Currier v. Chow

Filed 6/15/07 Currier v. Chow CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff Paul Talcott Currier and defendant Robert Chow decided to go into business together, and formed two corporations for that purpose. Their efforts quickly came to naught, ending in acrimony, the bankruptcy of one of the corporations, and extensive litigation in state and federal courts. This, the fourth of the cases, was filed by Currier and the surviving corporation against Chow (and his wife) and certain attorneys who had been involved in the prior litigations. The Chows and the attorneys filed separate motions to strike Curriers complaint pursuant to the anti-SLAPP statute (Code Civ. Proc.,[1]  425.16). The trial court granted both motions, and Currier and the corporation appeal. Our independent review leads to the same conclusion as the trial courtthat Currier and the corporation have no probability of prevailing on their claims. We thus affirm.

Background

The genesis of this long-running dispute was cogently summarized by San FranciscoSuperior Court Judge Ernest Goldsmith, who presided over one of the earlier litigations, as follows:

Paul Currier met . . . Robert Chow in 1999. Chow was a teacher of telecommunications at several schools in the Bay Area. He was also employed by MCI Worldcom as a telecommunications specialist. Currier had a varied business background and sought to create a wireless communications company. Their mutual interests resulted in their entering into a business relationship to create a telecommunications start-up company. . . . Chow has over 20 years experience in microwave technology and 10 years experience in optical voice and data networks. . . . Chow anticipated working strictly in the technical operations of the company, while . . . Currier would be responsible for the fundraising and routine operations.

Currier and Chow formed two entities, Communications Bridge USA, Inc. (CBUSA), and Communication Bridge Global, Inc. (CBG). As Chow described it, it was only after the two firms were incorporated, with himself and Currier as the initial officers, directors and shareholders, that he learned certain things about Currier that caused him to reconsider the project: These included Curriers prior felony drug conviction that resulted in prison time; allegations of spousal abuse; past due child support payments; bad credit history; history of alcoholism; outstanding liens from the Internal Revenue Service; and a sexual harassment case in federal court. Furthermore, Currier had represented to Chow that he would bring in millions of dollars from investors, yet failed to bring in a single one.

These concerns led to a special meeting of CBUSAs shareholders that was held in June 2001. The shareholders voted to remove Currier from the board of directors and from his position as president. Chow became CEO and Chairman of the Board. Attempts to put CBUSA on its feet were unavailing, and it filed for bankruptcy in August 2001. The chapter 7 liquidation was concluded in December 2003, and Chow lost his investment of approximately $200,000.

Suit No. 1: Chow v. Currier

The first round of litigation commenced on August 1, 2001, when Chow sued Currier and CBG in San Francisco Superior Court. The complaint set forth causes of action for fraud, conversion, breach of contract, breach of fiduciary duty, negligence and defamation. This will hereinafter be referred to as Chow v. Currier.

Currier responded with a cross-complaint against Chow (and his wife), alleging against Chow all the same causes of action that Chow had alleged against him. In August 2002, on motion of the Chows, who were represented by Michael Fish of the firm of Fish & Snell, the trial court struck Curriers cross-complaint. Curriers answer was also stricken.[2]

In November of 2004, Judge Goldsmith conducted a nine-day bench trial on Chows complaint. He then filed a 13-page tentative decision which warrants discussion in some detail.[3]

Judge Goldsmith first established the scope of the controversy: Plaintiff . . . agreed during trial that, save [for] the defamation claim, the crux of each remaining cause of action was solely that [d]efendant failed to specifically disclose that he had served prison time for a felony drug conviction seventeen years ago. In summary, Chows causes of action are based on two premises. First, he would not have co-founded ComBridge and invested money if he had known of Curriers background. Second, that Curriers background, once known, would have to be disclosed to prospective investors which would make it impossible to raise capital, resulting in the loss of his investment. [] Plaintiff premised his defamation claim on a letter distributed to all of the shareholders of ComBridge. According to [p]laintiff, following a shareholders vote that effectively removed defendant Currier from his position as CEO, [d]efendant maliciously distributed this libelous letter in an attempt to tarnish plaintiffs Chows reputation and, accordingly, ruin the company. [] Defendant Currier in response argued that the alleged defamation was privileged inasmuch as he was a corporate officer and had a duty to advise the shareholders of his suspicions and did so pursuant to privilege under Civil Code section 47[, subdivision] (c). Currier also asserted that he made the statements without malice, therefore, the defamation claim was not actionable. In opposing the remaining causes of action, [d]efendant claimed that [p]laintiff failed to establish the requisite elements in each remaining allegation.

