Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1986)

MEMORANDUM^* 

Walter Greene, Jr. appeals the district court's grant of summary judgment on his malicious prosecution and section 1981 claims.¹  We affirm.

I Malicious Prosecution

In order to establish a cause of action for malicious prosecution, a plaintiff must establish that the underlying action (1) was terminated in the plaintiff's favor, (2) was brought without probable cause, and (3) was initiated with malice. Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 765 P.2d 498, 501, 254 Cal. Rptr. 336 (1989). Only the latter two requirements are disputed here.

In evaluating whether a plaintiff had probable cause to bring an action, the determinative question under California law is "whether any reasonable attorney would have thought the claim tenable." Id., 765 P.2d at 511. Once a trial court has determined that the underlying action was objectively reasonable, then "the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail." Id. at 506.

Appellant contends that a reasonable attorney in appellees' position would have found the abuse of process suit barred by 42 U.S.C. § 2000e-3(a) (1982).²  An examination of the case law of the time,³  however, and the authority which appellant himself describes as "the leading treatise" on the subject reveals support for appellees' position.

Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007 n. 22 (5th Cir. 1969) and Avigliano v. Sumitomo Shoji Am., Inc., 473 F. Supp. 506, 516 (S.D.N.Y. 1979), aff'd on other grounds, 638 F.2d 552 (2d Cir. 1981), vacated & remanded on other grounds, 457 U.S. 176 (1982) both indicate that under some circumstances an employer may not be barred from bringing an action in tort against an employee even though the employee has engaged in activity protected by Title VII. The treatise cited by appellant notes a divergence of opinion on this point and cites cases holding on both sides of the issue. B. Schlei & P. Grossman, Employment Discrimination Law 541 n. 31 (2d ed.1983)).⁴  The treatise also notes that, in order to establish a violation of Sec. 2000e-3(a), an employee must show a causal connection between the employee's participation in a protected activity and the employer's adverse action. Id. at 534. Standards of causation at the time ranged from a requirement that the employee show retaliation played any part in the action to proof that nonretaliatory motives would not have caused the adverse action absent the protected activity. Id. at 560-61. Appellees could well have believed that, since their suit was grounded on several significant bases other than appellant's protected activity,⁵  appellant would be unable to show the required causal link.

While case law contrary to appellees' viewpoint did exist at the time they filed their abuse of process suit, most was factually distinguishable and none was binding on the district court.⁶  Since appellees could have reasonably believed that their position was legally tenable, they have met the generous probable cause standard established by Sheldon Appel.

II Appellant's Section 1981 Claim

Appellant's section 1981 claim was dismissed on the merits and with prejudice by the district court when Greene I and Greene II⁷  were consolidated and brought to trial in 1985. That decision was affirmed by the Ninth Circuit in an unpublished opinion. Armco v. Greene, No. 85-6018 (9th Cir. Oct. 24, 1986).

Appellant claims that his claim should not be barred by res judicata because the prior judgments resulted from a fraud upon the court. The asserted fraud consisted of alleged perjury by appellees' attorney in a state bar proceeding and the judge's alleged "cover up" of that perjury. The "cover up" allegedly consisted of the judge's adoption of parts of findings of fact and conclusions of law drafted by appellees. The district court specifically found that there was no credible evidence of perjury. In rejecting appellant's argument that the district court's findings should be given little deference, this court stated that "even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Armco v. Greene, No. 85-6018, at 3 (9th Cir. Oct. 24, 1986 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985)). Since the purported perjury and subsequent judicial cover up constitute the sole basis for appellant's charge of fraud upon the court, his section 1981 claim is barred by res judicata.

III Sanctions

As the result of this appeal was not "obvious" and appellant's arguments were not "wholly without merit," see McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981), we conclude that appellees' request for sanctions must be denied.

Since appellant has failed to demonstrate that appellees initiated their abuse of process suit without probable cause, and since appellant's section 1981 claim is barred by res judicata, the district court's judgment is

AFFIRMED.