Detrick v. Shimada

Filed 4/28/26
                CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE


 BRIAN S. DETRICK,                        B344461

         Plaintiff and Appellant,         (Los Angeles County
                                          Super. Ct. No. 22STCV33977)
         v.

 KEIKO SHIMADA,

         Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly J. Fujie, Judge. Reversed.
      Bergkvist, Bergkvist & Carter, Paul J. Carter; Detrick Law
Office and Brian S. Detrick for Plaintiff and Appellant.
      Nakahara Law, Larry M. Nakahara and Ashleigh W.
McCurchin for Defendant and Respondent.
                  ____________________________
       Brian S. Detrick, an attorney, appeals from a grant of
summary judgment in favor of his former client, respondent
Keiko Shimada. After Shimada voluntarily dismissed a
malpractice suit against Detrick, Detrick sued for malicious
prosecution. Shimada moved for summary judgment, averring by
declaration she had dismissed the malpractice suit because of the
statute of limitations, a procedural basis for dismissal that
precluded a malicious prosecution action. Detrick objected to the
declaration as incompetent because Shimada could not read or
speak English, and she provided no attestation from an
interpreter or translator certifying the declaration accurately
reflected Shimada’s words.1 The trial court overruled the
objection, concluding the Evidence Code provisions pertaining to
interpreters did not apply to declarations, and granted summary
judgment.
       The trial court erred in overruling Detrick’s objection. The
Evidence Code disqualifies witnesses who cannot be understood
directly or through an interpreter. (Evid. Code, § 701,
subd. (a)(1).) It is undisputed Shimada cannot read, write, or
speak English, and thus her competence as a witness depended
on an interpreter as an intermediary. Shimada provided no
evidence as to the identity or qualifications of her interpreter, nor
any kind of attestation from the interpreter that the declaration
accurately reflected Shimada’s words. Her declaration therefore
did not provide competent evidence of her reasons for dismissing
the malpractice suit. Absent that evidence, she could not meet
her burden to make a prima facie showing she dismissed the

      1Our holding applies equally to interpreters of oral
language and translators of written language, and our use of one
term should not be read to exclude the other.




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malpractice suit because of the statute of limitations, and thus
was not entitled to summary judgment.
     Accordingly, we reverse.

                        BACKGROUND
      On December 12, 2019, Shimada filed a complaint for
malpractice and fraud against Detrick, her former attorney in a
dispute over the estate of her deceased husband. The complaint
alleged Shimada entered into an unfavorable settlement
following a mediation because Detrick withheld critical
information from her and provided “false, wrong and untrue
advice.”
      On September 21, 2020, Detrick’s counsel sent a letter to
Shimada’s counsel stating an intent to file a demurrer on two
grounds: 1) Detrick’s actions were shielded by mediation
confidentiality provisions in the Evidence Code; and 2) Shimada’s
causes of action were untimely under the applicable statute of
limitations. The letter included a “Malicious Prosecution
Warning” (boldface, underscoring, & some capitalization omitted)
asserting Shimada’s complaint had been filed without probable
cause and with malice, and arguing the “true facts” demonstrated
Detrick’s innocence. In particular, the letter asserted Shimada
was aware Detrick was not at the mediation at the time Shimada
signed the unfavorable settlement agreement and he did not
advise her to sign it.
      A month later, on October 23, 2020, Shimada filed a
request for dismissal with prejudice of her malpractice lawsuit,
which the clerk entered.
      On October 20, 2022, Detrick filed a complaint for
malicious prosecution against Shimada.