With respect to the nondisclosure-based causes of action, Judge Goldsmith noted that Chow had been unable to come forth with legal authority in support of the claim that this was actionable. Judge Goldsmith did not decide whether [Curriers] prior felony conviction is a material fact because [p]laintiff failed to establish by a preponderance of the evidence that the nondisclosure caused damage. . . . The trial testimony showed that ComBridge was having difficulty acquiring investments prior to the disclosure by [d]efendant of his prior felony. In fact, the complaint in this case alleges that defendant Currier couldnt bring in any money prior to the disclosure. The [c]ourt took notice that at the time ComBridge was created, many startup communications companies were unable to attract investment capital . . . . Further, entering into the wireless market is an endeavor fraught with obstacles such as opposition from city utility companies and other logistical problems according to the evidence. It is in fact highly speculative that [p]laintiff would have been able to raise enough money to get ComBridge up and running notwithstanding the disclosure issue.

No showing was made that, but for the late disclosure, ComBridge was on its way to success. Bald assertions by [p]laintiffs attorney that the company was a good idea do not amount to a preponderance of evidence. [] Although plaintiff Chow testified that he would not have invested in the company nor gone into business with defendant Currier had he known of the felony conviction, he did not demand that he get his investment back following the revelation. In fact, Chow continued to invest. The evidence indicated that the overwhelming majority of the money invested by plaintiff Chow was made after knowledge of [d]efendants felony conviction was revealed. . . . [] . . . Indeed, [p]laintiff conceded that without the complaint from the initial investor, he would have continued doing business with [d]efendant. . . . Chows testimony that he would not have joined Currier in this venture does not ring true. The [c]ourt finds that the blame fixed on defendant Curriers nondisclosure by [p]laintiff is a revisionist theory concocted by Chow after ComBridge filed for bankruptcy. The [c]ourt further finds that Chows causes of action based on nondisclosure have no substance whatsoever.

With respect to Chows defamation cause of action, Judge Goldsmith began by noting that it was based entirely on a letter sent by Currier to fellow shareholders in ComBridge on August 25, 2001[,] . . . shortly after Currier was deposed as CEO and attempts were made to cancel his stock ownership. . . . The letter included such statements as: Chow committed criminal fraud on the corporation; Chow defrauded Currier out of 10,000,000 shares of stock; Chow divulged intellectual property owned by ComBridge to his employer WorldCom and, Chow committed mail fraud. Judge Goldsmith concluded that the letter was privileged by Civil Code section 47, subdivision (c) because it was a disclosure to fellow shareholders on matters of common interest [Citation.] The matters referred to in the letter would not only be matters of common interest to shareholders, but would be required disclosures in the discharge of defendant Curriers fiduciary duty as an officer of the company.

Judge Goldsmith further concluded that there was insufficient evidence establishing malice to negate the privilege. Defendant Currier had contacted several law enforcement agencies prior to the distribution of the letter and was making a privileged and good faith effort to warn fellow shareholders of possible impropriety on the part of officers of ComBridge.

Suit No. 2: CBUSA v. Currier

Following his ejection from the CBUSA board, Currier lived in the CBUSA offices. To get him out, CBUSA sued Currier and CBG, which was the second lawsuit, also filed on August 1, 2001. This will hereinafter be referred to as CBUSA v. Currier.

CBUSA was represented by Fish who, together with attorney Thomas Mauriello, obtained an injunction against Currier. In February 2003, the trial court entered a default judgment for $350,000 against Currier and CBG. Four months later, the court granted Curriers motion to vacate the default judgment against him personally; the judgment remained as against CBG.[4] Eventually, as costs mounted and proceedings continued into 2005, and Judge Goldsmith entered his decision in Chow v. Currier, Chow decided to halt CBUSA v. Currier, and the action was voluntarily dismissed. Currier moved for an award of attorney fees as the prevailing party, but the trial court ruled that there was no prevailing party.

Suit No. 3: The Federal Action

Meanwhile, in August 2004, four months before Judge Goldsmith filed his decision in Chow v.Currier, Currier filed a complaint in federal district court against the Chows, Fish, and Mauriello (and others). Although CBUSA was not named as a party, its formation and failure was the backdrop of the complaint, as was Curriers ejection from CBUSA. This will hereinafter be referred to as the federalaction.

In April 2005, the district court granted the Chows motion to dismiss with prejudice, on the ground that all of Curriers claims against them were compulsory counterclaims that should have been asserted in Chow v. Currier. The claims against Fish and Mauriello were also dismissed with prejudice, on the ground that everything they had done on behalf of Chow in the state court proceedings was within the absolute privilege granted by Civil Code  47[, subdivision] (b).

Suit No. 4: The Present Litigation

This, the fourth, and apparently final, round of litigation, began on April 29, 2005, when Currier filed a complaint in San Francisco Superior Court. A second amended complaint was filed on August 12, 2005, which is the pleading to which the anti-SLAPP motions were directed. In the second amended complaint, Currier was joined as a plaintiff by CBG and, as relevant here, the named defendants included the Chows, the law firm of Fish & Snell, its partners Fish and Snell, and Mauriello, against whom it alleged six causes of action, for: (1) malicious prosecution (civil); (2) abuse of process; (3) intentional infliction of emotional distress; (4) malicious prosecution (criminal); (5) civil conspiracy; and (6) unfair business practices in violation of Business and Professions Code section 17200 et seq.

