INTHE CIRCUIT COURT OF MONTGOMERY COUNTY AARON WALKER, Plaintiff, v. No 398855-V BRETT KIMBERLIN and TETYANA KIMBERLIN, Defendants. MOTION TO RECONSIDER DENIAL OF MOTION FOR SUMMARY JUDGMENT BEFORE A NEW JUDGE Defendants Brett and Tetyana Kimberlin move this Court to reconsider its May 5, 2016 denial of their Motion for Summary Judgment, and to hold a hearing thereon before a Judge other than Judge Mason. ‘This motion is based on (1) the Court’s erroneous ruling that they are not immune from civil suit under the “litigation privilege;” (2) the failure of the Court to hold a fact based hearing on the elements of the tort based on questions of law, and (3) the violation of victims rights under Maryland statutes and Article 47 of the Maryland Declaration of Rights, which requires a “victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process.” ‘The Litigation Privilege Applies To Malicious Prosecution In Victims Rights Cases At the May 5t hearing, the Court made the observation that if the litigation privilege applies to malicious prosecution, then the tort of malicious prosecution would be meaningless because the Plaintiff would be left without recourse. Numerous courts, however, have found that the litigation privilege providesimmunity from malicious prosecution claims. Indeed, the New Jersey Supreme Court was faced with this very issue when an attorney sued a complainant for malicious prosecution for filing a complaint against him. Matter of Hearing on Immunity for Ethics Complainants, 477 A.2d. 339 (NJ 1984). The Court found litigation privilege. In California, the court in in Bidna v. Rosen, 19 Cal. App. 4th 27, 23 Cal, Rptr.2d 251 (Cal. 4th Dist. 1993) barred any malicious prosecution actions in family law matters. In Florida, the Court in Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), specifically found that the litigation privilege includes suits for malicious prosecution. It rejected the argument that the litigation privilege would eliminate the tort of malicious prosecution, observing that by definition, application of the absolute litigation privilege was limited to conduct that occurred during and related to judicial proceedings. Accordingly, the Florida court explained: a malicious prosecution cause of action premised upon acts committed outside the judicial process would not necessarily be barred by the privilege: We are unpersuaded by the argument that, unlike other torts, the application of the litigation privilege to the tort of malicious prosecution would effectively eliminate malicious prosecution as a cause of action altogether. In the instant case, the acts complained of were the actual filing of the complaint and the brief prosecution of the [underlying] case... These acts indisputably occurred during and were related :o the judicial proceedings, and are therefore protected by the litigation privilege. Acts committed prior to the filing of the complaint may not, in some cases, enjoy the broad protection of the privilege. [Id. at 71]. In the instant case, Defendants’ conduct occurred “during and were related to the judicial proceedings” of petitioning for redress with the Commissioner to stop Plaintiff from stalking and harassing them and their daughter. Moreover, Plaintiff was not left without recourse if he had evidence that Defendants lied since he could have asked the State’s Attorney to prosecute them for perjury. But Plaintiff did notdo so because he knows that the State's Attorney is well aware of his predatory conduct toward Defendants. Clearly, Defendants were immune under the litigation privilege, Plaintiff's Lawsuit Has A Chilling Effect On Victims And Violates The Victims’ Rights Statutes Under Sections 3-803 and 3-805 Defendants had a right under Maryland Statutes 3-803 and 3-805 to file criminal complaints against Plaintiff for stalking and harassing them and their daughter. If they, or the thousands of other Maryland cesidents who file complaints under the statutes could be sued for malicious prosecution every time a complaint was nolle prossed, then victims’ rights under the statutes would be chilled. Public policy in Maryland is that the rights of the victims to seek redress and protection from the courts trumps the rights of abusers. Thatis why Courts have broad power under Peace and Protective Orders statutes based on Sections 3-803 and 805 conduct to deprive an abuser of many rights without affording them a jury trial. ‘The Maryland Court of Appeals has long recognized that "[sJuits for malicious prosecution are viewed with disfavor in law and are to be carefully guarded against." North Pt. Constr. Co. v. Sagner, 185 Md. 200, 206, 44 A.2d 441, 444 (1945). Public policy requires that citizens be free to resort to the courts to resolve grievances without fear that their opponent will retaliate with a malicious use of process lawsuit against them. See Owens v. Graetzel, 149 Md. 689, 694-95, 132 A. 265, 267 (1926). In the instant case, this Court has placed the rights of Plaintiff, a victimizer and abuser who has stalked and harassed Defendants and their daughter, over the rights of the victim Defendants. This Court has turned the entire legal system that protectsvictims upside down by allowing an abuser to continue his abuse by filing suit against Defendants to retaliate against them for seeking redress under the law. Defendants are victims, and under Article 47 of the Maryland Declaration of Rights, they are entitled to be “treated with dignity, respect and sensitivity” during any criminal justice process. However, this Court has not treated Defendants with “dignity, respect or sensitivity” even though the criminal process against Plaintiff continued long after Plaintiff filed his suit Instead, this Court has bent over backwards to protect and enable the abuser in the same way as does the judge who blames the rape victim for wearing a tank top. The ruling of the Court in favor of Plaintiff constitutes victim blaming—"Plaintiff says you lied about the harassment so he has a right to sue you for malicious prosecution.” Judges all over the country have been ousted and dis: ined recently for similar victim blaming in cases involving rape