Delaney v. Delaney CA2/6 ( 2023 )

Filed 12/6/23 Delaney v. Delaney CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
VIVIANE DELANEY, 2d Civ. No. B320436
(Cons. w/ B321820)
Plaintiff and Appellant, (Super. Ct. No. 21CV03600)
(Santa Barbara County)
v.
TIMOTHY DELANEY et al.,
Defendants and Respondents.
Viviane Delaney appeals the granting of special motions to
strike her complaint for malicious prosecution pursuant to the
anti-SLAPP statute (Code Civ. Proc.,1 § 425.16). Viviane2 sued
respondents—her ex-husband Timothy Delaney and his former
attorneys—for malicious prosecution after their prior action
against her for emotional distress was voluntarily dismissed with
1 Unless otherwise stated, all section references are to the
Code of Civil Procedure.
2 We refer to Viviane and Timothy Delaney by their first
names for clarity and convenience.
prejudice. Viviane also appeals an award of attorney fees to
Timothy as the prevailing party. (§ 425.16, subd. (c).)
We agree with Viviane that the trial court erred in granting
both anti-SLAPP motions on the ground that her anti-SLAPP
motion in the prior action was denied. We exercise our discretion
to decide the motions in the first instance and conclude that
Viviane has made the requisite prima facie showing of minimal
merit to support her malicious prosecution claim. Accordingly,
we shall reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, Viviane recorded a cellphone video of her and
Timothy’s five-year-old son suggesting that Timothy had sexually
abused him. She provided the video to health care providers who
are mandated reporters. Timothy was arrested that same day
but no charges were filed.
Following his arrest, Timothy retained attorney Paul A.
Pettine, III (Pettine) and Pettine’s law firm Wilson & Pettine,
LLP (collectively W&P) to represent him. On Timothy’s behalf,
W&P filed a petition for dissolution of his marriage to Viviane.
In May 2018, W&P also filed a complaint against Viviane for
emotional distress (the underlying action) alleging that she
“caused” the cell phone video “to be delivered” to mandated
reporters with the intent that the videos would be reported to
authorities. W&P further alleged that Viviane “knew that the
alleged acts of sexual abuse . . . did not occur and that the
allegations that [Timothy] sexually abused the Minor Child were
untrue, but [Viviane] intentionally pursued the course of action
in order to obtain custody of Minor Child and take the Minor
Child to Roseville, CA, where . . . [Viviane] had accepted
employment requiring her to move to Roseville.”
2
Viviane’s anti-SLAPP motion to strike the underlying
action was denied in February 2019 and the trial court overruled
her demurrer to the complaint. Shortly thereafter, Timothy
substituted in new counsel, William Poulis, to replace W&P.3
Timothy dismissed the underlying action with prejudice in
September 2019.
In September 2021, Viviane filed the instant action against
respondents alleging causes of action for malicious prosecution,
intentional and negligent infliction of emotional distress, and
abuse of process. The operative complaint alleged among other
things that respondents lacked probable cause to sue Viviane for
emotional distress, and did so with malice, because Timothy and
W&P had reviewed and had knowledge that video surveillance
from the family’s residence showed an interaction between
Timothy and the child that “closely aligns with the reported
statements made by the minor child to Viviane, which Viviane
had recorded and reported due to their troubling nature.”
In opposing respondents’ anti-SLAPP motions to strike her
complaint, Viviane requested judicial notice of various court
documents. One such document was the July 2021 trial brief
W&P filed in an action it brought against Timothy for the
payment of attorney fees (W&P’s trial brief). W&P’s trial brief,
which is signed by Pettine, states among other things that
“[w]hile WP believed that the child’s allegations were created by
[Viviane] in an effort to gain primary child custody and to
relocate the child to the Sacramento area, the home surveillance
video dispelled that theory . . . . [¶] Approximately ten (10) days
before [Viviane’s] car videoing of the minor child describing
3 Poulis, who was also named as a defendant in Viviane’s
claim for malicious prosecution, filed an answer to her complaint
and is not a party to this appeal.
