Bucur v. Vithlani CA4/2 ( 2016 )

Filed 2/3/16 Bucur v. Vithlani CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
VIOREL BUCUR,
Plaintiff and Appellant, E063738
v. (Super.Ct.No. RIC1500708)
DILIP VITHLANI, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge.
Affirmed.
Viorel Bucur, in pro. per., for Plaintiff and Appellant.
Law Offices of Dilip Vithlani, Dilip Vithlani; Law Offices of Ricardo Figueroa
and Ricardo A. Figueroa for Defendant and Respondent.
1
I
INTRODUCTION1
Plaintiff and appellant Viorel Bucur appeals from the trial court’s order granting
defendant Dilip Vithlani’s anti-SLAPP motion to strike the tenth cause of action for
malicious prosecution. (Code Civ. Proc., §§ 425.16, subd. (i); 904.1, subd. (a)(13).)2
The key issue is Bucur’s claim that Vithlani, a lawyer, never represented Bucur and
therefore could not sue Bucur to recover attorney’s fees in a cross-complaint in another
case, RIC1305031. The record shows, however, that Bucur, doing business as Liguari
Products, Inc. (Liguari), signed a fee agreement with Vithlani on April 29, 2011. Bucur
subsequently executed three attorney substitutions on January 9, 2013, replacing Vithlani
with another lawyer, George A. Saba.3 Bucur also alleged in a cross-complaint that he
and his two companies had all hired Vithlani. Because it is abundantly clear that Vithlani
is Bucur’s former lawyer, and therefore Bucur cannot demonstrate the probability of
prevailing, we affirm the order granting the motion to strike.
1We take judicial notice of a recently published case from Division One, Bucar v.
Ahmad (Jan. 26, 2016, D068689) 2016 Cal.App. LEXIS 48, which is related litigation
imposing $56,311 in sanctions against Bucur.
2 All further statutory references are to the Code of Civil Procedure unless stated
otherwise.
3 We grant respondent’s request for judicial notice, filed November 4, 2015.
(Evid. Code, § 452, subd. (d).)
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II
FACTUAL AND PROCEDURAL BACKGROUND
Bucur, acting as his own attorney, has not followed appellate rules and protocol.
Nevertheless, we have reviewed the record and summarized the pertinent facts. Some
information is derived from a previous appeal, Bucur v. Ujkaj, E060451 (the Ujkaj
action.)
A. The Wasarhelyi and Ujkaj Actions
As previously described in the Ujkaj appeal, Bucur and his two companies,
Liguari and VLB Associates Inc. (VLB),4 were sued in 2011 by Chuck Wasarhelyi, in a
dispute about two commercial contracts with FedEx (the Wasarhelyi action, case No.
RIC1106033.) In January 2013, Saba, instead of Vithlani, began representing Bucur. In
April 2013, a jury returned a special verdict in favor of Wasarhelyi.
In 2013, Bucur filed the Ujkaj complaint, RIC1305031. Vithlani and Bucur also
filed cross-complaints against one another in the Ujkaj case. Bucur and his companies
asserted claims of legal malpractice and related causes of action against Vithlani.
Vithlani sought to recover his attorney’s fees incurred in the Wasarhelyi case while
representing Bucur, VLB, and Liguari. In July 2014, Vithlani dismissed the part of his
4 Bucur admits he is the president of Liguari and VLB.
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collections claim against Bucur and VLB because he could collect a default judgment
against Liguari as a suspended corporation.
In November 2014, the court awarded judgment against Bucur and VLB and in
favor of Vithlani after a court trial. The court also granted Vithlani a default judgment of
about $22,000 against Liguari.
B. The Present Complaint and the Motion to Strike
In January 2015, Bucur filed a complaint for damages against Vithlani and other
defendants, which included the tenth cause of action for malicious prosecution.5 Vithlani
countered by filing a motion to strike the tenth cause of action. The central dispute
involves whether Bucur could demonstrate the probability of prevailing in light of the
facts that Vithlani had represented Bucur and Vithlani won his action against Liguari to
collect attorney’s fees. Bucur’s response was to argue that Vithlani had never
represented him personally. After a hearing, the trial court granted the motion to strike.
