff Taylor L. Thomson ("Thomson") filed this action for malicious prosecution and breach of a confidentiality agreement after defendant Pamela W. Miller ("Miller") voluntarily dismissed, without prejudice, her lawsuit against Thomson for wrongful termination of employment and related claims. Thomson had employed Miller as a professional nanny caring for Thomson's child, and Miller agreed to maintain the confidentiality of private information she learned during her employment with the family. In her complaint, Thomson alleged that six weeks before Miller filed the underlying lawsuit, Miller threatened to disclose confidential information in a lawsuit against Thomson that would embarrass Thomson unless Thomson paid a financial settlement, and that Miller followed through with her threat by filing a groundless lawsuit in violation of the confidentiality agreement.
Miller filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP law. Miller argued that Thomson would not be able to prevail on her claim for malicious prosecution because (1) Miller's voluntary dismissal did not terminate the underlying action favorably to Thomson; (2) there was probable cause for the underlying action; and (3) it was not initiated with malice. Miller presented evidence that she dismissed the underlying action, which was pending in federal court, for technical reasons only, because she wanted to file a new lawsuit in state court adding new defendants whose presence would destroy federal diversity jurisdiction. Miller argued that Thomson would not be able to prevail on the claim of breach of the confidentiality agreement because (1) Thomson could not prove either a breach or any consequential damages; (2) the confidentiality agreement was unenforceable because it violated public policy; and (3) she was entitled to disclose Thomson's confidences to her attorney in order to prosecute her employment claims against Thomson.
Thomson opposed the anti-SLAPP motion. She presented evidence that Miller voluntarily dismissed the underlying action two days after Thomson's lawyer told Miller's lawyer that he intended to file two dispositive motions, a motion to dismiss for failure to state a claim and, ironically, an anti-SLAPP motion. Thomson argued that Miller's explanation for the voluntary dismissal (to file a new state court action that would defeat diversity jurisdiction) was a sham, because the new lawsuit Miller filed made no allegations against the nondiverse defendants and consequently was removed to federal court on the ground that the nondiverse defendants were fraudulently joined. Thus, Thomson argued that Miller's dismissal of the underlying lawsuit was an implicit concession of defeat in the face of impending motions to dismiss or strike the action.
Thomson presented evidence that Miller's lawsuit was brought without probable cause because, among other reasons, less than three months before filing the underlying action, Miller had signed a release of all claims arising from her employment with Thomson in resolution of Canadian litigation, and her employment agreement had a Canadian choice of law provision that defeated her California employment claims. Thomson presented evidence that the lawsuit was brought with malice because, within six weeks of signing the r
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