The second amended complaint made it explicit that [t]he actions giving rise to the instant action were Chow v. Currier and CBUSA v. Currier, and much of the complaint was devoted to reciting the general history of those two cases discussed above.[5] In addition to that history, Currier and CBG alleged as follows:

Fish and Mauriello were alleged to be co-participants in the conspiracy to subject Currier to an illegal eviction in CBUSA v. Currier. This led to Currier being falsly arrested on criminal charges, of which Currier was subsequently acquitted. Together with Snell and Fish & Snell, Fish and Mauriello conspired to file a false and fraudulent bankruptcy . . . in order to create a shield to protect them while simultaneously using [the underlying actions as] swords with which to harm [p]laintiffs and CBGs stockholders. Chow and Fish suborned perjury at the trial in Chow v. Currier. Ms. Chow, besides being an investor in the CBUSA with Chow, was also responsible for the allegations [and] prosecution of the underlying actions. Defendants acted without probable cause in bringing [the underlying actions] because they did not honestly and reasonably believe that there were grounds for the action[s], specifically, [d]efendants knew Currier and CBG had not performed any of the wrongful acts of which he [sic] accused Currier and CBG. Defendants had also acted with malice, as well as evil and improper motives, because they knew that the underlying actions had no factual or legal merit.

The Motions to Strike

The first motion to strike was filed by Fish, Snell, their law firm, and Mauriello (the defendant attorneys). The Chows filed their own motion to strike shortly thereafter. Each motion was accompanied by a request for judicial notice of extensive documents from Chow v. Currier, CBUSA v. Currier, and the federal action.

The defendant attorneys argued that Currier and CBG could not establish malice, lack of probable cause, or favorable termination, the elements required for a malicious prosecution cause of action, and that the absolute privilege in Civil Code section 47 bars all of plaintiffs claims in their entirety. The Chows argued the same two points and, in addition, that the cause of action for criminal malicious prosecution was time-barred; the cause of action for civil conspiracy was not viable because there was no other valid basis for liability; and the cause of action for violating Business and Professions Code section 17200 was barred by res judicata.

In their opposition to the motions, Currier and CBG acknowledged that [section] 425.156 [sic] applies to this action, but they argued that they have sufficient evidence to win if the case was allowed to go to a jury. They maintained that they could prove the necessary elements for malicious prosecution, and that there was no legal impediment to proceeding on their other causes of action.

Currier also submitted a declaration in opposition to each of the motions. The declaration Currier filed in opposition to the defendant attorneys motion was considerably longer and more detailed than was the declaration filed in opposition to the Chows motion and, moreover, had a number of exhibits attached to it. However, Currier incorporated by reference the longer declaration into the shorter one.[6]

Curriers declaration stated that he told Chow about his drug conviction, recovering alcoholism, and financial difficulties, and that the sexual harassment suit was brought by Currier, not against him.[7] Currier insisted that the shareholders vote to remove him from the CBUSA board was invalid. Currier stated that the defendant attorneys failed to conduct a proper investigation, that they either knowingly assisted Chow in the destruction of evidence relevant to my legal claims against Chow and vice versa, or they turned a blind eye to Chows spoliation of evidence and commission of other criminal felonies. Currier further declared that Ms. Chow, who ran the CBUSA office, . . . participated with Robert Chow in the commingling of CBUSA private equity funds with the Chows personal money market account, and with him took CBUSA into a false bankruptcy.

On November 23, 2005, after a brief hearing for argument on his tentative ruling, Judge Quidachay granted the defendant attorneys motion to strike, reasoning as follows: The [c]ourt finds that this action arises from litigation activity and is therefore subject to the anti-SLAPP statute . . . . The [c]ourt finds that [p]laintiffs have not established a reasonable probability of prevailing on the Amended Complaint and have failed to present any evidence that the [defendant attorneys] filed the underlying complaints without probable cause or with malice. The remaining causes of action are barred by the litigation privilege set forth in Civil Code Section 47[, subdivision] (b). In addition, there is no outrageous conduct to support the cause of action for intentional infliction of emotional distress. In November 2005, Judge Quidachay filed an order granting the motion to strike,[8] from which Currier and CBG filed a joint notice of appeal.

On January 5, 2006, Judge Quidachay filed a much more detailed order granting the Chows motion to strike. As previously mentioned (see fn. 5, ante), he sustained the objections to virtually the whole of Curriers opposing declaration on the ground that it consists of inadmissible hearsay and irrelevant speculation. He then concluded that Currier and CBG had not established a probability of prevailing on their malicious prosecution cause of action because the evidence showed that the underlying litigation was not commenced with malice or lack of probable cause, or that it terminated in their favor. Judge Quidachay further concluded that the litigation privilege doomed the causes of action for abuse of process, intentional infliction of emotional distress, and violation of Business and Professions Code section 17200; that the cause of action for criminal malicious prosecution was time-barred; that, because there was no prospect of liability on all other causes of action, the purported cause of action for civil conspiracy was not independently actionable; and finally, that the causes of action for emotional distress and violation of Business and Professions Code section 17200 were additionally barred by res judicata.