3
molestation, the . . . home video surveillance system showed
[Timothy] performing an act eerily similar to the act the minor
child described in [Viviane’s] car videoing of the minor child. It
showed [Timothy] inappropriately licking his fingers and
rubbing/sticking a finger around/in the child’s exposed annus.”
W&P stated that when Timothy was confronted with the
video, he claimed he “had no memory of the act and could not
confirm that such acts had not happened before or since that
video.” W&P added that the video had not been seen by the child
custody evaluator, and the family law court was also unaware of
it when it issued its custody order. W&P suggested that Timothy
had only avoided criminal prosecution for sexually assaulting his
son because “no one else appeared to” have reviewed all of the
home video surveillance tapes—“not the police department, the
district attorney’s office, the Family Law Court appointed child
custody evaluator, and not [Viviane’s] family law attorney.”
Viviane also offered a November 5, 2021 declaration from
Brian Godlis that she filed in the family law proceedings. Godlis,
who owns a computer support company, was previously retained
by respondents in 2017 to review the home surveillance videos
recorded over a 25-day period of time before and after Viviane’s
cell phone video of the child’s report of abuse. Godlis’s
declaration refers to a spreadsheet “describing what was depicted
on each clip,” which includes a May 13, 2016 clip he described as
depicting an “odd” incident in which “dad wets his finger and
does something to son’s butt crack, has son’s arms pinned.”
Godlis highlighted this clip on the spreadsheet as “Important.”
Godlis also declares under penalty of perjury that in May 2017 he
gave copies of the video clip and spreadsheet—the latter of which
is attached to the declaration as Exhibit A—to both W&P and
Timothy.
4
Timothy objected to W&P’s trial brief as hearsay and
asserted that judicial notice cannot be taken “‘of the truth of
hearsay statements in decisions and court files.’ (Lockley v. Law
Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882.)” Timothy also objected to the spreadsheet
attached as Exhibit A to Godlis’s declaration on the same ground,
but did not object to the declaration itself. W&P objected to
Godlis’s declaration as inadmissible hearsay and as irrelevant
because it post-dates their representation of Timothy. W&P did
not raise any evidentiary objections to their July 2021 trial brief
in the attorney fees action.
The trial court granted Viviane’s request for judicial notice
of W&P’s trial brief and Godlis’s declaration and the attached
exhibit, but noted that judicial notice did not “extend to the truth
of factual statements set forth in the court records.” The trial
court overruled Viviane’s objections to Timothy’s declaration filed
in support of his motion, but it did not rule on any other
evidentiary objections.
In granting respondents’ motions to strike, the trial court
reasoned that the denial of Viviane’s anti-SLAPP motion in the
underlying action conclusively established that respondents had
probable cause to bring that action, such that her current claims
for malicious prosecution, emotional distress, and abuse of
process were barred by the adverse judgment rule. Because the
court concluded that Viviane’s claims were barred as a matter of
law by the prior ruling, it did not decide whether her proffered
evidence would otherwise be sufficient to defeat the anti-SLAPP
motions. The court subsequently granted Timothy $18,665.15 in
attorney fees as the prevailing party pursuant to section 425.16,
subdivision (c).
5
DISCUSSION
Viviane contends the trial court erred in granting
respondents’ anti-SLAPP motions to strike her cause of action for
malicious prosecution because she demonstrated a reasonable
probability of prevailing on the merits of that claim.4 We agree
the court erred in granting the motions based on the fact that
Viviane’s anti-SLAPP motion in the underlying action was
denied. Rather than remand for consideration of the remaining
issues the parties raised in the anti-SLAPP proceedings, and
because the standard of review is de novo, we exercise our
discretion to determine, in the first instance, whether the
motions should be granted on other grounds raised in the motions
and on appeal. (Area 55, LLC v. Nicholas & Tomasevic, LLP
(2021) 61 Cal.App.5th 136, 152 (Area 55).) We conclude they
should not.
