Khartri v. Fox, Shjeflo, Hartley & Babu, LLP CA1/5 ( 2024 )

Filed 6/4/24 Khartri v. Fox, Shjeflo, Hartley & Babu, LLP CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
PRADEEP KANTILAL KHATRI,
et al.,
Plaintiffs and Respondents, A164829
v.
FOX, SHJEFLO, HARTLEY & (Alameda County
BABU, LLP, et al., Super. Ct. No. RG20083271)
Defendants and Appellants.
PRADEEP KANTILAL KHATRI,
et al.,
Plaintiffs and Respondents, A164883
v.
RAJESHKUMAR KANTILAL (Alameda County
KHATRI, Super. Ct. No. RG20083271)
Defendant and Appellant.
This is the latest lawsuit arising out of the decades-long dispute
between Rajeshkumar Khatri (Roger) and Pradeep Khatri (Peter), two
brothers, over division of family assets. Their mother, Vidyagauri Kantilal
1
Khatri (Vidya),1 died in 2013 and left all of her assets to Peter. In a decision
we refer to as Khatri III (Khatri v. Khatri (Super. Ct. San Mateo County,
2016, No. PRO123880), Roger contested Vidya’s will and other testamentary
documents, claiming lack of testamentary capacity and undue influence
among other claims. Following a 16-day bench trial in San Mateo County
Superior Court, the court found in favor of Peter and awarded him attorneys’
fees and costs based upon Code of Civil Procedure sections 128.5 and
2033.420.2 In this court’s prior opinion (Estate of Khatri (Apr. 28, 2020,
A150546) [nonpub. opn.]), we affirmed the dismissal of Roger’s contest with
prejudice and the order granting Peter’s motion for attorneys’ fees under
section 2033.420, which awarded Peter $865,559.25 in fees plus $138,621.55
in costs. (Estate of Khatri, supra, A150546.) We reversed the order granting
Peter’s motion for attorneys’ fees under section 128.5 on the basis that section
128.5 does not apply to actions filed prior to January 1, 2015. Roger’s contest
was filed in December 2013. (Estate of Khatri, supra, A150546.)
Peter and his wife, Kokila Pradeep Khatri, filed a malicious prosecution
complaint against Roger and his attorneys: Fox, Shjeflo, Hartley &
Babu, LLP; Walter E. Shjeflo; Michael A. Fox; and Sean P. Riley.3 Roger and
the attorney defendants separately filed special motions to strike the
complaint under section 425.16, the anti-SLAPP statute. The trial court
1 As we did in the prior two appeals involving the Khatri brothers, we
adopt the parties’ convention, and intend no disrespect, referring to
Rajeshkumar Khatri as Roger; to Pradeep Khatri as Peter; and to their
mother, Vidyagauri Khatri, as Vidya.
2 All statutory references are to the Code of Civil Procedure unless
otherwise stated.
3 We refer to Fox, Shjeflo, Hartley & Babu, LLP, Walter E. Shjeflo,
Michael A. Fox, and Sean P. Riley collectively as the attorney defendants.
We refer to the attorney defendants and Roger collectively as defendants.
2
denied the motions to strike, finding that Peter made a prima facie showing
that he would probably prevail on the malicious prosecution claims.4 Roger
and the attorney defendants appealed separately, and the appeals were
consolidated.
FACTUAL AND PROCEDURAL BACKGROUND
Our prior opinion (Estate of Khatri, supra, A150546) summarizes the
background of the disputes between Roger, Peter, and Vidya as follows:
“A. Khatri I
“In 2003, Peter, individually and on behalf of Vidya, sued Roger,
seeking to rescind agreements regarding family income properties and to
dissolve a family partnership established in the 1980’s, which owned six
income properties.[5] Vidya, separately represented by attorney Albert
Martin, cross-complained against her sons, seeking to rescind certain
agreements that divided the properties and provided her with a $1,500-per-
month income. The trial court entered an interlocutory judgment finding
Roger had a 50-percent ownership interest and a 50-percent income interest
in the partnership, Vidya had a 50-percent ownership interest and a 25-
percent income interest, and Peter had a 25-percent income interest. The
4 The trial court granted Roger’s motion in part, as to Kokila only, on
the basis that she was not named in her individual capacity in the underlying
will contest (Khatri III) and therefore could not assert a claim for malicious
prosecution. Although the attorney defendants made the same arguments
regarding Kokila, the trial court’s order on the attorney defendants’ motion to
strike denied the motion in full and did not address the issue of Kokila’s
ability to maintain a malicious prosecution action. We address this issue
post, in part V.
5 Roger cross-complained against Peter and Vidya, seeking dissolution
of partnership and alleging breach of contract, breach of fiduciary duty,
conversion, fraud, declaratory relief, common counts, and interference with
contract and prospective economic advantage.
3
court rescinded the agreements regarding the partnership assets, ordered the
partnership to be dissolved, and appointed a referee to oversee the
dissolution. The trial court found that Vidya’s sons ‘clearly unduly influenced
her behavior—both Peter and Roger at various times instructed her to sign
documents, sometimes documents they themselves prepared without
adequate explanation of either the content of the document or her statutory
rights . . . . There was a resulting benefit to them and a detriment to her.
[Citation.] Mother, by these transactions was “relieved” . . . of millions of
dollars in assets and support consistent with the lifestyle of the family.
[¶] Accordingly, judgment enters for Mother on the rescission cause of action
as Mother’s consent to the agreements was given by undue influence.’ The
court later adopted most of the referee’s recommendations and ordered four
properties, with a combined appraised value of $10.275 million, to be
allocated and transferred to Roger, and two properties, with a combined
appraised value of $9,374,285, to be allocated and transferred to Vidya.
Roger was also ordered to pay Vidya and Peter $783,398.50. Roger appealed,
and we affirmed in an opinion issued on June 9, 2011. (Khatri v. Khatri
(June 9, 2011, A128718, A129175) [nonpub. opn.].)
“B. Khatri II
“In 2012, Peter and Vidya (through Peter) sued Roger for elder abuse.
On November 7, 2014, the court granted Roger’s motion for summary
judgment, finding he was entitled to judgment based on his ‘affirmative
defenses of res judicata and/or collateral estoppel or, in the alternative, due to
the time-bar of the applicable statute of limitations and/or the plaintiff’s
4
failure to file a compulsory claim in earlier litigation among and between the
Khatri family members.’[6] This case was not appealed.