Currier and CBG filed separate notices of appeal from this order. We ordered the three appeals consolidated.

Discussion

General Principles of the Anti-SLAPP Statute

A SLAPP suita strategic lawsuit against public participationseeks to chill or punish a partys exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Because these meritless lawsuits seek to deplete the defendants energy and drain his or her resources [citation], the Legislature sought  to prevent SLAPPs by ending them early and without great cost to the SLAPP target  [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; accord, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278 (Soukup).)

The anti-SLAPP statute explains the category of claims it is intended to reach and the means of its expedited procedure. A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1).) As used in this section, act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . . ( 425.16, subd. (e).) To effectuate the Legislatures goals, the statute is to be given a broad construction. ( 425.16, subd. (a).)

In ruling on an anti-SLAPP motion, the trial court undertakes a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

With respect to the first step of this process, the court looks first at the essence of the defendants words or conduct for which the plaintiff is trying to attach liability. [T]he statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citations.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The labels the plaintiff assigns to causes of action do not control the analysis: The anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. (Navellier, at p. 92; Martinez v.Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187 [a plaintiff cannot avoid operation of the anti-SLAPP statute . . . through artifices of pleading].)

In deciding the second part of the inquiry, though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; accord, JarrowFormulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. 10.) And while the court must accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendants evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. [Citation.] (Soukup, supra, 39 Cal.4th at p. 269, fn. 3), the defendants evidence prevails as a matter of law if it establishes a defense or negates a necessary element of the plaintiffs claim. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) The court must consider the plaintiffs complaint (Zamos v. Stroud (2004) 32 Cal.4th 958, 965), but the plaintiff cannot rely on the complaints allegations to satisfy the burden of producing admissible evidence in opposition to a defendants special motion to strike. (ComputerXpress, Inc. v.Jackson (2001) 93 Cal.App.4th 993, 1010.)

An appellate court independently reviews the trial courts order granting or denying a special motion to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) This court has explained the scope and nature of such review; it includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [plaintiffs] causes of action arose from acts by [defendant] in furtherance of [defendants] right of petition or free speech in connection with a public issue. [Citations.] Assuming these two conditions are satisfied, we must then independently determine, from our review of the record as a whole, whether [plaintiff] has established a reasonable probability that he would prevail on his claims. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645; accord, Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609-610.)

Judge Quidachay concluded that the first step of the analysis was satisfied because Currier and CBG were suing for malicious prosecution, i.e., for filing and prosecuting the lawsuits. Indeed, Currier admitted as much below, that [section] 425.16 applies to this action, a concession they likewise make here. Such concession is appropriate in light of the clear holding of our Supreme Court in Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pages 734-735, and we take it as conceded that Currier and CBG are suing for acts and statements within the exercise of constitutionally protected rights. (E.g., Navellier v. Sletten, supra, 29 Cal.4th 82, 90; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.)

In light of this concession, we have only to decide step two of the anti-SLAPP inquiry, whether Currier and CBG can demonstrate a probability that they would prevail on the merits of their causes of action against the Chows and the defendant attorneys. This is an issue of law for our independent review (e.g., Zamos v. Stroud, supra, 32 Cal.4th at p. 965; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1299), a review that is, according to well established principles of appellate procedure, confined to the record and matters produced in the trial court. (E.g., People v. Welch (1999) 20 Cal.4th 701, 739; Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  328, pp. 369-370.)[9]

The Motions Were Properly Granted

on the Malicious Prosecution Cause of Action

We begin our independent review with the first malicious prosecution claim alleged by Currier and CBG, styled Malicious Prosecution (Civil). To establish a cause of action for malicious prosecution, the plaintiff must prove the prior action was: (1) brought by the defendant and resulted in a favorable termination for the plaintiff; (2) initiated or continued without probable cause; and (3) initiated with malice. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422.)

Judge Quidachay concluded that the cause of action for civil malicious prosecution against the Chows was defective for several reasons, two of which he identified as follows:

[1] [I]f any reasonable attorney would have thought the claim made in the prior action was tenable, then it is not lacking probable cause, regardless of what the defendants subjective belie[f] or intent may have been. Indeed, probable cause exists as a matter of law unless the underlying claim was totally and completely without merit, to the point of being frivolous. [] [2] In addition, defendants may rely on the advice-of-counsel defense to negate the probable cause element when they prove that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer. When it applies, advice of counsel acts as a complete defense to a malicious prosecution claim.

