Filed 7/20/17 Hashemi v. Zarnegar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


HAMID HASHEMI,
Plaintiff and Respondent,
v.
ELHAM ZARNEGAR,
Defendant and Appellant.

A149419

(Contra Costa County
Super. Ct. No. C1600637)


This is another appeal by a defendant who lost an anti-SLAPP motion, here in a case in which she had been sued for malicious prosecution and abuse of process. The trial court denied the motion because plaintiff demonstrated he would prevail on the merits. We agree and we affirm.
BACKGROUND
The General Setting
Appellant Elham Zarnegar met respondent Hamid Hashemi through mutual friends. They thereafter became involved romantically, and also in an extensive home renovation project at Zarnegar’s property. The romantic relationship ended and the home improvement project foundered, leading to the first lawsuit between the parties, Zarnegar’s suit against Hashemi.
The Underlying Lawsuit
In October 2014, represented by attorney Peter Craigie, Zarnegar filed a complaint in Contra Costa County: Zarnegar v. Hashemi, No. C14-01887 (the underlying action). It alleged claims for breach of contract, negligence, and intentional misrepresentation, based on an alleged oral contract by which Hashemi had agreed to act as a general contractor for home renovations.
On October 15, 2014, Hashemi’s attorney sent a letter to Zarnegar’s attorney Craigie informing him that the lawsuit was frivolous and filed by a “jilted ex.” And, Craigie was warned, once Zarnegar’s claims were defeated, a malicious prosecution action would be filed to recover attorney fees and costs incurred in defending against the frivolous lawsuit.
Zarnegar and Craigie continued to pursue the underlying action through trial, which occurred over four days in January, 2016, before the Honorable Judith Craddick. On March 7, 2016 Judge Craddick entered judgment in favor of Hashemi, in connection with which she ruled in pertinent part as follows:
“Plaintiff’s complaint contains three causes of action—Breach of Contract, Negligence and Intentional Misrepresentation. Plaintiff failed to sustain her burden of proof that: (1) She and Defendant entered into a contract to remodel her home, (2) that Defendant agreed to and then negligently undertook either the remodeling of or supervision of others to remodel her home at . . . Alamo, CA and (3) that he made any material misrepresentations which induced her to take any action which she would not have otherwise undertaken. At most, the evidence established that Plaintiff bought a house in Alamo which had been shown to her first by a realtor and then by Defendant. Because of some ‘shenanigans’ with a realtor friend of his, he was able to get a commission credit for her, and she and Defendant subsequently entered into a ‘personal’ relationship. She had determined that the house needed some remodeling work done, he introduced her to individuals who had done work for him in the past, she hired them to do the work and Defendant basically acted as a liaison between her and workers she hired, making no independent decisions and doing none of the work himself. Defendant also helped her obtain building materials and supplies at a cheaper price that she could have gotten otherwise because of his connections with various vendors. Thereafter, she became dissatisfied with both the nature and extent of the remodeling, their relationship ended and a few months later the lawsuit was filed.”
Zarnegar did not appeal from that judgment. The subject lawsuit followed.
The Subject Lawsuit—and the Anti-SLAPP Motion
On April 7, 2016 Hashemi filed a complaint naming two defendants, Zarnegar and Craigie, her attorney. The complaint alleged two causes of action: (1) malicious prosecution with wrongful use of civil proceedings and (2) abuse of process.
On May 12, Zarnegar filed an answer, and on June 13 the motion leading to the appeal here: a special motion to strike under Code of Civil Procedure, section 425.16 (motion or anti-SLAPP motion). The motion was accompanied by a memorandum of points and authorities, two declarations, of Zarnegar and Craigie, and a request for judicial notice requesting notice of seven exhibits from the underlying action. Zarnegar’s declaration devoted seven paragraphs to detailing her version of the claimed relationship between her and Hashemi, as best we understand it rehashing much of her position from the underlying action. The essence of Zarnegar’s position was that Hashemi is “a con artist. He saw a vulnerable single mother that he could exploit and did so.” The motion also asserted that “Hashemi attempts to paint Ms. Zarnegar as a vindictive, scorned women [sic]. Nothing could be further from the truth. It was Ms. Zarnegar who ended their personal relationship in Mid-July 2014 after discovering she had been conned and her home destroyed.”
Two things about the anti-SLAPP motion are noteworthy: (1) It sought to strike “the complaint” and thus contained no discussion, let alone argument, differentiating between the two separate causes of action alleged in the complaint; and (2) it did not argue that either cause of action was legally insufficient.
On June 29 Hashemi filed his opposition to the motion. It included Hashemi’s declaration, a declaration of his attorney, and opposition to the request for judicial notice. It, too, had no argument differentiating one cause of action from the other.
On July 6 Zarnegar filed her reply, including a reply declaration of attorney Craigie and a reply to the opposition to request for judicial notice.
The anti-SLAPP motion came on for hearing on July 13, also before Judge Craddick, who prior to the hearing had entered a tentative ruling denying the motion.
On August 25 Judge Craddick filed her order denying the motion. After some procedural preliminaries, Judge Craddick’s order first held that the lawsuit was within the ambit of the anti-SLAPP statue. Then, after recitation of some boilerplate law, including Hashemi’s burden, Judge Craddick concluded as follows: “Hashemi has met his burden by submitting his declaration, which denies that he ever worked on the remodel or supervised it. Hashemi denies ever entering into a contract with Zarnegar regarding any aspect of the remodel and never took any money from her in connection with it. Hashemi explains that he merely assisted Zarnegar by putting her in touch with workers he had worked with in the past as well as vendors who could help her get direct and reduced prices for materials for the home. Hashemi contends that Zarnegar acted with malice in suing him because she was upset about their break up.”
Finally, following descriptions of Zarnegar’s evidence, Judge Craddick’s order concluded as follows: “While Zarnegar may have had a reasonable belief in the merits of her underlying action, for the purpose of the second prong, she has not established that Hashemi’s claims are legally insufficient or that they are not supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence, submitted by Hashemi is credited. At best, she has created a triable issue as to malice. [¶] Zarnegar’s request for judicial notice of certain trial exhibits entered in her underlying case against Hashemi is denied. Zarnegar does not attach the trial exhibits, and there is no declaration as to whether any of the exhibits identified were admitted into evidence or not. The trial court does not even keep the exhibits; they are returned to the parties. Additionally, even if the exhibits were noticed, they would be hearsay.”
On September 16 Zarnegar filed her notice of appeal.