“C. Khatri III
“After Vidya’s death, in November 2013, Peter filed a petition for
probate of will and for letters testamentary and a petition to administer
estate. Roger filed a contest and objection to probate. Roger’s Fifth Amended
Contest and Grounds of Objection to Probate of Purported Will(s) sought to
invalidate 16 inter vivos transfers of property, three powers of attorney, six
trust transactions, and six wills and codicils on the grounds of (1) lack of
capacity; (2) undue influence, fraud, and concealment, duress, menace,
coercion, mistake, or as to disqualified donees; and (3) lack of due execution.
The trial court’s statement of decision explains: ‘The gist of the Thirty-One
Causes of Action . . . is that every Deed executed by Vidya during the period
2002 to 2014, every Transfer of Personal Property by Vidya, every power of
attorney executed by Vidya during the period 2001 to 2003, and every Will or
Codicil executed by Vidya during the period 2001 to 2012 is invalid due to
lack of capacity, undue influence (including Fraud, and Concealment, Duress,
Menace, Coercion, Mistake, or distribution to Disqualified Donees), or lack of
due execution, and that Vidya died intestate. Roger’s Fifth Amended Contest
seeks to impose, on behalf of Vidya’s estate, a constructive trust over all
property transferred by Vidya during her lifetime, so that all such property
can be divided equally between Roger and Peter, Vidya’s sole intestate heirs.’
6 [Fn. 3 in quoted material.] The court’s order includes these
concluding comments: ‘As to the foregoing legal conclusions that it has
reached, the Court also believes them to be reasonable and appropriate in
light of the manifest Bleak House aura of these two Khatri v. Khatri cases—
bearing the hallmark of a potentially endless family feud, that has already
gone on for years, that begs to be quelled before any more litigation “blood” is
spilled.’
5
“Following a 16-day bench trial, the court found against Roger on all
claims and found ‘clear and convincing evidence that each of the
31 documents is NOT invalid due to lack of capacity, undue influence
(including fraud, concealment, duress, menace, coercion, mistake, and
transfer to disqualified donee) or lack of due execution.’ The court found
Roger’s claims were ‘frivolous in that he proceeded to trial with negligible
evidence of lack of capacity at the time of execution, zero evidence of undue
benefit, and in the face of overwhelmingly clear and convincing evidence that
the Thirty-One documents in question were NOT invalid due to lack of
capacity, undue influence . . . or lack of due execution . . . .’ The tentative
statement of decision stated, ‘Peter appears to be entitled to Costs and
Attorneys Fees . . . incurred in connection with Denials of Requests for
Admissions proved false at trial,’ and ordered Peter to file a motion for costs
and attorneys’ fees pursuant to section 2033.420, subdivisions (a) and (b), and
‘a motion for any other Costs or Attorneys Fees that Peter contends he is
entitled to.’
“Peter filed two motions for attorneys’ fees and costs, one under section
2033.420 seeking $865,559.25 in fees and $138,621.55 in costs, and one under
section 128.5 seeking $1,497,680.75 in fees and $346,874.19 in costs. Roger
opposed both motions. The court held a hearing on the attorneys’ fees
motions and on Roger’s objections to the tentative statement of decision. The
court overruled Roger’s objections, adopted the tentative statement of
decision, and granted both of Peter’s attorneys’ fees motions. On
December 30, 2016, the court issued an order and judgment granting both
motions and awarding a total of $1,497,680.75 in fees and $346,874.19 in
6
expenses, which were the amounts Peter incurred for the entire action.[7] On
the same day, the court entered judgment denying and overruling each of
Roger’s causes of action and dismissing the fifth amended contest with
prejudice.” (Estate of Khatri, supra, A150546.)
Our prior decision affirmed the trial court’s dismissal of Roger’s fifth
amended contest with prejudice and the order awarding Peter attorneys’ fees
of $865,559.25 and costs of $138,621.55 under section 2033.420. (Estate of
Khatri, supra, A150546.) We reversed the order granting Peter’s motion for
attorneys’ fees under section 128.5 on the basis that section 128.5 does not
apply to actions filed prior to January 1, 2015. Roger’s contest was filed in
December 2013. (Estate of Khatri, supra, A150546.)
D. Peter’s Malicious Prosecution Complaint8
On December 17, 2020, Peter and Kokila filed a complaint against
Peter’s brother Roger and the attorney defendants alleging malicious
prosecution as to the litigation in Khatri III. The complaint summarizes the
background of the family disputes and prior litigation. It alleges the attorney
defendants represented Roger in Khatri I and Khatri III. As to each of the
defendants, the complaint alleges no reasonable person or attorney would
have believed there were reasonable grounds to contest all of Vidya’s estate
7 [Fn. 4 in quoted material.] The trial court granted both attorneys’
fees motions, finding that Peter is entitled to fees of $855,559.25 and costs of
$138,621.55 under section 2033.420 for amounts incurred from August 27,
2015, to December 16, 2015, and that he was entitled to fees of $1,497,680.75
and costs of $346,874.19 for costs under section 128.5, representing fees and
costs incurred during the entire action. However, because the awards are not
cumulative, the total amount awarded was fees of $1,497,680.75 and costs of
$346,874.19.
8 Although both Peter and Kokila are named plaintiffs in the malicious
prosecution complaint, we refer to Peter’s claims and arguments as a
shorthand reference.
7
planning documents from 2004 to 2013 based on lack of capacity or undue
influence.
Regarding the lack of capacity allegations Roger asserted in Khatri III,
the complaint alleges that neither Roger nor the attorney defendants who
deposed Vidya in 2004 in Khatri I and cross-examined her in 2005 had
personal experience of Vidya’s behavior suggesting a lack of testamentary
capacity. Further, no other witnesses who had personal interactions with
Vidya could testify to facts supporting a lack of testamentary capacity. Peter
further alleges that even Roger’s expert neuropsychologist, who never met
Vidya, provided no opinion as to Vidya’s lack of testamentary capacity prior
to 2008.
Regarding the undue influence allegations Roger asserted in Khatri III,
the malicious prosecution complaint alleges that the defendants knew that
Roger had already been awarded one-half of the family assets in Khatri I and,
thus, there was no basis to claim that Vidya’s transfer or bequest of her
assets to Peter was “ ‘undue’ ” or inequitable. Further, the defendants were
aware that Roger angered and alienated Vidya by his actions, including
defrauding her regarding a $900,000 loan taken against a Redwood City
motel, suing her for fraud in Khatri I, and rejecting the Gujarati custom that
he live in his mother’s house until her death. Thus, there was no basis for
Roger’s claim that Vidya’s decision to leave her assets to Peter was the result
of undue influence.