Curriers malicious prosecution claim fails because Chow and CBUSA relied on advice of counsel, and therefore Currier cannot demonstrate, as a matter of law, that they lacked probable cause in bringing the underlying lawsuit. As the accompanying declarations in support of their motion[s] made clear, Chow conferred with attorney Fish before filing his lawsuit, and disclosed to Fish everything he had discovered regarding Curriers past. By his own testimony, Fish concluded that Chow had viable fraud claims against Currier and CB[G]. Currier also wrote numerous letters that accused Chow of fraud and other crimes, and thus Fish concluded that Chow had a viable defamation claim against Currier.

In his opposition brief, Currier suggested that the declaration of Michael Fish and Robert Chow are mostly inadmissable hearsay and testimony about the contents of documents that violates the Best Evidence Rule. Currier is incorrect. Fish and Chow possess personal knowledge of the facts set forth in their declarations, and Currier failed to present any reason to believe Fish or Chow are mistaken about their own reasons for pursuing the underlying litigation. (Citations omitted.)

This reasoning is unimpeachable.

The standard for defeating a malicious prosecution claim is probable cause, not absolute and confirmed certainty of success. That standard is objective, and involves an issue of law, not one of fact. (E.g., Wilsonv. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824; Sheldon Appel Co.v. Albert & Oliker (1989) 47 Cal.3d 863, 878.) All that is required to establish probable cause is that the underlying claim be arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. (Wilson, at p. 824.)

The declaration of Chow and the two declarations of Fish[10] fully support Judge Quidachays reasoning. They show that Chow and Fish met prior to the filing of the complaints in Chow v.Currier and CBUSA v. Currier, at which Chow conveyed information he had obtained about Curriers background. Some of Chows information was gained first hand, but much came from a background check about Currier that Chow had commissioned, and about which Currier knew and to which he consented. With respect to Curriers duties and his promise to produce investors, Fish corroborated Chows information by speaking with CBUSAs corporate counsel, and by an investigation and review of corporate documents provided by Chow and CBUSAs chief financial officer. According to Fish, Chow also showed me letters Currier had written that accused Chow of committing fraud, and informed me that Currier was accusing him of fraud to his business partners. Only then did Fish recommend that Chow v.Currier and CBUSA v. Currier be initiated. This evidence easily satisfies the arguably tenable standard for probable cause.

But there is even more, at least two additional factors not mentioned in Judge Quidachays analysis. First, the fact that the defendant attorneys persuaded a judge to issue a preliminary injunction in CBUSA v. Currier is objective evidence that the lawsuit appeared to possess merit, for it is axiomatic that such relief will be granted only if the applicant demonstrates a likelihood of prevailing on the merits. (E.g., People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.) The fact that the same judge subsequently denied Curriers motion to vacate the injunction only reinforces this point.

A second factor is negative, that is to say, the absence of an event. Fish noted in one of his declarations that Currier never mounted a legal challenge to his removal from the CBUSA board of directors; to the contrary, after the vote Currier submitted a letter resign[ing] his position as CEO of CBUSA. That removal, and the reasons that led to Chow seeking it, should not at this remove be branded as wholly lacking in objective plausibility.

The two facts on which Currier and CBG fundamentally rely, that Judge Goldsmith ultimately found in Curriers favor in Chow v. Currier and that Chow ultimately abandoned CBUSA v. Currier, are hardly dispositive in establishing lack of probable cause. [E]very case litigated to a conclusion has a losing party, but that does not mean the losing position was not arguably meritorious when it was pled. [Citation.] And . . . successfully defending a lawsuit does not establish that the suit was brought without probable cause. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 743.) In sum, our independent review of the record leads us to the same conclusion as Judge Quidachay: Currier and CBG did not establish a probability of proving at trial that either Chow v.Currier or CBUSA v. Currier were initiated or prosecuted without probable cause.

Likewise apt regarding the Chows motion is the established principle that malicious prosecution will not lie if the defendant, prior to instituting the underlying action, consulted an attorney who recommended or advised that litigation is warranted. (E.g., Dunlap v. New Zealand F. &M. I. Co. (1895) 109 Cal. 365, 368-369; Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383; Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 788; Schubkegel v. Gordino (1943) 56 Cal.App.2d 667, 672-673.) The evidence recounted above was clearly sufficient to satisfy that standard as an objective matter of law, particularly as that evidence was uncontradicted.

Currier and CBG argue in effect that Judge Quidachay erred because he misinterpreted the evidence, that had he viewed the evidence from their perspective, he should have agreed with them that Chow knew he had no probable cause. They further argue that, Either Chow lied to Fish, when describing his dispute with Currier, or Fish and Chow conspired to press meritless claims against [a]ppellants in order to oppress them. For that reason, advice of counsel is no defense here. This approach is nothing more than question-begging. It cannot contradict the Fish and Chow declarations. Only evidence can do that, and Currier and CBG have none. All they cite in support of their argument are the declarations from Currier submitted in opposition to the motion. However, as previously mentioned, Judge Quidachay sustained objections to virtually all of the Currier declarations submitted in opposition to the Chows motiona decision, not incidentally, with which we agree. (See fn. 5, ante.) There was, in short, no evidence opposing Mr. Chows version of what he communicated to Fish.[11]

The conclusion that probable cause was shown for the Chows necessarily demonstrates that it was also shown for the defendant attorneys.