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       On May 6, 2024, Shimada filed a motion for summary
judgment in the malicious prosecution action. Shimada claimed
“[o]ne of [her] motivations” for dismissing the malpractice suit
was Detrick’s counsel’s letter indicating the statute of limitations
had run. Shimada argued dismissal based on the statute of
limitations was not a termination favorable to Detrick as
required for a malicious prosecution action.
       In support of her motion, Shimada filed a declaration
stating, “The main motivation for my [requesting dismissal] was
concern that the limitations period had expired on one or more of
my causes of action in the Malpractice Complaint, as [Detrick’s
counsel] had advised [in his letter].” Shimada’s counsel filed a
declaration similarly stating, “One of the main motivations for
[Shimada’s] filing her Request for Dismissal . . . was [Detrick’s
counsel’s] advisement that the limitations period had
expired . . . .”
       In opposing the motion for summary judgment, Detrick
objected to Shimada’s declaration as incompetent, citing Evidence
Code sections 403, 702, 711, and 750–753. Detrick proffered a
letter from Shimada’s counsel sent in advance of her deposition in
which counsel “advised that Keiko Shimada only speaks and
reads Japanese” and would require an interpreter. Detrick also
proffered excerpts of Shimada’s deposition in which she
acknowledged her counsel had advised Detrick’s counsel that she
only spoke and read Japanese. Detrick argued Shimada’s
declaration was inadmissible because “[n]o translator’s oath has
been presented to show that Shimada has an understanding of
what she was signing in her Declaration or what it said and that
it has been translated for her.”




                                    4
       Detrick also objected that Shimada’s counsel’s declaration
stating Shimada’s motivation for dismissing the malpractice suit
was hearsay and not based on personal knowledge.
       In addition to his evidentiary objections, Detrick contended
Shimada’s declaration, even if admissible, merely stated that the
statute of limitations was “one” of her motivations, thus
implicitly conceding other motivations existed. Detrick argued
Shimada’s mental state in dismissing her lawsuit was a question
of fact that could not be resolved on summary judgment, and
Shimada had thwarted Detrick’s efforts at discovery as to her
reasons for dismissing the lawsuit.
       In her reply in support of summary judgment Shimada
argued, inter alia, that the Evidence Code provisions relied upon
by Detrick “do not pertain to declarations written in English, but
rather to examination by deposition or in court.” Shimada’s reply
stated, “Shimada’s Declaration was reviewed with her by a
Japanese-speaking employee of her attorney’s office, and she
attested to each statement before signing her declaration.”
Shimada submitted no further declarations in support of her
motion.
       The trial court2 granted Shimada’s motion for summary
judgment, finding “the voluntary dismissal of the Malpractice
Claim was based on technical grounds, i.e. the statute of
limitations, and it does not constitute a favorable termination
because it does not reflect on the substantive merits of the
underlying claim.” The court overruled Detrick’s objection to
Shimada’s declaration: “[Detrick] has submitted no authority for

      2  The judge who ruled on the summary judgment motion
was the same judge who presided over Shimada’s malpractice
suit before it was dismissed.




                                    5
the contention that [an interpreter’s] attestation is required in
the case of a writing as opposed to oral testimony. The Court
finds that no attestation under oath by an interpreter pursuant
to Evid. Code § 751 is required in the case of the Shimada
[declaration].” The court sustained Detrick’s hearsay objection to
Shimada’s counsel’s declaration.
       Detrick moved for a new trial, asserting again, inter alia,
his objection to Shimada’s declaration as incompetent. In
opposition, Shimada’s counsel filed a declaration stating, as had
Shimada’s reply in support of summary judgment, that Shimada
reviewed her declaration with “a Japanese-speaking employee of
her attorney’s office, and she attested to each statement before
signing her declaration.” Detrick objected to counsel’s
declaration, arguing there was “no showing that the unnamed
employee was competent to translate,” and counsel’s statement
that Shimada attested to her declaration was hearsay.
       The trial court denied the motion for a new trial. Detrick
timely appealed.

                          DISCUSSION

A.    Principles of Summary Judgment
       “ ‘Summary judgment is appropriate only “where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.” ’ [Citation.]” (Barenborg v. Sigma
Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76
(Barenborg).) A defendant moving for summary judgment has
“ ‘an initial burden of production to make a prima facie showing
of the nonexistence of any triable issue of material fact.’
[Citation.] . . . ‘Once the defendant meets the foregoing [initial]
burden [of production], “the burden shifts to the plaintiff . . . to




                                    6
show that a triable issue of one or more material facts exists as to
that cause of action . . . .” [Citation.]’ [Citation.]” (Stokes v.
Forty Niners Stadium Management Co., LLC (2024)
107 Cal.App.5th 1199, 1213–1214.)
      “ ‘We review the ruling on a motion for summary judgment
de novo, applying the same standard as the trial court.’
[Citation.]” (Barenborg, supra, 33 Cal.App.5th at p. 76.) “ ‘[T]he
weight of authority holds that an appellate court reviews a
court’s final rulings on evidentiary objections by applying an
abuse of discretion standard. [Citations.]’ [Citation.]” (Michaels
v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 521.)