The complaint further alleges that Roger filed the underlying will
contest with malice and for an improper purpose. Specifically, Roger was
dissatisfied with the judgment in Khatri I and he wanted the Belmont
residence. He allegedly believed he could force Peter into agreeing to give
Roger at least three-quarters of the family assets in order to avoid the
8
expense of defending the will contest. The attorney defendants allegedly
knew of Roger’s ongoing resentment toward Peter and Roger’s dissatisfaction
with the Khatri I judgment. They allegedly filed the unmeritorious,
underlying will contest on Roger’s behalf in order to collect legal fees.
E. Anti-SLAPP Motions
Roger and the attorney defendants each filed special motions to strike
the malicious prosecution complaint under section 425.16, the anti-SLAPP
statute. The trial court denied the motions, finding that the plaintiffs met
their burden of presenting a prima facie showing that they will probably
prevail on their malicious prosecution claim. The trial court found that Peter
presented sufficient evidence to support a prima facie case, including the
findings in Khatri III regarding Vidya’s testamentary capacity and Roger’s
claim of undue influence, which applied based upon the doctrine of issue
preclusion.9 It further found that the attorney defendants, who represented
Roger in prior disputes with Vidya and Peter, “likely knew that Roger’s
challenges to the disposition of the assets in the trust and Vidya’s direct
bequests to Peter had no evidentiary basis” and that Peter made the required
prima facie showing that “no reasonable attorney would have believed that
Roger’s numerous claims were tenable.”
DISCUSSION
I. Anti-SLAPP Statutory Framework
Section 425.16 provides: “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or
9 The Supreme Court has stated that although the term “collateral
estoppel” has been used to refer to “issue preclusion,” it would use the term
“issue preclusion.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813,
823–825.) We will do the same, except where case law uses the term
“collateral estoppel.”
9
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 that
claim.” (§ 425.16, subd. (b)(1).) The statute is “designed to protect
defendants from meritless lawsuits that might chill the exercise of their
rights to speak and petition on matters of public concern.” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 883–884.)
Anti-SLAPP motions are decided through a two-step process. First, the
court determines whether the challenged lawsuit arises from protected
activity. If the first step is satisfied, the court then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim. (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 (Jarrow).) “To meet
his burden, the 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 if the evidence submitted by the plaintiff is
credited.” [Citations.] In deciding the question of potential merit, the trial
court considers the pleadings and evidentiary submissions of both the
plaintiff and the defendant [citation]; 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 defendant’s evidence supporting
the motion defeats the plaintiff’s attempt to establish evidentiary support for
the claim. [Citation.]’ ” (Cole v. Patricia A. Meyer & Associates, APC (2012)
206 Cal.App.4th 1095, 1104–1105 (Cole).)
On appeal, we review the trial court’s order denying an anti-SLAPP
motion de novo. (Cole, supra, 206 Cal.App.4th at p. 1105.) We apply the
same two-step analysis as the trial court. “We look at the pleadings and
10
declarations, accepting as true the evidence that favors the plaintiff and
evaluating the defendant’s evidence ‘ “only to determine if it has defeated
that submitted by the plaintiff as a matter of law.” [Citation.]’ ” (Ibid.) To
defeat an anti-SLAPP motion, a plaintiff need only establish that his or her
claim has “ ‘minimal merit’ . . . .” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291 (Soukup).) In other words, the plaintiff’s claim
must meet “ ‘a minimum level of legal sufficiency and triability’ [citation].”
(Jarrow, supra, 31 Cal.4th at p. 738.)
The parties agree that the first prong of the section 425.16 analysis is
satisfied. (Jarrow, supra, 31 Cal.4th at p. 733.) We therefore focus on the
second prong and consider whether Peter has demonstrated the requisite
probability of prevailing on the merits of his malicious prosecution claim.
II. Prima Facie Requirements for Malicious Prosecution
The elements of a malicious prosecution claim are that the prior action
(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. (Soukup, supra, 39 Cal.4th
at p. 292.) Here, it is undisputed that Khatri III was commenced by Roger
and was pursued to a legal determination in Peter’s favor. Therefore, in
determining whether Peter has presented a prima facie case demonstrating a
probability of prevailing on the malicious prosecution claim, we focus on the
second and third elements of a malicious prosecution claim.
“The question of probable cause is ‘whether as an objective matter, the
prior action was legally tenable or not.’ (Sheldon Appel Co. v. Albert & Oliker
[(1989)] 47 Cal.3d [863,] 868.) ‘A litigant will lack probable cause for his
action either if he relies upon facts which he has no reasonable cause to
believe to be true, or if he seeks recovery upon a legal theory which is
11
untenable under the facts known to him. [Citation.] ‘In a situation of
complete absence of supporting evidence, it cannot be adjudged reasonable to
prosecute a claim.’ [Citation.] Probable cause, moreover, must exist for every
cause of action advanced in the underlying action. ‘[A]n action for malicious
prosecution lies when but one of alternative theories of recovery is
maliciously asserted . . . .’ [Citations.]” (Soukup, supra, 39 Cal.4th at p. 292.)
A malicious prosecution claim may also be based upon the continuing of an
already filed lawsuit without probable cause. (Zamos v. Stroud (2004) 32
Cal.4th 958, 969 (Zamos).) The fact that a prior action was ultimately found
to lack merit does not establish a lack of probable cause. (Jarrow, supra, 31
Cal.4th at p. 743, fn. 13.) Instead, the question to be decided in the malicious
prosecution case is whether any reasonable attorney would have thought the
underlying claims were tenable. (Sycamore Ridge Apartments LLC v.
Naumann (2007) 157 Cal.App.4th 1385, 1402.)
“ ‘The “malice” element . . . relates to the subjective intent or purpose
with which the defendant acted in initiating the prior action. [Citation.] The
motive of the defendant must have been something other than that of
bringing a perceived guilty person to justice or the satisfaction in a civil
action of some personal or financial purpose. [Citation.] The plaintiff must
plead and prove actual ill will or some improper ulterior motive.’ [Citations.]
Malice ‘may range anywhere from open hostility to indifference. [Citations.]