Bucur appeals.
III
DISCUSSION
We conduct an independent review of the trial court’s ruling on an anti-SLAPP
motion. (Bernardo v. Planned Parenthood Federation of America (2004) 115
5 Bucur incorrectly cites to his first amended complaint, which was not the
subject of the anti-SLAPP motion.
4
Cal. App. 4th 322, 339; Navarro v. IHOP Properties, Inc. (2005) 134 Cal. App. 4th 834,
839.) By its terms, the anti-SLAPP statute applies to any cause of action against a
defendant “arising from any act of that person in furtherance of the person’s right of
petition or free speech . . . .” (§ 425.16, subd. (b).) A claim affecting the exercise of
these rights is subject to a special motion to strike unless the court determines there is a
probability that the complainant will prevail on the claims. (§ 425.16, subd. (b).) The
anti-SLAPP statute protects against the use of the judicial system to chill the
constitutionally-protected right to make statements or writings before judicial or other
official proceedings, and in connection with an issue under consideration or review by a
judicial body or other legally authorized official proceeding. (§ 425.16, subd. (e).)
The anti-SLAPP statute “posits . . . a two-step process for determining whether an
action is a SLAPP.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88.) Here the parties
agree that Vithlani’s cross-complaint to collect attorney’s fees arises from rights as
defined in section 425.16, subdivision (c). (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal. 4th 53, 61.) Therefore, the burden shifts to Bucur, the opposing party, to
establish a “probability” that he will prevail. (§ 425.16, subd. (b); Equilon, at p. 61.)
Bucur must demonstrate that his claim is 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; Chavez v. Mendoza
(2001) 94 Cal. App. 4th 1083, 1087.)
5
As for the probability of prevailing, the second prong of the SLAPP analysis, an
opposing party is “required both to plead claims that were legally sufficient, and to make
a prima facie showing, by admissible evidence, of facts that would merit favorable
judgment on those claims, assuming plaintiff’s evidence were credited.” (1-800
Contacts, Inc. v. Steinberg (2003) 107 Cal. App. 4th 568, 584.)
Bucur cannot make the required showing because he cannot assert a viable claim
for malicious prosecution against his former attorney. Based on the record, Bucur cannot
show the elements of malicious prosecution: “A plaintiff must plead and prove three
elements to establish the tort of malicious prosecution: a lawsuit ‘(1) was commenced by
or at the direction of the defendant and was pursued to a legal termination favorable to
the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.’
[Citation.]” (Nunez v. Pennisi (2015) 241 Cal. App. 4th 861, 872-873.)
Bucur contends Vithlani’s successful complaint to recover attorney’s fees was
brought without cause and with malice because Vithlani never represented him. The
record contradicts his position. According to the evidence, Bucur personally executed an
attorney-client fee agreement in April 2011. Although Bucur executed the agreement
while “doing business as” Liguari, the two were not separate legal entities. (Pinkerton’s,
Inc. v. Superior Court (1996) 49 Cal. App. 4th 1342, 1348.) Instead, Vithlani represented
Bucur and both his companies until Bucur replaced Vithlani with Saba in January 2013.
In November 2013, Bucur sued Vithlani for legal malpractice, alleging Vithlani had
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represented him and his two companies. Bucur lost that claim and Vithlani won on his
cross-complaint against Liguari.
Bucur is incorrect in his assertion that Vithlani did not represent him. Therefore,
Bucur cannot show he received a favorable legal termination or that the collections action
was brought without cause and with malice. Under such circumstances, where Bucur
could not establish the probability of prevailing the trial court properly granted the anti-
SLAPP motion. (Nunez v. Pennisi, supra, 241 Cal.App.4th at pp. 874-879.)
IV
DISPOSITION
We affirm the judgment. In light of our conclusions, we need not discuss any
additional issues raised by Bucur. Vithlani is entitled as the prevailing party to recover
his costs and attorney’s fees on appeal. (Lucky United Properties Investment, Inc. v. Lee
(2010) 185 Cal. App. 4th 125, 138-139.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
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