B.    Malicious Prosecution and Voluntary Dismissal
      “Malicious prosecution is an intentional tort. It offers a
remedy to one subjected to a criminal charge or civil action that
has been maliciously instituted or maintained. [Citation.] To
prevail, the plaintiff must show that a prior action was:
commenced by or at the direction of the defendant; initiated or
maintained both without probable cause and with malice; and
pursued to a legal termination favorable to the plaintiff.”
(Escamilla v. Vannucci (2025) 17 Cal.5th 571, 577.)
      “ ‘[A] voluntary dismissal, even one without prejudice, may
be a favorable termination which will support an action for
malicious prosecution. [Citation.]’ ” (Maleti v. Wickers (2022)
82 Cal.App.5th 181, 205.) “In many instances the dismissal ‘may
be an implicit concession that the dismissing party cannot
maintain the action and may constitute a decision on the merits.’
[Citation.] But ‘ “[i]t is not enough . . . merely to show that the
proceeding was dismissed.” [Citation.] The reasons for the
dismissal of the action must be examined to determine whether




                                    7
the termination reflected on the merits. [Citations.]’ [Citation.]”
(Ibid.)
       A dismissal based on a “ ‘technical or procedural’ ” ground,
which “ ‘reflect[s] on neither innocence of nor responsibility for
the alleged misconduct,’ ” “is not favorable for purposes of a
malicious prosecution claim.” (Casa Herrera, Inc. v. Beydoun
(2004) 32 Cal.4th 336, 342; accord, Alston v. Dawe (2020)
52 Cal.App.5th 706, 722.) An example of a technical or
procedural ground that will not support a malicious prosecution
claim is a dismissal based on the statute of limitations. (Casa
Herrera, at p. 342; Alston, at p. 722.)

C.    Shimada Did Not Proffer Competent Evidence That
      She Dismissed the Malpractice Action Because of the
      Statute of Limitations
      On appeal, Detrick argues 1) the trial court erred in
overruling his objection that Shimada’s declaration was
incompetent; 2) Shimada’s evidence, even if admissible, failed to
establish she dismissed the malpractice suit because of the
statute of limitations; 3) dismissal on the basis of mediation
confidentiality is a termination on the merits; 4) questions of
Shimada’s intent and mental state cannot be resolved on
summary judgment; and 5) the trial court abused its discretion
by not continuing or denying the motion for summary judgment
so Detrick could conduct further discovery. As set forth below, we
agree with Detrick’s first argument that Shimada’s declaration
was inadmissible, and the trial court should have denied
summary judgment on that basis. We do not reach Detrick’s
other arguments.
      A witness is disqualified if he or she is “[i]ncapable of
expressing himself or herself concerning the matter so as to be



                                    8
understood, either directly or through interpretation by one who
can understand him.” (Evid. Code, § 701, subd. (a).)3 Shimada
could not “directly” express herself in her declaration because she
cannot write or speak English. (Evid. Code, § 701, subd. (a).)
Nor could she certify under penalty of perjury that the contents of
her English-language declaration were true and correct, as
required under Code of Civil Procedure section 2015.5, because
she could not read it. To establish her competence as a witness,
therefore, she required “interpretation by one who can
understand” her. (Evid. Code, § 701, subd. (a).)
       Shimada failed to provide evidence of this necessary
intermediary. There were no declarations submitted in support
of the motion for summary judgment explaining how Shimada’s
declaration was generated. The trial court therefore did not
know who, if anyone, served as an interpreter, nor did the trial
court know the interpreter’s qualifications. The trial court
did not know if or how the interpreter worked with Shimada to
ensure the English-language declaration accurately reflected her
words, and that she understood what she was signing. There was
no attestation from the interpreter as to the accuracy of the
translation. Without this information, Shimada’s certification
that her English-language declaration is true and correct was not
competent.
       We recognize that Shimada’s reply below, signed by her
attorney, stated Shimada reviewed her declaration with her
attorney’s Japanese-speaking employee and attested to each
statement before signing. Shimada’s counsel repeated this

      3Detrick did not cite Evidence Code section 701 below, but
we deem his objection on the basis of witness incompetence to
encompass that section.