Malice may also be inferred from the facts establishing lack of probable
cause.’ ” (Soukup, supra, 39 Cal.4th at p. 292.) “Malice may be inferred from
circumstantial evidence, such as the defendants’ lack of probable cause,
supplemented with proof that the prior case was instituted largely for an
improper purpose. [Citation.] This additional proof may consist of evidence
that the prior case was knowingly brought without probable cause or was
12
brought to force a settlement unrelated to its merits. A defendant attorney’s
investigation and research also may be relevant to whether the attorney
acted with malice.” (Cole, supra, 206 Cal.App.4th at p. 1114.) Malice can
also be inferred “when a party continues to prosecute an action after
becoming aware that the action lacks probable cause.” (Daniels v. Robbins
(2010) 182 Cal.App.4th 204, 226.)
III. Prima Facie Showing that Defendants Lacked Probable Cause
to Pursue Roger’s Will Contest in Khatri III
Roger’s fifth amended contest and grounds for objection to probate
(“will contest”) alleged 31 causes of action seeking to invalidate 16 inter vivos
transfers of property, three powers of attorney, six trust transactions, and six
wills and codicils on the grounds of (1) lack of capacity; (2) undue influence,
fraud, concealment, duress, menace, coercion, mistake, or as to disqualified
donees; and (3) lack of due execution.
As discussed ante, in order to defeat the anti-SLAPP motions, Peter
must establish a probability of prevailing by demonstrating that his
malicious prosecution complaint is legally sufficient and “supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40
Cal.App.4th 539, 548.) However, Peter need only demonstrate that one of the
31 causes of action asserted by Roger was either initiated or continued
without probable cause. (Soukup, supra, 39 Cal.4th at p. 292.)
Roger’s will contest asserted that each of Vidya’s testamentary
documents was invalid due to the undue influence of Peter. Welfare and
Institutions Code section 15610.70 defines undue influence as “excessive
persuasion that causes another person to act or refrain from acting by
overcoming that person’s free will and results in inequity.” (Italics added.)
Section 15610.70 further lists various factors that shall be considered in
13
determining whether a result was produced by undue influence, including the
vulnerability of the victim; the influencer’s apparent authority or relationship
with the victim; and the equity of the result, which may include evidence of
“the economic consequences to the victim, any divergence from the victim’s
prior intent or course of conduct or dealing, the relationship of the value
conveyed to the value of any services or consideration received, or the
appropriateness of the change in light of the length and nature of the
relationship.” (Welf. & Inst. Code, § 15610.70, subd. (a)(1)–(4).) To set aside
a will on the grounds of undue influence, “ ‘[evidence] must be produced that
pressure was brought to bear directly on the testamentary act . . . . Mere
general influence . . . is not enough; it must be influence used directly to
procure the will and must amount to coercion destroying the free agency on
the part of the testator.’ ” (Estate of Mann (1986) 184 Cal.App.3d 593, 606.)
Further, a presumption of undue influence arises when there is evidence of
(1) a confidential relationship between the decedent and the beneficiary,
(2) the beneficiary’s active participation in procuring the execution of the will,
and (3) undue benefit to the beneficiary. (Ibid.)
As we explained in Estate of Khatri, supra, A150546: “The issue is not
whether Peter profited from Vidya’s disposition of her estate but whether his
profit was ‘undue.’ ‘The determination of this issue is based on a qualitative
assessment of evidence, not a quantitative one. “To determine if the
beneficiary’s profit is ‘undue’ the trier must necessarily decide what profit
would be ‘due.’ These determinations cannot be made in an evidentiary
vacuum. The trier of fact derives from the evidence introduced an
appreciation of the respective relative standings of the beneficiary and the
contestant to the decedent in order that the trier of fact can determine which
party would be the more obvious object of the decedent’s testamentary
14
disposition.” ’ (Conservatorship of Davidson [(2003)] 113 Cal.App.4th [1035,]
1060–1061.)”
We focus our analysis on whether Roger’s claims of undue influence
were supported by probable cause.
A. Peter Can Rely on Prior Findings in Khatri III to Support
His Prima Facie Showing that Defendants Lacked
Probable Cause
Peter argues that the judgments and rulings in Khatri III, which were
affirmed in Estate of Khatri, supra, A150546, are sufficient to meet his
burden to demonstrate a prima facie case that the defendants lacked
probable cause to pursue the will contest. Relying on Key v. Tyler (2019) 34
Cal.App.5th 505 (Key), Peter argues that under the principles of issue
preclusion, these prior findings, affirmed on appeal, “are sufficient to
establish at least a prima facie case that [defendants] lacked probable cause
to try Roger’s Contest.” Specifically, he claims that the Khatri III findings,
including that Roger’s will contest was “ ‘frivolous,’ ” that Roger’s own
evidence established by clear and convincing evidence that none of the
testamentary documents was invalid due to undue influence, and that Roger
“ ‘utterly failed to provide even a scintilla of credible evidence [of] the element
of undue benefit,’ ” are sufficient to support Peter’s prima facie case that
Roger pursued his will contest without probable cause.
“Collateral estoppel (also known as issue preclusion) prevents
relitigation of previously decided issues. [Citation.] Issue preclusion applies
‘ “(1) after final adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one who was a
party in the first suit or one in privity with that party.” ’ [Citations.] . . .
[¶] The identical issue requirement for issue preclusion addresses whether
identical factual allegations are at stake, ‘not whether the ultimate issues or
15
dispositions are the same.’ [Citation.] And the ‘ “necessarily decided” ’ prong
means only that ‘the issue not have been “entirely unnecessary” to the
judgment in the initial proceeding.’ [Citation.]” (Key, supra, 34 Cal.App.5th
at p. 534.)
The defendants argue that issue preclusion does not apply because the
issue in Khatri III was whether there was clear and convincing evidence of
lack of capacity and undue influence whereas in Peter’s malicious prosecution
case the issue is whether the defendants had probable cause to bring the will
contest. They also rely on Sosinsky v. Grant (1992) 6 Cal.App.4th 1548 to
assert that the findings in the Khatri III decision are inadmissible hearsay
that cannot be considered for the truth.10
10 Sosinsky v. Grant, supra, 6 Cal.App.4th 1548, did not involve an
anti-SLAPP motion. Instead, it was an appeal from the grant of a summary
judgment motion in favor of defendants in a malicious prosecution action.