As another reason for granting the special motions to strike, Judge Quidachay concluded that the favorable termination requirement favored the Chows and the defendant attorneys: Both Currier and CB[G] are listed as plaintiffs in the present lawsuit. In Chow v. Currier, however, the only [prevailing] defendant was Currierthe default judgment entered against CB[G] was never vacated, and indeed, remains in force. Because Chowv. Currier was not pursued to a legal termination in CB[G]s favor, CB[G] cannot maintain a malicious prosecution claim based on that lawsuit. Nor can Slyvia [sic: Sylvia] Chow, who was not a plaintiff in the underlying litigation, be sued for malicious prosecution.

Similarly, plaintiffs malicious prosecution claim cannot rely on CBUSA v. CB[G], because that case was not terminated in favor of plaintiffs. In CBUSA v. CB[G], default judgments were entered against Currier and CB[G], but unlike Chow v.Currier, there was no trial or defense verdict, and CB[G]s motion to vacate the default was denied. More importantly, in response to Curriers motion to recover attorneys fees, this court specifically held that in CBUSA v. CB[G], no party was the prevailing party. Therefore, CBUSA v. CB[G] was not terminated in plaintiffs favor and cannot be the basis of a malicious prosecution claim. (Citations omitted.) We also agree with this conclusion.

Clearly, everyone accepts that Chow v. Currier ended with a determination personally favorable to Currier. The less obvious question is the status of CBUSA v. Currier (designated below CBUSA v. CB[G]), which ended when it was voluntarily dismissed by CBUSA. Currier and CBG argue that voluntary dismissal of a case, . . . is a favorable termination for malicious prosecution purposes. This is an overly simplified formulation of a complicated area.

A favorable termination is one that actually reflects the innocence of the malicious prosecution plaintiff. It does not require trial on the merits. It does not cover settlements or resolution of the underlying litigation on technical, jurisdictional, or procedural grounds, or any other conclusion that leaves a residue of doubt about the plaintiffs innocence or complete lack of liability. (E.g., Lacknerv. LaCroix (1979) 25 Cal.3d 747, 750; Wilshire-DohenyAssociates, Ltd. v. Shapiro (2000) 83 Cal.App.4th 1380, 1391.)

Although Judge Goldsmith found Currier free of liability in Chow v. Currier, that same litigation also led to the $350,000 judgment against CBG. In addition, after Curriers cross-complaint in Chow v. Currier was stricken, Ms. Chow was not a party to the underlying lawsuits. It naturally follows that Currier and Chow cannot show a favorable termination as to her.

With respect to CBUSA v. Currier, that case terminated when CBUSA voluntarily dismissed its complaint against Currier and CBG because CBUSA did not wish to incur the expense of further litigation. Dismissal for that reason does not involve the merits, or establish the innocence of Currier and CBG. It is thus not a favorable termination. (Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337, 343-345.)

In light of the foregoing, the Chows and the defendant attorneys showed that two elements of a cause of action for malicious prosecutionlack of probable cause and favorable terminationcould not be made out by CBG. And although Currier could establish a favorable termination for him in Chow v. Currier, he could not in CBUSA v. Currier. Moreover, Currier failed to demonstrate that either suit lacked probable cause. In sum, the anti-SLAPP motions were properly granted as to the first malicious prosecution cause of action.

The Motions Were Properly Granted on the Causes of Action

for Abuse of Process, Intentional Infliction of Emotional Distress,

and Violation of Business and Professions Code Section 17200

Judge Quidachay accurately distilled that [T]hree of Curriers causes of action are based on defendants filing of the underlying lawsuits:

Abuse of Process: Defendants misused the civil litigation process by filing [Chow v. Currier and CBUSA v. CBG] against Currier . . . . Currier states that this case is limited to the specific predicate acts of filing San Francisco Superior Court actions

. . . .

Emotional distress: Currier incorporates the previous allegations and claims that as a result of the actions of [d]efendants, CURRIER suffered depression making him unable to do more than attend recovery meetings and sleep, gastric disturbances and various other maladies.

Section 17200: Defendants alleged abuse of process and malicious prosecution, and the steps taken in furtherance of that conspiracy, are all unfair business practices as defined by California Business and Professions Code [section] 17200 et seq. 

And, he concluded, Because each of these claims arise directly from defendants filing of the underlying lawsuits, they are barred by the absolute litigation privilege of [Civil Code] section 47(2) [sic]. (Citations omitted.) Our review leads to the same conclusion.