                                   9
representation in counsel’s declaration in opposition to Detrick’s
motion for a new trial.4 Assuming arguendo the trial court
properly could consider these representations by Shimada’s
counsel, the representations nevertheless failed to fill the
foundational gaps in Shimada’s declaration. Shimada and her
counsel never identified below the “Japanese-speaking employee”
or provided any information about that person’s competence to
translate a document signed under penalty of perjury. Without
information about the interpreter’s qualifications and his or her
attestation that the translation was accurate, we still lack the
necessary link providing a foundation for Shimada’s declaration
establishing that it is trustworthy in light of her admitted
inability to read or speak English.
       Instructive to our holding is People v. Pantoja (2004)
122 Cal.App.4th 1 (Pantoja). In Pantoja, a defendant convicted of
premeditated murder challenged on appeal the admission at trial
of a declaration the victim had included in an application for a
restraining order. (Id. at pp. 3–4.) The trial court admitted the
declaration under Evidence Code section 1370, which provides a
hearsay exception for statements that “narrate, describe, or
explain the infliction or threat of physical injury upon the
declarant.” (Evid. Code, § 1370, subd. (a)(1); Pantoja, at p. 7.)
The exception requires, inter alia, a finding that “[t]he statement
was made under circumstances that would indicate its
trustworthiness.” (Evid. Code, § 1370, subd. (a)(4).)
       The appellate court reversed the defendant’s murder
conviction, concluding the victim’s declaration was not

      4 Shimada did not mention these representations in her
appellate briefing. Her counsel raised them for the first time at
oral argument.




                                   10
trustworthy and its admission was prejudicial. (Pantoja, supra,
122 Cal.App.4th at pp. 11, 15.) Central to this determination was
the fact the victim “spoke almost no English,” and it was
therefore “unclear who actually wrote the declaration.” (See
Pantoja, supra, 122 Cal.App.4th at p. 12.) “If [the victim’s]
statements were translated and transcribed by someone else,
there is no indication in the record of who that was or of that
person’s proficiency as a translator. Nor do we know whether the
statement was read to [the victim] in either language or whether
she gave it any form of meaningful review.” (Ibid.) The
prosecutor had laid no foundation for admission of the
declaration other than to request the trial court take judicial
notice of it because it had been admitted in other proceedings.
(Ibid.) The appellate court observed that there was “a complete
absence of foundational information necessary to determine the
reliability of the statement.” (Id. at p. 11.)
       The Court of Appeal rejected the trial court’s reliance on
Correa v. Superior Court (2002) 27 Cal.4th 444, which held “that
translation of a statement ‘does not add a layer of hearsay when
a translator acts as a “language conduit” so as to cause the
statement to be fairly attributable to the declarant.’ ” (Pantoja,
supra, 122 Cal.App.4th at p. 12, quoting Correa, at p. 455.) The
Court of Appeal observed that Correa listed factors a court should
consider “ ‘ “in determining whether the interpreter’s statements
should be attributed to the [declarant] . . . , such as which party
supplied the interpreter, whether the interpreter had any motive
to mislead or distort, the interpreter’s qualifications and
language skill, and whether actions taken subsequent to the
conversation were consistent with the statements as




                                   11
translated.” ’ [Citation.]” (Pantoja, at p. 12, quoting Correa, at
p. 458.)
      The Court of Appeal wrote, “Here, the trial court considered
none of these factors, and could not have done so because of the
absence of the foundational facts necessary to make such an
evaluation.” (Pantoja, supra, 122 Cal.App.4th at p. 12.) “Thus,
there is no assurance that [the victim’s statements] . . . [were]
accurately translated and transcribed. Indeed, there is no
assurance that these were [the victim’s] words, rather than
something included at the suggestion of another person present
when the declaration was written.” (Ibid.)
      Pantoja’s reasoning is compelling when applied to
Shimada’s declaration. As in Pantoja, here there was an absence
of foundational facts from which the trial court could determine
whether the English-language declaration accurately reflected
Shimada’s words, including the name and qualifications of the
interpreter and the circumstances of the declaration’s creation.
There is not even “assurance that these were [Shimada’s] words,
rather than something included at the suggestion of another
person . . . .” (Pantoja, supra, 122 Cal.App.4th at p. 12.) Again,
the fact Shimada signed the declaration is of no significance
when she was incapable of reading it to verify its accuracy. The
declaration was neither competent nor trustworthy.
      On appeal, Shimada offers no argument to the contrary
apart from citing the trial court’s reasoning for overruling
Detrick’s objection. The trial court concluded the Evidence Code
provisions pertaining to interpreter attestations, specifically




