Moran v. Murtaugh, Miller 1/31/05 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G033102

Case Date: 05/18/2005

Preview:Filed 1/31/05

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

GENE MORAN, Plaintiff and Appellant, v. MURTAUGH, MILLER, MEYER & NELSON, LLP, et al., Defendants and Respondents. G033102 (Super. Ct. No. 03CC07389) OPINION

Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed. Arik Shafir and Evan Blair for Plaintiff and Appellant. Butz, Dunn, DeSantis & Bingham, Kevin V. DeSantis, Steven C. Uribe and Kathleen A. Silhasek for Defendants and Respondents.

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.B.2.

*

Gene Moran contends the trial court erred by requiring him, as a vexatious litigant, to post security before proceeding with claims against his former employer, Murtaugh, Miller, Meyer & Nelson, and several attorneys at the firm, Michael Nelson, Jim Murphy, David Davidson, and an administrator, Marjorie Doyle (collectively Murtaugh). Disagreeing with Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571 (Devereaux), we hold that to require security under Code of Civil Procedure section 391.1,1 the trial court need not conclude as a matter of law that the plaintiff has no reasonable probability of prevailing on any of his or her claims. Nor is the court required to credit the allegations of the plaintiff's complaint as true, but instead may exercise its discretion in weighing the evidence presented at the security motion, without infringing the plaintiff's right to a jury trial. As a matter of first impression, we also conclude that where an employer conducts an investigation on suspicion of employee wrongdoing or misconduct, pursuant to Civil Code section 1786.53 the employer must furnish to the employee copies of any public records uncovered by a background check within a reasonable time after the investigation concludes, rather than within a fixed period. Finally, in light of these holdings, we determine the trial court did not abuse its discretion in concluding it was not reasonably probable Moran would prevail on any of his claims against Murtaugh. We therefore affirm the trial court's dismissal of Moran's suit for failure to post security. I FACTUAL AND PROCEDURAL BACKGROUND Murtaugh hired Moran for an at-will position as a paralegal on April 2, 2003. Because Moran would be privy to client confidences, he was required to sign a All further undesignated statutory references are to this code unless otherwise specified. 2
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confidentiality statement. On April 3, 2003, after a discussion with Moran, firm associate David Davidson conducted a computerized legal database search that turned up three unpublished appellate opinions in which Moran was a party. The three cases, all civil suits, revealed that Moran had suffered several felony convictions, including grand theft, second degree burglary, and theft with a prior conviction. In one of the cases, Moran sued the City of Brea, its police department, a mall owner, a store owner, and several officials and individuals for allegedly violating his civil rights when he was arrested for commercial burglary at Brea Mall. On April 8, 2003, Davidson anonymously placed printouts of the cases on the chairs of two Murtaugh partners, who forwarded them to the firm's managing partners, Michael Nelson and James Murphy. The next day, April 9, 2003, Nelson and Murphy met with Moran to discuss whether he had ever been convicted of a felony and, when he answered affirmatively, they requested and received his immediate resignation. On Saturday, April 19, 2003, Moran sent a letter to Murtaugh by e-mail, fax, and certified mail, citing the Investigative Consumer Reporting Agencies Act (Civ., Code,

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