and sexual assault. Defendants have filed a complaint with the Maryland Commission on Judicial Disabilities raising the same complaints against this Court that were made against Judge Baugh. ie., that the Court’s ruling does not promote public confidence in the independence, integrity and impartiality of the judiciary; that the court's rulings have the appearance of impropriety; that the Court has not performed its du s fairly and impartially; and that the Court has, by words and conduct, manifested bias and prejudice, and harassed Defendants based on prejudice against victims. The Court must reconsider its denial of summary judgment and give precedence to the rights of victims to seek redress without fear of retaliation.The Court Failed To Make A Fact Based Determination On The Elements Of The Tort On a Motion for Summary Judgment, the court is required to determine if the elements of the tort are present. This Court erred in finding that those elements were present or created a material dispute. . The necessary elements of a case for malicious prosecution of a criminal charge are well established. There must be: (a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) malice, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice. Brewer v. Mele, 298 A2d 156 (Md. 1972) Maryland Law States That A Nolle Pros Does Not Mean A Termination In Favor Of Plaintiff and Does Not Necessarily Prove An Absence Of Probable Cause As the court stated in Hines v. French, 852 A.2d 1047 (Md. 2004), “a nol pros is not a verdict in favor of appellant. The trial court incorrectly applied the principles cited in Allen because that case does not address whether a nol pros is a termination of proceedings in favor of the plaintiff but, instead, concerns whether a nol pros may act as evidence that a defendant lacked probable cause to institute the prosecution.” In Allen v, Bethlehem Steel Corp, 547 A.2d 1105 (Md. 1988), the court was faced with a malicious prosecution case. It stated: “When a nolle pros is entered by the State, the court must look at the circumstances surrounding the State's decision so as to determine whether there was an absence of probable cause. Exxon v. Kelly, 281 Md. 689, 695, 381 A.2d 1146 (197% *hipp v. Autoville, 23 Md. App. 585, 575, 328 A.2d 349 (1974); Norvell, 212 Md. at 21, 128 A.2d 591.” The Court went on toreverse finding that the trial court, as did the Court in the instant case, failed to make a factual inquiry into the reasons fo: the entering of the nolle pros: “Determining the State's reasons for entering the nolle prosequi in the case sub Judice requires a factual inquiry. Since no factual inquiry was made, much less decided, we reverse and remand to the circuit court for trial.” In the instant case, the nolle pros by the state was not a termination in favor of Plai Instead, it was simply a dismissel without prejudice. In fact, following the nolle pros, the States Attorney contacted Defendants and asked them to provide additional information to support their complaint regarding Plaintiffs harassment of their daughter. In short, this element of the malicious prosecution claim has not been met and this Court did not make any factual inquiry. Therefore, summary judgment must be reconsidered and granted. Because Plaintiff Was Never Arrested, There Was No Malicious Prosecution The Court stated at the hearing on May S* that the mere fact that Defendants filed the complaints against Plaintiff was enough to allow the malicious prosecution complaint. However, Defendants argued :hat since Plaintiff was never arrested, never received a warrant, and never had to appear in court, there was no prosecution. Maryland has steadfastly adhered to the so-called ‘English’ rule that no action will li for the malicious prosecution of a civil suit when there has been no arrest of the person, no seizure of the property of the defendant, and no special injury sustained which would not ordinarily result in all suits prosecuted for like causes of action.” One Thousand Fleet v. Guerriero, 346 Md. 29, 44 (quoting Sagner, 185 Md. at 207, 44 A.2d 441); Dostert v. Crowley, 394 F.2d 178 (4% Cir. 1968). Because Plaintiff was never arrested, this Court must grant summary judgment,The Court Was Required To Determine Whether Probably Cause Existed As for want of probable cause, the Court of Appeals has held that probable cause "means ‘a reasonable ground for belief in the existence of such state of facts as would warrant institution of the suit or proceeding complained of.” Id. at 37, Whether the evidence in any given case is legally sufficient to show want of probable cause is a question of law. Sagner, 185 Md, at 207, 44 A.2d 441; Campbell v. Lake Howell, 852 A. 2d 1029 (Md: 2004). In the instant case, Plaintiff argues that there was no probable cause for the Commissioner to find that he stalked or harassed Defendants or their daughter. Defendants have argued that there is five years of evidence that Plaintiff has engaged in a course of conduct to harass, stalk and use the Internet to torment Defendants and their daughter and cause them serious emotional distress. Therefore, this Court was required to determine whether, as a question of law, the evidence presented in their complaints constituted probable cause for the Commissioner to act. Instead, this Court simply stated that the evidentiary disputes were for the jury to decide. This constitutes error and must be reconsidered. Defendants Are Entitled To A New Hearing Before A New Judge Defendants have asked for the assignment of a new judge in this case for various reasons, include bias and prejudice. The appearance of judicial impartiality has been questioned in this matter by the Court’s conduct and rulings. Clearly, Defendants are entitled to a hearing on this motion before a new judge.Conclusion Wherefore, for all the above reasons, Defendants move this Court to reconsider its denial of summary judgment and to hold a hearing before a judge other that Judge Mason, mii tt Kimberlin Tetyana Kinfberli of Certificate of Service I certify that I mailed a copy of this motion to Plaintiff this 9" day of May, 2016 by certified mail. Brese Gmbertin rAL ( CY