                                  12
Evidence Code5 section 751, do not apply to written declarations.
Section 751 provides, in relevant part, “An interpreter shall take
an oath that he or she will make a true interpretation to the
witness in a language that the witness understands and that he
or she will make a true interpretation of the witness’ answers to
questions to counsel, court, or jury, in the English language, with
his or her best skill and judgment.” (§ 751, subd. (a).) It further
provides, “A translator shall take an oath that he or she will
make a true translation in the English language of any writing
he or she is to decipher or translate.” (Id., subd. (c).)
       The requirements for interpreters and translators are
further set forth in sections 752 and 753. Section 752,
subdivision (a) provides, “When a witness is incapable of
understanding the English language or is incapable of expressing
himself or herself in the English language so as to be understood
directly by counsel, court, and jury, an interpreter whom the
witness can understand and who can understand the witness
shall be sworn to interpret for the witness.” Section 753,
subdivision (a), provides, “When the written characters in a
writing offered in evidence are incapable of being deciphered or
understood directly, a translator who can decipher the characters
or understand the language shall be sworn to decipher or
translate the writing.”
       We disagree with the trial court that these provisions apply
only to oral testimony, when section 751, subdivision (c) and
section 753, subdivision (a) expressly pertain to writings. To the
extent there is ambiguity whether those provisions apply to


      5Further unspecified statutory citations are to the
Evidence Code.




                                   13
declarations submitted with motions, the California Rules of
Court pertaining to law and motion similarly provide, “Exhibits
written in a foreign language must be accompanied by an English
translation, certified under oath by a qualified interpreter.” (Cal.
Rules of Court,6 rule 3.1110(g).) Thus, for example, if Shimada
originally drafted her declaration in Japanese and someone else
translated it to English, the translator would, at minimum, have
to certify the translation under oath.
       Even if arguendo sections 751 through 753 and
rule 3.1110(g) would not apply to the circumstances of this case,
the principles of witness competence discussed ante do. The trial
court abused its discretion by overruling Detrick’s objection and
admitting Shimada’s declaration. (See Kourounian v. California
Dept. of Tax & Fee Administration (2023) 91 Cal.App.5th 1100,
1112 [evidentiary ruling resting on error of law is abuse of
discretion].)
       Without her declaration, Shimada could not meet her
burden to make a prima facie showing that she dismissed her
malpractice complaint on procedural rather than substantive
grounds, the only basis for Shimada’s summary judgment motion.
Apart from the declaration, there was no admitted evidence
establishing Shimada reasons for dismissal. The trial court
rejected as hearsay Shimada’s attorney’s statements regarding
Shimada’s motivations. To the extent Detrick’s counsel’s letter
threatening a demurrer motivated the dismissal, that letter
asserted multiple reasons for dismissal, not just the statute of
limitations. One of those reasons — the malicious prosecution


      6   Unspecified rule citations are to the California Rules of
Court.




                                     14
warning — unquestionably was substantive because it described
facts purportedly establishing Detrick’s lack of culpability.7 The
letter on its own, therefore, could not establish Shimada
dismissed the case merely on procedural grounds. The trial court
thus erred in granting summary judgment.

                          DISPOSITION
      The judgment is reversed. The trial court shall vacate its
order granting Keiko Shimada’s motion for summary judgment
and enter an order denying the motion. Brian Detrick is awarded
his costs on appeal.
      CERTIFIED FOR PUBLICATION.




                                           BENDIX, Acting P. J.


We concur:




             WEINGART, J.




             M. KIM, J.


      7  Detrick argues mediation confidentiality, another basis
for demurrer cited in his counsel’s letter, also was a substantive
basis for dismissal. We do not reach this argument.




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