General Legal Principles
“[S]ection 425.16 provides a procedure for the early
dismissal of what are commonly known as SLAPP suits (strategic
lawsuits against public participation)—litigation of a harassing
nature, brought to challenge the exercise of protected free speech
rights. The section is thus informally labeled the anti-SLAPP
statute.” (Fahlen v. Sutter Central Valley Hospitals (2014) 58
Cal.4th 655, 665, fn. 3.)
A special motion to strike under section 425.16 involves a
two-step process. The first step requires the defendant to make a
prima facie showing that the plaintiff's “cause of action . . .
aris[es] from” an act by the defendant “in furtherance of the
[defendant’s] right of petition or free speech . . . in connection
4 Viviane does not challenge the trial court’s order granting
the anti-SLAPP motions as to her other causes of action.
6
with a public issue.” (§ 425.16, subd. (b)(1).) If the defendant
satisfies the first step, the second step requires the plaintiff to
demonstrate a reasonable probability of prevailing on the merits.
(Cabral v. Martins (2009) 177 Cal.App.4th 471, 478.)
To defeat the motion, the plaintiff must show there is
admissible evidence that, if credited, would be sufficient to
sustain a favorable judgment. “Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that arises
from protected speech or petitioning and lacks even minimal
merit—is a SLAPP, subject to being stricken under the statute.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics omitted.)
“We review de novo the grant or denial of an anti-SLAPP
motion.” (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763.) “We
therefore engage in the same two-step process that the trial court
undertakes in assessing an anti-SLAPP motion.” (Billauer v.
Escobar-Eck (2023) 88 Cal.App.5th 953, 962.)
Viviane concedes the first step of the anti-SLAPP statute
has been met because the law makes clear that all claims for
malicious prosecution arise from constitutionally-protected
activity. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31
Cal.4th 728, 734-735; Lee v. Kim (2019) 41 Cal.App.5th 705, 719.)
The second step of the statute has been described “as a
‘summary-judgment-like procedure’” in which “[t]he court does
not weigh evidence or resolve conflicting factual claims. Its
inquiry is limited to whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient
to sustain a favorable judgment. It accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.
[Citation.] ‘[C]laims with the requisite minimal merit may
proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-
7
385; Divine Food & Catering, LLC v. Western Diocese of
Armenian Church of North America (2023) 92 Cal.App.5th 1048,
1063 (Divine Food & Catering).)
In opposing an anti-SLAPP motion, the plaintiff “‘may not
rely solely on its complaint, even if verified; instead, its proof
must be made upon competent admissible evidence.’”
(Sweetwater Union High School Dist. v. Gilbane Building Co.
(2019) 6 Cal.5th 931, 940 (Sweetwater).) The court must also
assess the opposing evidence. While the court may not weigh the
respective evidence, the defendant’s evidence will be considered if
it defeats the plaintiff’s allegations as a matter of law. (1-800
Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)
Viviane’s claim for malicious prosecution requires her to
satisfy three elements: “The underlying action must have been:
(i) initiated or maintained by, or at the direction of, the
defendant, and pursued to a legal termination in favor of the
malicious prosecution plaintiff; (ii) initiated or maintained
without probable cause; and (iii) initiated or maintained with
malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775
(Parrish).)
The Interim Adverse Judgment Rule
In granting respondents’ anti-SLAPP motions, the trial
court found Viviane had “no probability of prevailing” on her
malicious prosecution claim because the trial court in the
underlying action had already determined Timothy’s claims had
merit when it denied Viviane’s anti-SLAPP motion.5 The court
5 Although the trial court stated Viviane “provides no
argument that the denial of the anti-SLAPP motion in the
Underlying Action does not fall within [the interim adverse
judgment] rule,” it overruled her section 425.16, subdivision (b)(3)
8
applied the interim adverse judgment rule, which provides in
relevant part that a judgment or verdict in the plaintiff’s favor on
the merits in the underlying case “‘establishes probable cause to
bring the underlying action,’” and thus precludes a contrary
finding in a subsequent malicious prosecution action. (Parrish,
supra, 3 Cal.5th at p. 776.)
However, in 2005 the legislature amended section 425.16 to
eliminate application of the interim adverse judgment rule when
the prior adverse ruling was the denial of an anti-SLAPP motion.
