Martina A. Silas represented Ross Gunnell in a personal injury action filed in 1995 resulting in a jury award that was later overturned on the grounds that worker’s compensation was the exclusive remedy. Gunnell and others were unskilled laborers who worked for four and one-half months on a cleaning project at Metrocolor Laboratories, Inc. (Metrocolor), which owned a facility to develop and process movie and television film.Metrocolor provided no protective clothing other than rubber gloves, which rapidly disintegrated. Gunnell was never told what the solution was, but later learned it was Absorb, a solvent/degreaser, that contained a hazardous substance known to cause brain and nervous system damage and that was readily absorbed through the skin. Gunnell suffered from anxiety and panic attacks, loss of cognitive function, and respiratory problems, and was disabled from work as a laborer.

The jury returned a verdict of $1,650,000 in compensatory damages and $5 million in punitive damages. Pursuant to Metrocolor’s motion for judgment notwithstanding the verdict based on the holding of Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, the court found that pursuant to Labor Code section 3602, subdivision (a), worker’s compensation provided Gunnell’s exclusive remedy. The Court of Appeal in Gunnell v. Metrocolor Labs, Inc., 92 Cal.App.4th at page 714 affirmed the trial court

Gunnell then filed a malpractice action against Silas, asserting she failed to assert a meritorious defense to worker’s compensation exclusivity, and had misappropriated funds. Gunnell was represented by James Ellis Arden in that action. Silas’s motion for summary judgment was granted in Gunnell’s malpractice action.

In 2008, Silas filed her complaint for malicious prosecution and abuse of process against Arden, his law firm (Scott, Arden and Salter), and several other attorneys involved in the malpractice action. Silas asserted that (1) Arden continued to prosecute the claim for misappropriation of settlement funds throughout three versions of the complaint, even when confronted with checks Gunnell endorsed and a notarized settlement agreement; and (2) argued that she should have asserted the section 3602 subdivision (b)(2) exception although Gunnell’s own testimony about his chapped hands undermined a key component of the theory, namely that he was unaware of the cause of his physical ailments.The jury found for Silas and awarded $145,756 in legal fees and costs, $30,000 in noneconomic damages, and $125,000 in punitive damages. Arden appealed.

The Court of Appeal in the unpublished opinion of Martina A. Silas v James Ellis Ardien affirmed the trial court. Arden argued, among other issues that the record was devoid of evidence that he lacked probable cause or harbored malice towards Silas in bringing the malpractice action against her. To establish a cause of action for malicious prosecution, a plaintiff must prove that the underlying action was (1) terminated in the plaintiff’s favor, (2) prosecuted without probable cause, and (3) initiated with malice. A claim for malicious prosecution need not be addressed to an entire lawsuit; it may, as in this case, be based upon only some of the causes of action alleged in the underlying lawsuit. A litigant will lack probable cause for his action if he relies upon facts which he has no reasonable cause to believe to be true, or seeks recovery upon a legal theory which is untenable under the facts known to him. Arden continued to prosecute the misappropriation claim by including it in Gunnell’s amended complaints, which were filed even after confronted with Gunnell’s signatures on all relevant documents.