Tuesday, April 03, 2007, 12:57 PM

COA Upholds Employee's Malicious Prosecution Victory, Notes Rules Violations

In Nguyen v. Burgerbusters, Inc. d/b/a Taco Bell, the COA upheld a jury verdict finding an employer liable to the tune of $200,000 for malicious prosecution involving a former employee.

Burgerbusters, Nguyen's employer, received an anonymous tip that Nguyen's wife was submitting fraudulently inflated time sheets. Burgerbusters investigated the tip, and, based on the investigation, fired Nguyen and told the police that Nguyen had caused Burgerbusters to pay $25,000 to a merely nominal employee. In turn, a DA got an indictment charging Nguyen of embezzlement. But the DA ultimately determined insufficient evidence existed and dismissed the embezzlement charge.

Nguyen then brought a malicious prosecution action, which required that Nguyen show 1) that the defendant initiated an earlier proceeding; 2) malice in initiating such proceeding; 3) lack of probable cause for initiating the earlier proceeding; and 4) termination of the earlier proceeding in the now plaintiff's favor. The trial court let Nguyen's case go to the jury, which found for Nguyen and awarded him $200,000. The trial court let the verdict stand and refused to grant a new trial.

The COA upheld the trial court, holding, among other things, that Burgerbusters' call to the police about its embezzlement suspicion was enough to meet the first element, as "without the initial contact from defendant, it is unlikely there would have been a criminal prosecution of plaintiff." Striking is the seeming banality of this case's facts, and it should give employers pause.

The COA also refused to address a couple of Burgerbusters' arguments, in one instance because of the lack of authority in support of an argument, in another instance, because an assignment of error went to the trial court's denial of directed verdict and JNOV motions on a certain ground (warrant/indictment not introduced into evidence) while the corresponding argument in the brief went to the trial court's failure to dismiss the case on that very same ground.


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