(Id. at pp. 1553–1554.) The court found that when a court takes judicial
notice of court records, it is not taking notice of the truth of the findings.
(Id. at p. 1565.) “While we have no quarrel with the fact that a judge, after
hearing a factual dispute between litigants A and B, may choose to believe A,
and make a finding of fact in A’s favor, and while we have no quarrel that at
some subsequent time it may be proper to take judicial notice that the judge
did in fact make that particular finding in favor of A, the taking of judicial
notice that the judge made a particular factual finding is a far cry from the
taking of judicial notice that the ‘facts’ found by the judge must necessarily be
the true facts, i.e., must necessarily be ‘the truth.’ To state this a bit more
simply, the taking of judicial notice that the judge believed A (i.e., that the
judge ruled in favor of A on a particular factual dispute) is different from the
taking of judicial notice that A’s testimony must necessarily have been true
simply because the judge believed A and not B.” (Ibid.) We find Sosinsky
distinguishable because it “expressly note[d] that in the present case no
attempt was made by the appellants to apply the doctrine of collateral
estoppel . . . .” (Id. at p. 1566.) In addition, Sosinsky involved an appeal from
a summary judgment decision, rather than the more preliminary question at
issue here of whether Peter has made a prima facie showing that defendants
lacked probable cause to pursue the will contest in Khatri III.
16
We agree with defendants that the ultimate issue in Peter’s malicious
prosecution action is whether defendants had probable cause to bring the will
contest. The Khatri III statement of decision did not decide this precise issue.
However, the Khatri III statement of decision includes factual findings that
are relevant to the question of whether the defendants had probable cause to
pursue the will contest.
We find Key, supra, instructive. Key involved underlying probate court
litigation between sisters who were beneficiaries of a family trust.
(34 Cal.App.5th at p. 509.) Tyler was the trustee. The trust was purportedly
amended in 2007 to effectively disinherit Key. (Ibid.) In 2011, Key filed a
petition seeking to invalidate the amendment on the basis that it was a
product of Tyler’s undue influence over the decedent. The probate court
granted the petition, and the decision was affirmed on appeal. (Ibid.) Key
then filed a petition to enforce against Tyler the trust’s no contest clause,
which disinherited beneficiaries who contested the trust or sought to
invalidate any of its provisions. (Id. at pp. 509, 511.) Key argued that Tyler’s
defense of the invalid amendment that purported to disinherit Key
implicated the no contest clause. (Id. at p. 509.) Tyler filed an anti-SLAPP
motion, which the probate court granted. (Id. at pp. 509–510.)
The Court of Appeal reversed the order granting Tyler’s anti-SLAPP
motion. (Key, supra, 34 Cal.App.5th at p. 510.) It found that Key had
adequately demonstrated a likelihood of success under the second step of the
anti-SLAPP procedure. (Ibid.) The appellate court noted that the probate
court held a 17-day trial and then issued a 67-page statement of decision
invalidating the amendment based upon Tyler’s undue influence. (Id. at pp.
510, 513.) The findings of the probate court provided a sufficient basis to
conclude that Key had shown a probability of success on her no contest
17
petition. (Id. at pp. 510, 523.) To prevail on her no contest petition, Key was
required to prove that Tyler lacked probable cause to defend the 2007
amendment. (Id. at pp. 528–530.) The Court of Appeal explained that the
lack of probable cause element of Key’s claim was similar to a plaintiff’s
burden in malicious prosecution claims. (Id. at pp. 529–530.) It then found
that certain facts established in the prior probate proceeding were sufficient
to support a prima facie case that Tyler defended the 2007 amendment
without probable cause to do so. (Id. at pp. 526, 531–532.) The Court of
Appeal distinguished the Sosinsky case on the basis that collateral estoppel,
or issue preclusion, applied to certain prior findings of the probate court,
which was not an issue addressed in Sosinsky. (Id. at pp. 531–532.) It
applied issue preclusion to identify certain relevant facts established by the
probate court’s prior decision (including that Tyler actively participated in
procuring the 2007 amendment, overcame the decedent’s will, and obtained
undue benefits under the amendment) and found that they were sufficient to
establish at least a prima facie case that Tyler lacked probable cause to
defend the amendment. (Id. at pp. 536–539.) The appellate court explained
that the probate court in the prior proceeding was not asked to decide the
issue of probable cause and that the prior factual findings did not establish a
lack of probable cause as a matter of law. (Id. at p. 539.) However, the
established facts were sufficient to support Key’s prima facie case that Tyler
lacked probable cause. (Ibid.) The established facts supported the inferences
that Tyler acted intentionally to manipulate the decedent and that the
amendment was not the result of the decedent’s free will. (Id. at pp. 538–
539.) “Based on these inferences, a court could find that a reasonable person
in Tyler’s position would not have believed there was a ‘reasonable likelihood’
18
that the 2007 Amendment was valid. These findings are sufficient to meet
Key’s burden under step two of the anti-SLAPP procedure.” (Id. at p. 539.)
B. Khatri III Findings Supporting Prima Facie Showing that
Defendants Lacked Probable Cause to Pursue Undue
Influence Claims
The Khatri III statement of decision summarizes the evidence
presented during the 16-day trial of Vidya’s long-standing intent that Roger
and Peter share equally in the assets of their parents. The decision found
Roger failed to provide “even a scintilla of credible evidence . . . of undue
benefit to Peter . . . .” There was no “evidence whatsoever that Vidya’s efforts
to give Peter a share of the family wealth equal to that already conferred on
Roger by giving Peter 100% of Vidya’s share of the estate constituted an
undue benefit.” The decision found every lawyer witness testified about
“Vidya’s determination and absolute clarity that Roger and Peter were to
receive equal shares of the total family fortune.” Other witnesses also
testified that Vidya “was adamant that Peter should receive a share of the
family wealth equal to that previously provided to Roger and that the
mechanism for accomplishing that goal was to give Peter 100% of Vidya’s
half share of the family wealth.”
The decision refers to “the mountain of clear and convincing evidence
that Vidya’s estate plan was not the product of undue influence” and provides
multiple supporting examples, including that the plan to provide equal
shares of the family wealth to each brother predated the estrangement
between Vidya and Roger; that Vidya was devasted that Roger moved out of
the family home and abandoned her and she repeatedly stated that Roger
had “ ‘stabbed her in the heart’ ”; and that Vidya was upset when the referee
in Khatri I recommended that Roger be given the Redwood City motel, which
had tremendous sentimental value to Vidya, and that Vidya pleaded with
19
Roger and the referee that it be given to her in exchange for a more valuable
property but Roger refused to agree. The decision further refers to the
disputes between Vidya and Roger in Khatri I regarding money Vidya felt
Roger “had ‘stolen’ ” from her and Roger’s attempts to “ ‘steal’ ” her gold bar.