DISCUSSION
SLAPP Law and the Standard of Review
Subdivision (b)(1) of section 425.16 of the Code of Civil Procedure provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the 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.” Subdivision (e) of section 425.16 elaborates the four types of acts within the ambit of a SLAPP.
A two-step process is used for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the acts underlying the plaintiff’s complaint fit one of the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
Here, the parties did not dispute that Hashemi’s malicious prosecution case came within the first step of the anti-SLAPP analysis. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734–735 [by “its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch”]; Dickens v. Provident Life & Accident Ins. Co. (2004) 117 Cal.App.4th 705, 713; Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422.)
The same is true of abuse of process. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.)
So, the trial court’s analysis addressed only the second step in the SLAPP analysis, as will we. And as to how we decide that step, we set forth the governing law in Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989¬–990:
“We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.)
“That is the setting in which we determine whether plaintiff has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) In the words of other courts, plaintiff needs to show only a case of ‘minimal merit.’ (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier v. Sletten[, supra,] 29 Cal.4th [at p.] 95, fn. 11.)
“As the Supreme Court early on noted, the anti-SLAPP statute operates like a ‘motion for summary judgment in “reverse.” ’ (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.) Or, as that court would later put it, ‘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. [Citation.]’ (Varian Medical Systems, Inc. v. Delfino [(2005)] 35 Cal.4th [180,] 192; accord, Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
“Numerous Courts of Appeal have articulated the test in similar language. (See Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062 [‘a standard “similar to that employed in determining nonsuit, directed verdict or summary judgment motions” ’]; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317 [‘plaintiff’s burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment’]; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 [‘similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment’].)”
As we stated in Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 469, “While plaintiff’s burden may not be ‘high,’ he must demonstrate that his claim is legally sufficient. (Navallier v. Sletten, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient prima facie showing, one made with ‘competent and admissible evidence.’ (Tuchscher Development Enterprisers, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236; see Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)”
In sum, to defeat an anti-SLAPP motion, plaintiff “ ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.’ ” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.)
With those principles in mind, we turn to an analysis of whether Hashemi established a probability that he will prevail, an analysis we make on de novo review. (Grewal v. Jammu, supra, 191 Cal.App.4th at p. 988.)
Introduction to the Analysis
The focus of the parties’ papers below was on the relationship between Zarnegar and Hashemi—how they met and became involved, both romantically and in connection with the home improvement project; what Hashemi did, or did not do, in connection with the project; and other things along those lines. Again, it appears the parties were rehashing much of their positions in the underlying action, with much of the focus on who did what to whom—who was the bad actor. For example, this is how Zarnegar’s brief below sums up her argument on probability of prevailing: “Mr. Hashemi also cannot prove that Ms. Zarnegar maliciously filed and pursued the case. To support this contention, Mr. Hashemi claims that Ms. Zarnegar is a vindictive, scorned women [sic] because he broke up with her. However, it was Ms. Zarnegar who broke up with Mr. Hashemi after he destroyed her home. Mr. [sic] Zarnegar was angry with Mr. Hashemi but anger does not equal malice. If it did, every party who lost a lawsuit could be sued for malicious prosecution. In a further attempt to bolster this argument, Mr. Hashemi claims that Ms. Zarnegar and her attorney are ‘personal friends’ implying that her counsel only filed the lawsuit as a favor. However, the reality is the relationship between Ms. Zarnegar and her attorney is purely professional.”