The amendment was intended to abrogate the contrary holding in
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811.
(Assem. Bill No. 1158 (2005-2006 Reg. Sess.) § 1.) Section
425.16, subdivision (b)(3) provides: “If the court determines that
the plaintiff has established a probability that the plaintiff will
prevail on the claim, neither that determination nor the fact of
that determination shall be admissible in evidence at any later
stage of the case, or in any subsequent action, and no burden of
proof or degree of proof otherwise applicable shall be affected by
that determination in any later stage of the case or in any
subsequent proceeding.” The trial court thus erred in concluding
that the denial of Viviane’s anti-SLAPP motion in the underlying
action precluded her from demonstrating the requisite probability
of prevailing on her malicious prosecution claims.
We also reject W&P’s assertion that the trial court’s
overruling of Viviane’s demurrer in the underlying action was an
interim adverse judgment precluding a showing they lacked
probable cause to bring that action. W&P makes no effort to
demonstrate how that decision could be construed as a victory on
objection to Timothy’s request for judicial notice of that
determination. Viviane also raised the same objection in both her
opposition to the anti-SLAPP motions and in arguing the motion.
9
the merits. (Area 55, supra, 61 Cal.App.5th at p. 167 [the interim
adverse judgment rule requires a showing of an “interim victory
on the merits in the prior action”].) Because the court overruled
the demurrer as to the emotional distress claims in the
underlying action on the same grounds it denied Viviane’s anti-
SLAPP motions, that ruling does not qualify as a victory on the
merits of those claims.
To the extent respondents also rely on statements the
family law judge made at a June 2018 hearing regarding custody
of the Delaneys’ son, we reach the same conclusion. The family
law judge court stated: “It is this Court’s finding that no child
abuse, sexual or otherwise, has been perpetrated by either
parent” and that she believed the cell phone video Viviane made
“seemed very concocted.” Not only were these statements made
after respondents filed the underlying action, but they were not a
judgment or decision on the merits; on the contrary, the judge
ended the hearing by stating her discussion “was rather
amorphous and tentative.”
Statute Of Limitations
W&P also contend that Viviane’s claim against them for
malicious prosecution is barred by the applicable statute of
limitations. They assert that the claim is subject to the one-year
statute of limitations for an act or omission arising from an
attorney’s performance of professional services (§ 340.6, subd. (a))
rather than the two-year limitations period typically applied in
such actions (§ 335.1). Viviane counters that her claim is
governed by the two-year statute. Although W&P has the better
argument on this point, they fail to meet their burden of
establishing that the one-year statute of limitations was not
tolled as a matter of law, such that Viviane’s claim is untimely.
10
Only one published case has held that the two-year statute
of limitations applies to claims brought against attorneys for
malicious prosecution. (Roger Cleveland Golf Co., Inc. v. Krane &
Smith, APC (2014) 225 Cal.App.4th 660, 676-682, overruled on
other grounds by Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee).)
Our Supreme Court has more recently clarified that regardless of
how a claim is styled, section 340.6, subdivision (a) applies “when
the merits of the claim will necessarily depend on proof that an
attorney violated a professional obligation—that is, an obligation
the attorney has by virtue of being an attorney—in the course of
providing professional services.” (Lee, at p. 1229, italics omitted.)
The Court rejected the view that section 340.6 is limited only to
malpractice actions. (Ibid.)
Since then, courts have consistently applied the one-year
limitations to malicious prosecution claims asserted against
attorneys. (E.g., Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050,
1060-1061; Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 788,
793-795.) “We agree with Connelly and Garcia that under the
rule established by Lee, and based on section 340.6’s plain
language, the statute’s limitations period applies to malicious
prosecution claims against attorneys who represented a party in
the underlying litigation.” (Escamilla v. Vannucci (Oct. 23, 2023,
A166176) __ Cal.App.5th __ [2023 Cal.App.Lexis 878, *13].)