The decision references the Khatri I judgment, by which Roger was required
to pay the loan secured by the Redwood City motel and to reimburse Vidya
for money Roger took from certain bank accounts, and Vidya was determined
to be the owner of the gold bar. As the trial court found, and this court
affirmed, “ ‘there was clear and convincing evidence that Vidya’s
determination to give Peter a share of the family fortune equal to that
already provided to Roger was not the result of any mysterious aura of
influence exerted by Peter, but existed before Peter was in a position to exert
influence, and was significantly reinforced by behavior of Roger that had
nothing to do with Peter’s influence over Vidya.’ ”
C. Peter Has Established a Prima Facie Case that His
Malicious Prosecution Claim Has at Least Minimal Merit
To defeat defendants’ anti-SLAPP motions, Peter must establish that
his malicious prosecution claim has at least “minimal merit.” (Gruber v.
Gruber (2020) 48 Cal.App.5th 529, 539.) We find that Peter has met his
burden. As Key, supra, explained, although the prior probate court
proceedings in that case did not establish a lack of probable cause to pursue
the underlying claim as a matter of law, the prior factual findings were
sufficient to support a prima facie case of lack of probable cause.
(34 Cal.App.5th at p. 539.) Here too the factual findings made in the
Khatri III statement of decision, discussed ante, are sufficient to support at
least a prima facie case that the defendants lacked probable cause to pursue
20
the will contest based on undue influence.11 We do not suggest that the
Khatri III findings by themselves are sufficient to prove a lack of probable
cause when the malicious prosecution action is tried. However, at this early
stage in the proceeding, when Peter is opposing an anti-SLAPP motion, he
may rely upon the Khatri III findings as support for his prima facie case that
the defendants lacked probable cause to pursue the undue influence claims.
(Gruber, supra, 48 Cal.App.5th at p. 539.)
In addition to the factual findings in the Khatri III statement of
decision, Peter also relies upon the Khatri III ruling awarding Peter
discovery sanctions under section 2033.420, subdivision (a) based on Roger’s
denial of requests asking him to admit that each contested instrument was
executed without undue influence. The Khatri III trial court found that
Roger lacked a good faith basis for denying the requests for admissions on
August 27, 2015, and awarded Peter attorneys’ fees and costs. It specifically
rejected the 14 evidentiary bases that Roger asserted provided him with a
good faith and reasonable belief he would prevail on his claims. The trial
court’s order states that Roger’s “own case-in-chief failed to provide any
credible evidence that Vidya ever intended a testamentary outcome other
than that her two sons should share equally in the family assets, and failed
11 For the first time in their reply brief, attorney defendants argue that
issue preclusion cannot apply to them because they are not in privity with
Roger. This issue was not raised below and is therefore forfeited. (Fretland
v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489 [party cannot raise
new issue not raised below and raised for the first time in reply brief].) In
this case, in which both Roger and the attorney defendants are defendants,
and in which the attorney defendants have represented Roger in decades-long
litigation against Peter, the factual findings in the Khatri III statement of
decision, discussed ante, are sufficient to support at least a prima facie case
that the attorney defendants lacked probable cause to pursue the will contest
based on undue influence. (Key, supra, 34 Cal.App.5th at p. 539.)
21
to present any evidence that would support a judgment that Vidya ever
changed her testamentary intent . . . as a result of . . . undue influence . . . .
Roger also failed in his case in chief to present evidence that would support a
judgment . . . that any of the challenged instruments and deeds effecting a
relatively even split of the family assets was the product of any undue
influence by Peter or his family. Nor did Roger ever articulate to the Court a
coherent explanation why an equal division of family assets between the two
sons, after taking into account the 50% interest in the six partnership
properties already owned by Roger at the time of the 1993 Trust could be
considered inequitable by Vidya.” This order was affirmed on appeal. (Estate
of Khatri, supra, A150546.)12 We find that the discovery sanctions award
entered against Roger further supports Peter’s prima facie case that the
defendants lacked probable cause to pursue the will contest based upon
alleged undue influence. (Key, supra, 34 Cal.App.5th at p. 531; Mattel, Inc. v.
Luce, Forward Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1190
[sanctions award finding prior action was “ ‘ “without factual foundation” ’ ”
was “evidence that the underlying action was filed without probable cause”].)
In addition to the Khatri III rulings, Peter also refers to documentary
evidence from 2004 in which Vidya stated that she wanted an equal division
of assets and that she was not planning to give the Belmont residence to
Roger, as well as a 2002 agreement signed by Roger that begins with the
preamble: “Although most, if not all, assets Vidyagauri owns will ultimately
12 The trial court’s order also awarded Peter sanctions under section
128.5. However, that award was reversed on appeal because section 128.5
does not apply to actions filed prior to 2015. Roger asserted the same
14 evidentiary bases in opposition to both motions, arguing that they
provided him with a good faith belief his claims were not frivolous and a good
faith belief he would prevail at trial.
22
be distributed to her son Peter , . . .” This documentary evidence, which
indicates Vidya’s intent to ultimately give her share of the family wealth to
Peter, also supports Peter’s prima facie case that he has a probability of
prevailing on the merits by proving that Roger’s claims of undue influence
were pursued without probable cause. (Gruber v. Gruber, supra, 48
Cal.App.5th at p. 539.)
D. Defendants’ Evidence Does Not Defeat, as a Matter of Law,
Peter’s Showing that Defendants Lacked Probable Cause
to Pursue Undue Influence Claims
Having found that Peter has presented evidence sufficient to show a
probability of prevailing on the merits by proving that Roger’s claims of
undue influence were pursued without probable cause, we next consider the
evidence presented by defendants to determine if it defeats Peter’s showing
as a matter of law. (Cole, supra, 206 Cal.App.4th at pp. 1104–1105.) We
again focus on the undue benefit aspect of Roger’s undue influence claims
alleged in the will contest. (Conservatorship of Davidson, supra, 113
Cal.App.4th at pp. 1060–1061.)