By contrast, here is Hashemi’s description: “Zarnegar filed this lawsuit because she was mad at Hashemi and she wanted to get back at him. She knew there was no contract, that he was not performing the work himself, and that he was not responsible for the allegations raised in her complaint. She was trying to get even and trying to exhort money from him by means of a lawsuit. Such conduct is malicious and is the very reason why a cause of action for malicious prosecution and abuse of process exists. [¶] There was no evidence, other than the testimony of the Plaintiff, of the alleged existence of an oral argument [sic] between Zarnegar and Hashemi. The actual evidence directly contradicted such claims, as the evidence showed that Zarnegar paid the workers directly and that she never paid Hashemi for any alleged services.”
The effect of this is that the parties lost sight of the real issue in an anti-SLAPP analysis: whether Hashemi had a claim that was legally sufficient and on which he had a reasonable probability of success. As a result of this, neither party in its briefing—not below, not here—sets forth the elements of either of the two causes of action in Hashemi’s complaint. We thus begin with that.
The Law of Malicious Prosecution
“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.)
Here, there is no issue as to element one, favorable termination.
As to element two, lack of probable cause, if there is “ ‘no dispute as to the facts upon which an attorney acted in filing the prior action, the question of whether there was probable cause to institute that action is purely legal.’ [Citation.] ‘The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 222.) So, it is often said that “the existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury. . . . [¶] [It] requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875 (Sheldon Appel).)
On the other hand, when there is a dispute as to the state of the defendant’s knowledge and the existence of probable cause turns on resolution of that dispute, there becomes a fact question that must be resolved before the court can determine the legal question of probable cause. (See Sheldon Appel, supra, 47 Cal.3d at p. 881 [“[T]he jury must determine what facts the defendant knew . . . .”].)
Here, there is necessarily a “dispute” as to the state of Zarnegar’s knowledge before she filed the complaint, especially as she put in no evidence to show what she knew, or did. Nothing.
The final question is whether Hashemi showed a probability of prevailing on the third element of his claim, malice. Malice in connection with malicious prosecution “ ‘relates to the subjective intent or purpose with which the defendant acted . . . .’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) Malice “ ‘may range anywhere from open hostility to indifference’ ”; it is not limited to “ ‘ill will toward plaintiff but exists when the proceedings are [prosecuted] primarily for an improper purpose.’ ” (Ibid.; accord, Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157 (Sierra Club).) As an element of malicious prosecution, malice “reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement.” (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 451–452, italics omitted.)
As Sierra Club elaborated: “Suits with the hallmark of an improper purpose are those in which: ‘ “ . . . (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.” ’ [Citation.]” (Sierra Club, supra, 72 Cal.App.4th at p. 1157.)
Since malice concerns actual mental state, it necessarily presents a question of fact. (Sheldon Appel, supra, 47 Cal.3d at p. 874.) Particularly apt here—a SLAPP case with its reverse-summary-judgment analysis—is this observation by the dissenting justice in Crowley v. Katleman: “malice is such a highly factual issue that it often precludes summary disposition.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 696 (dis. opn. of Arabian, J.).) Indeed it does, especially here, where the record contains evidence to support Hashemi on the issue of malice, including Hashemi’s attorney’s October 15, 2014 letter to Zarnegar’s attorney Craigie stating that the lawsuit was frivolous and filed by a “jilted ex.” And, Craigie was warned, once Zarnegar’s claims were defeated, a malicious prosecution action would be filed to recover attorney fees and costs incurred in defending against the frivolous lawsuit.
And despite this, Zarnegar pursued the underlying action through trial.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Hashemi shall recover his cost on appeal.
 

_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.

























A149419; Hashemi v. Zarnegar