Civil Code section 47, subdivision (b) provides in pertinent part: A privileged publication or broadcast is one made: [] (b) In any . . . judicial proceeding . . . . The statute serves a number of purposes, among which are (1) promoting access to the courts by removing the threat of subsequent derivative tort actions; (2) promoting finality in judgments by avoiding an unending roundelay of litigation; and (3) encouraging attorneys to zealously protect their clients interests. (Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214.)

To achieve these purposes, the privilege has a broad scope. In furtherance of the public policy purposes it is designed to serve, the privilege . . . has been given broad application. Although originally enacted with reference to defamation [citation], theprivilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. (Silberg v. Anderson, supra, 50 Cal.3d at pp. 211-212, italics added.)

All that is required for the privilege to apply is that the communication has some relation to judicial proceedings anticipated or already commenced, thus promoting the policy of encouraging virtually unhindered access to the courts; if the communication has the minimal connection to judicial proceedings, it is  absolutely immune from tort liability.  (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057; Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194.) Doubts about the privileges applicability are resolved in favor of its use. (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1430.)

We, too, hold that the privilege applied here. As is evident from the excerpts quoted above, the causes of action alleged by Currier and CBUSA are, at bottom, based on Chow v. Currier and CBUSA v. Currier, the litigation commenced and prosecuted against them by Chow and CBUSA, assisted by the defendant attorneys.[12] The causes of action thus seek to impose liability for conduct that clearly had some relation to those lawsuits. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057; Rubin v. Green, supra, 4 Cal.4th at p. 1193.)

And were there any doubt on thisand there is notour Supreme Court has admonished trial courts to look beyond artful pleading, and focus upon the gravamen of the plaintiffs claims to determine if activity protected by the privilege is involved. (E.g., Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1056, 1058, 1061 [the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature]; Rubin v. Green, supra, 4 Cal.4th at pp. 1196, 1201-1202.) Thus, the court has held that the litigation privilege applies to an attorneys communicative acts of counseling and advising his clients, and cannot be evaded by trying to frame a derivative cause of action for violating the Unfair Competition Law (Bus. & Prof. Code,  17200 et seq.). (Rubin v. Green, supra, 4 Cal.4th at pp. 1196, 1200-1204, quoting Kimmel v. Goland (1990) 51 Cal.3d 202, 208, fn. 6.) Likewise, A plaintiff may thus not plead around an absolute bar to relief simply by recasting the cause of action as one for unfair competition. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182, quoting ManufacturersLife Ins. Co.v. Superior Court (1995) 10 Cal.4th 257, 283.)

Within the context of an anti-SLAPP motion, the Supreme Court has recently held that the litigation privilege extends to communicative acts alleged to constitute abuse of process. (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1058, 1065.) In that decision, and others, the court has also indicated that the privilege bars a cause of action that attempts to recover for emotional distress resulting from litigation. (Id. at p. 1063 [citing Kachig v. Boothe (1971) 22 Cal.App.3d 626]; accord, Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1164, fn. 5 [citing Kachig]; Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 244, fn. 11 [same].)

In their second amended complaint, Currier and CBG incorporated all of the malicious prosecution allegations in their causes of action for abuse of process, infliction of emotional distress, and violation of Business and Professions Code section 17200 et seq. It is thus beyond dispute that these causes of action are likewise based on the prior lawsuits. Once again, the decision to file Chow v. Currier and CBUSA v. Currier are put at issue, as is the conduct of the defendant attorneys who, Currier and CBG alleged in their complaint, handled and prosecuted the cases without honestly and reasonably believ[ing] that there were grounds [supporting them] because they knew Currier and CBG had not performed any . . . wrongful act[] and the case had no factual or legal merit. These causes of action were therefore within the litigation privilege because: (1) all of the conduct involved communicative acts of advising clients and seeking relief in the courts, easily satisfying the some relation standard; and (2) all of the injuries claimed are consequences of the two lawsuits. (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1057-1058; Rubin v. Green, supra, 4 Cal.4th at pp. 1193-1194, 1196.) Where the privilege applies, it is absolute. (Flatley v. Mauro (2006) 39 Cal.4th at p. 322; Rusheen, at pp. 1062-1063.)

The only exception is for conduct that constitutes malicious prosecution. (E.g., Rubin v.Green, supra, 4 Cal.4th at pp. 1193-1194.) It follows that litigation-related action which falls short of constituting the basis for a malicious prosecution cause of action cannot support a claim for intentional infliction of emotional distress. (See Bidna v. Rosen (1993) 19 Cal.App.4th 27, 39.) It has already been established that Currier has no actionable claim for malicious prosecution. He thus cannot repackage the same conduct into a cause of action for emotional distress, including for his claimed expulsion from the board of CBUSA. (See Heller v. Pillsbury, Madison & Sutro (1996) 50 Cal.App.4th 1367, 1388-1389 [no intentional emotional distress claim for attorney expelled from law partnership].)