Roger and the attorney defendants each argue there is evidence that
Peter unduly benefited from changes to Vidya’s estate plan because Peter
went from inheriting 50 percent of the family estate in the 1993 Khatri trust
to inheriting 100 percent. They assert, without citation to evidence, that it is
reasonable to infer that Peter unduly influenced Vidya to alter her prior
intent to have Roger and Peter be equal beneficiaries. They further assert
that one of Vidya’s attorneys explained to her that the 1993 trust conveyed
only Kantilal Khatri’s interest because Roger already owned 50 percent and
that the attorney explained this again in 2000 in connection with a Heggstad
petition. However, the record citations provided are to the order in Khatri I
on Peter’s “motion to vacate and modify court order re accounting, exchange
23
and offsets regarding properties, accounting and dissolution of partnership”
and the 2000 order to transfer real property. Neither order refers to anything
Vidya may have been told by her attorney. The final evidence defendants cite
to demonstrate that Peter unduly benefited from the testamentary
documents is individual and partnership tax returns for 2001 showing that
Roger had a 50-percent ownership interest in the family partnership.
The defendants also seek to rely on the Khatri I court’s order rescinding
various documents that sought to divide the family assets on the basis that
both Peter and Roger exerted undue influence over Vidya at various times.
We are not persuaded that this order, standing alone, is evidence that Peter
unduly benefited when Vidya left her estate to Peter in 2013, after Roger
received approximately one-half of the family assets based on the Khatri I
judgment. We also note that the Khatri I statement of decision specifically
states that mother “amended her revocable trust to leave [the Belmont
residence] to Peter, which she had the right to do,” and confirmed “Mother
and the Khatri Family Trust as sole owners of [the Belmont residence] and
Mother’s continued control over the asset based on the revocable nature of
her trust.”
The evidence cited by defendants regarding the alleged undue benefit
element does not demonstrate, as a matter of law, that Roger had probable
cause to contest the testamentary documents based on undue influence.
(Cole, supra, 206 Cal.App.4th at pp. 1104–1105.) Notably, much of the
evidence defendants reference predates the Khatri I litigation, which Peter
and Vidya initiated in 2003 and which resulted in a December 27, 2005
judgment dissolving the partnership and an April 9, 2010 order dividing the
partnership assets between Vidya and Roger following recommendations of
the court-appointed referee. The status of the Roger’s ownership interest in
24
the family partnership prior to dissolution does not demonstrate, as a matter
of law, that the defendants had probable cause in 2013 to contest the
testamentary documents based on undue influence.
IV. Prima Facie Case of Malice
We next address whether Peter has demonstrated a prima facie case of
malice. (Cole, supra, 206 Cal.App.4th at pp. 1113–1114.) “The malice
element of malicious prosecution goes to the defendants’ subjective intent for
instituting the prior case. [Citation.] Malice does not require that the
defendants harbor actual ill will toward the plaintiff in the malicious
prosecution case, and liability attaches to attitudes that range ‘ “from open
hostility to indifference. [Citations.]” ’ [Citation.] Malice may be inferred
from circumstantial evidence, such as the defendants’ lack of probable cause,
supplemented with proof that the prior case was instituted largely for an
improper purpose. [Citation.] This additional proof may consist of evidence
that the prior case was knowingly brought without probable cause or was
brought to force a settlement unrelated to its merits. [Citation.]” (Ibid.)
Thus, while malice is not established by a mere lack of probable cause, it can
be established by a knowing lack of probable cause. (Cole, at p. 1114; Daniels
v. Robbins, supra, 182 Cal.App.4th at p. 226.) “[A] corollary to this rule
[is that] malice can be inferred when a party continues to prosecute an action
after becoming aware that the action lacks probable cause.” (Daniels, supra,
at p. 226.)
We address the malice issue first with respect to Roger and then as to
the attorney defendants.
A. Malice: Roger
On December 27, 2005, the trial court in Khatri I issued its statement
of decision. The decision summarized the family’s efforts to divide, and
25
resulting disputes over, the family assets, including the partnership income
properties, the Belmont residence, and a Standard Chartered Bank account
in London. Among other findings, the statement of decision found that
following a family argument, Roger moved from the Belmont residence to
Castro Valley and mother refused Roger’s request to move with him. This
ended the family’s cultural tradition of the eldest son providing care for the
mother. Roger had no contact with Vidya after his move. Prior to moving,
Roger took out a loan against the Redwood City motel for $900,000 and later
transferred the $900,000 loan proceeds to an individual bank account in his
name only, at ABN AMRO Bank in London. Mother amended her revocable
trust to leave the Belmont residence to Peter. Roger claimed that he owned a
gold bar that was in a safe at the Belmont residence. Mother testified that
the gold bar was her property. She also testified that Roger made her sign
paperwork for the $900,000 loan on the Redwood City motel. “Mother also
was clear that she has great anger toward Roger for moving from Belmont
and abdicating his duty to care for her.”
As we explained ante, the Khatri I court rescinded various agreements
between the parties regarding the division of property, ordered the
partnership dissolved, and appointed a referee to oversee the dissolution. It
also entered judgment against Roger on his request for return of the gold bar;
“confirm[ed] Mother and the Khatri Family Trust as sole owners of
[the Belmont residence] and Mother’s continued control over the asset based
on the revocable nature of her trust”; and found that “Mother is the owner of
all the funds in the Standard Chartered Bank account as the surviving
spouse of Kantilal. Roger is ordered to account for the funds while in his
control and turn over all evidence of ownership of the account to Mother.”
26
The Khatri I trial court later adopted most of the referee’s
recommendations to divide the partnership income properties equally
between Roger and Vidya. In 2011, the Khatri I judgment was affirmed on
appeal. (Khatri v. Khatri, supra, A128718, A129175.)
On December 12, 2013, Roger filed his will contest in Khatri III. At
that time, Roger knew that the Khatri I case had divided the family assets;
had found against Roger and in favor of Vidya regarding ownership of the
gold bar, the Chartered Standard Bank account, and the Belmont residence;
and had determined that mother had “great anger toward Roger for moving
from Belmont and abdicating his duty to care for her.” Roger’s knowledge of
these determinations is sufficient to infer that he brought his undue influence
claims knowing that they lacked probable cause because the family assets
had already been divided in Khatri I and there was a determination that
Vidya had great anger toward Roger. Accordingly, Vidya’s decision to leave
her share of the family assets to Peter did not result in any “undue” benefit or
inequity. (Welf. & Inst. Code, § 15610.70.) In addition, on September 9,
2015, when Roger’s deposition was taken in Khatri III, Roger admitted that
the reason he pursued the will contest against Peter was because he was not
awarded the Belmont residence or the Chartered Standard Bank account in
Khatri I. Further, on August 27, 2015, Roger denied Peter’s requests to
admit the testamentary documents were not invalid based on undue
influence, which the Khatri III trial court later found warranted discovery
sanctions because Roger lacked a good faith basis to deny the requests. We
find that Peter has presented sufficient evidence to support a prima facie case
that Roger pursued the will contest with malice and for an improper purpose.
(Cole, supra, 206 Cal.App.4th at pp. 1113–1114.) Roger’s declaration stating
27
he has no personal malice toward Peter is insufficient to defeat Peter’s
prima facie evidence of malice as a matter of law.
B. Malice: Attorney Defendants
We also find that Peter has presented sufficient evidence to support a
prima facie case of malice as to the attorney defendants. The attorney
defendants have represented Roger since as early as 2003 when Khatri I was
filed. Thus, they too were aware of the Khatri I order and findings dividing
the family partnership and other assets and determining that Vidya had
great anger toward Roger. Nonetheless, they filed the will contest on Roger’s
behalf, asserting, among other claims, that Vidya’s testamentary documents
were invalid based upon undue influence. Further, on August 27, 2015,
attorney defendants denied Peter’s requests to admit the testamentary
documents were not invalid based on undue influence, which the Khatri III
trial court later found warranted discovery sanctions because Roger lacked a
good faith basis to deny the requests. Attorney defendants also represented
Roger at his deposition in December 2015, when he admitted that he pursued
the will contest because he was unhappy with the outcome of Khatri I.
Nonetheless, the attorney defendants continued to pursue Roger’s undue
influence claims through a 16-day trial in October and November 2016. We
find sufficient evidence to establish a prima facie case that based on the
attorney defendants’ decades-long representation of Roger, they knew of
Vidya’s desire to equally split the family assets; knew of the impact of
Khatri I, which dissolved the family partnership and gave Roger a 50-percent
share of the family’s income properties; and knew of Vidya’s animosity
toward Roger for shirking his cultural duty to care for her. Thus, as the
Khatri III court found, there was no evidence “ ‘that Vidya’s efforts to give
Peter a share of the family wealth equal to that already conferred on Roger
28
by giving Peter 100% of Vidya’s share of the estate constituted an undue
benefit.’ ”
The attorney defendants each submitted declarations in support of
their anti-SLAPP motion stating that they bore no malice toward Peter or his
wife, Kokila, and that none of their actions in the underlying will contest was
done with any malice. The attorney defendants’ declarations do not defeat
Peter’s prima facie case of malice as a matter of law. “Since parties rarely
admit improper motive, malice is usually proven by circumstantial evidence
and inferences drawn from the evidence.” (HMS Capital, Inc. v. Lawyers
Title Co. (2004) 118 Cal.App.4th 204, 218.) As discussed ante, malice may be
inferred from evidence of a knowing lack of probable cause. (Cole, supra, 206
Cal.App.4th at pp. 1113–1114.)
V. Kokila as Individual Plaintiff
Roger’s will contest named Peter individually and as a trustee of the
Pradeep K. Khatri and Kokila Pradeep Khatri 2007 Trust Agreement.
However, it only named Peter’s wife, Kokila, in her capacity as trustee.
Roger and the attorney defendants each argued in their anti-SLAPP motions
that because Kokila was not named in her individual capacity in the
underlying will contest she could not maintain a malicious prosecution action
in her individual capacity. The trial court granted Roger’s anti-SLAPP
motion as to Kokila only. However, it denied the attorney defendants’ motion
in its entirety. The record does not provide any basis for the trial court’s
inconsistent findings regarding whether Kokila can sue Roger for malicious
prosecution in her individual capacity. Neither Peter nor Kokila appealed
from the partial grant of Roger’s anti-SLAPP motion as to Kokila.
The attorney defendants argue that Kokila’s malicious prosecution
cause of action against them must be dismissed because Roger did not sue
29
Kokila individually. (Zamos, supra, 32 Cal.4th at pp. 965–966 [element of
malicious prosecution is a legal termination of underlying lawsuit in
plaintiff’s favor].) Peter responds that Kokila was injured in both her
individual and her trustee capacities and that defendants fail to cite
authority that Kokila cannot sue in her personal capacity. The attorney
defendants do not cite a case directly deciding whether a person who was
sued in an underlying lawsuit as a trustee only may later maintain a
malicious prosecution action in the person’s individual capacity. However,
they do cite Zamos for the general rule that an element of malicious
prosecution is a legal termination of the underlying lawsuit in plaintiff’s
favor. Peter also states that the issue can be remedied by amending the
complaint to allege that Kokila seeks relief in her capacity as a trustee.
We find that because an element of malicious prosecution is that there
was a legal termination of an underlying lawsuit in plaintiff’s favor, Kokila
has not shown a likelihood of prevailing on her malicious prosecution claim
as an individual. (Zamos, supra, 32 Cal.4th at pp. 965–966; Tukes v. Richard
(2022) 81 Cal.App.5th 1, 9–14 [affirms granting of anti-SLAPP motion filed in
malicious prosecution action because malicious prosecution plaintiff was not
a party to prior litigation and could not establish threshold requirement that
the underlying action was asserted against him].) Accordingly, we reverse
the trial court’s ruling on the attorney defendants’ anti-SLAPP motion only to
the limited extent that the motion should be granted as to the claim of Kokila
as an individual. We leave it to the parties and the trial court on remand to
determine whether the complaint may be amended to allege that Kokila is
suing in her capacity as a trustee.
30
DISPOSITION
The order granting in part and denying in part defendant Rajeshkumar
Kantilal Khatri’s special motion to strike is affirmed. The order denying
defendants Fox, Shjeflo, Hartley & Babu, LLP, Walter Shjeflo, Sean Riley,
and Michael Fox’s special motion to strike is reversed only to the limited
extent that the motion shall be granted as to the claim of plaintiff Kokila
Pradeep Khatri as an individual. Peter shall recover his costs on appeal.
Jackson, P. J.
WE CONCUR:
Simons, J.
Chou, J.
A164829/Khatri v. Fox, Shjeflo, Hartley & Babu, LLP
A164883/Khatri v. Khatri
31