Two of the claims, those for abuse of process and intentional infliction of emotional distress, fail for an additional reason: they are inadequate as a matter of law. Specifically the cause of action styled abuse of process alleges that Chow misused the civil litigation process by filing [c]ase No. 323394 [Chow v. Currier] and [c]ase No. 323391 [CBUSA v. CBG] against Currier. Currier admits that [t]his case is limited to the specific predicate acts of filing San Francisco Superior Court actions. . . . This allegation is inadequate.

The tort of abuse of process has two fundamental elements: (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 466.) As our colleagues in Division Three summarized the law in Loomis v. Murphy (1990) 217 Cal.App.3d 589, 595, it is well settled that, in contrast to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuiteven for an improper purposeis not a proper basis for an abuse of process action. [Citations.] (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1169.) An abuse of process cause of action is not stated where the complaint alleges simply that the prior action was instituted improperly. There must be some substantial use or misuse of the judicial process beyond the mere filing of the prior action. (Drasin v. Jacoby & Meyers (1984) 150 Cal.App.3d 481, 485; see also Seidner v. 1551 Greenfield Owners Assn. (1980) 108 Cal.App.3d 895, 903-904.) Witkin sums up the tort this way: Some definite act or threat that is not authorized by the process, or that is aimed at some collateral objective not legitimate in the use of the process, is required. The defendant is not liable for abuse of process where he or she has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. (5 Witkin, Summary Cal. Law (10th ed. 2005) Torts,  522, p. 773, and numerous cases there collected.) The record here is bereft of any contention, let alone any evidence, of either of the requisite elements.

A cause of action for intentional infliction of emotional distress has four elements: (1) outrageous conduct by the defendant; (2) the defendants intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants outrageous conduct. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259, quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

To support a claim for emotional distress the conduct must be outrageous, that is, beyond all bounds of decency (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593); it must be so extreme as to be outside the bounds of what is tolerated by a civilized society. (E.g., Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Litigation-related actions or communications that are privileged do not clear this high hurdle. (Rusheenv. Cohen, supra, 37 Cal.4th at p. 1063; Silberg v. Anderson, supra, 50 Cal.3d 205, 215; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1124-1125.) Certainly, being involved in litigation is distressing, but it is still within what civilized society will tolerate, given that society is willing to immunize it from liability.

The Motions Were Properly Granted on the Causes of Action

for Criminal Malicious Prosecution and Civil Conspiracy

Currier and CBG purported to state a second cause of action for malicious prosecution (criminal), based solely on Curriers arrest and trial on criminal charges.[13] Although both Currier and CBG are designated as plaintiffs, it is obvious that this cause of action would be personal to Currier.

There is no independent cause of action for maliciously prosecuting a criminal action, but it is recognized that instigating a criminal proceeding can lead to civil liability for malicious prosecution if the plaintiff can show the criminal charges lacked probable cause, were motivated by malice, and were favorably terminated. (See 5 Witkin, Summary of Cal. Law, supra, Torts,  475, pp. 701-702.) Currier alleged that he was found not guilty of all charges in People of the State of California v. Paul Talcott Currier on or about June 10, 2002.

Judge Quidachay concluded that the action was time-barred because it had not commenced within one year of Curriers acquittal. We agree with the result he reached, but do so by different reasoning. The authority quoted by Judge Quidachay does indeed hold that a malicious prosecution is subject to a one-year statute of limitations. (White v. Lieberman (2002) 103 Cal.App.4th 210, 216.) What he could not anticipate was that in 2006, a Court of Appeal would determine that a statutory change had extended the period to two years. (Stavropoulos v.Superior Court (2006) 141 Cal.App.4th 190, 193-197.) That same decision cited the principle that the time for filing a malicious prosecution claim begins to run at entry of judgment in the underlying action. (Id. at p. 197.) In Curriers case, the entry of judgment would be the date he was acquitted, June 10, 2002. Even with a two-year period, the statute of limitations expired in June 2004, considerably before the within action was filed on April 29, 2005

Civil conspiracy is not a true cause of action, but merely a legal mechanism for spreading liability if an independent wrong can be shown. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) The preceding discussion demonstrates that Currier and CBG do not have a surviving cause of action that amounts to an independent wrong. The cause of action for civil conspiracy fails accordingly.

The Claim for Sanctions Has No Merit

Our final word concerns a pending motion for sanctions filed by Currier and CBG against the defendant attorneys and the counsel representing them on these appeals. The basis for the motion is that in their brief the defendant attorneys intentionally misrepresented the status and knowledge of a person whose deposition was submitted in opposition to the motions to strike. Present counsel for the defendant attorneys is also assailed for having failed to cite to the record to substantiate her completely false statements about the witness.

Having reviewed the record, we have no hesitation in concluding that the point of the sanctions motion, even if correct (which is by no means demonstrated), is de minimis in consequence. Frankly, we find the motion audacious, as Curriers and CBGs opening brief, signed by an attorney no less, itself violated th