Accordingly, Viviane had to file her action “within one year
after [she] discover[ed], or through the use of reasonable diligence
should have discovered, the facts constituting the wrongful act or
omission, or four years from the date of the wrongful act or
omission, whichever occurs first.” (§ 340.6, subd. (a).) As the
statute of limitations is an affirmative defense, W&P bears the
burden of proving Viviane’s action is untimely. (Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005)
11
133 Cal.App.4th 658, 676; Favila v. Katten Muchin Rosenman
LLP (2010) 188 Cal.App.4th 189, 224.)
In determining whether Viviane’s evidence survives anti-
SLAPP scrutiny, she need only establish her claim has minimal
merit and in making that assessment we must draw every
legitimate favorable inference from her evidence. (Wilcox v.
Superior Court (1994) 27 Cal.App.4th 809, 828, disapproved on
another ground in Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68.) It is reasonable to conclude that
Viviane did not discover, and should not have discovered, that
W&P no longer believed Timothy’s contention that the sexual
abuse allegations were false until after she had access to W&P’s
trial brief which could not have been before it was filed on July 8,
2021. Viviane filed her action two months later.
W&P argues Viviane should have known earlier because
she had the home surveillance videos and she could have
reviewed them herself. This contention creates a factual dispute
but does not defeat Viviane’s claims as a matter of law. (Choi v.
Sagemark Consulting (2017) 18 Cal.App.5th 308, 323-324 [“‘The
resolution of a statute of limitations defense is typically a factual
question for the trier of fact’”].)
W&P also argue that Viviane’s claim accrued on September
9, 2019, when the underlying action was dismissed. Applying the
one-year limitations period, Viviane ordinarily would have had
until September 9, 2020 to file her malicious prosecution action.
Recognizing that this period was tolled for 178 days due to the
pandemic and Emergency Rule 9, Viviane would have had until
March 6, 2021 to file her action. She filed it approximately six
months later, on September 8, 2021.
We agree with Viviane that her claim accrued when she
“discover[ed], or through the use of reasonable diligence should
12
have discovered, the facts constituting the wrongful act or
omission.” (§ 340.6 subd. (a).) Cases which have criticized the
discovery rule’s application to malicious prosecution claims
predate Lee and do not discuss section 340.6 subdivision (a) and
are, therefore, not helpful. (See e.g., Royal Thrift & Loan Co. v.
County Escrow, Inc. (2004) 123 Cal.App.4th 24, 43; Gerbosi v.
Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
448.) Instead we determine that, like legal malpractice actions,
“section 340.6, subdivision (a) codified the delayed discovery rule”
and that it applies where, as here, a malicious prosecution action
is brought against an attorney. (Ovando v. County of Los Angeles
(2008) 159 Cal.App.4th 42, 66.)
Malicious Prosecution - Lack of Probable Cause
“The probable cause element of malicious prosecution ‘“calls
on the trial court to make an objective determination of the
‘reasonableness’ of the defendant’s conduct, i.e., to determine
whether, on the basis of the facts known to the defendant, the
institution of the prior action was legally tenable” . . . .
[Citation.]’ [Citation.] ‘A claim is unsupported by probable cause
only if “‘“any reasonable attorney would agree [that it is] totally
and completely without merit.”’” [Citations.] “This rather lenient
standard for bringing a civil action reflects ‘the important public
policy of avoiding the chilling of novel or debatable legal claims.’”
[Citation.] The standard safeguards the right of both attorneys
and their clients “‘“to present issues that are arguably correct,
even if it is extremely unlikely that they will win.”’” [Citation.]’
[Citation.]” (Divine Food & Catering, supra, 92 Cal.App.5th at
p. 1064.) “‘A litigant will lack probable cause for his action . . . if
he relies upon facts which he has no reasonable cause to believe
to be true.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 292.)
13
In W&P’s trial brief in the attorney fee action—to which
W&P did not object in the instant action—W&P admitted that
after reviewing the home surveillance videos they did not believe
Viviane had fabricated the sexual abuse allegations. W&P
attempts to undermine this admission with a letter Viviane wrote
to the family court judge stating she was “convinced that
[Timothy] will never do anything to harm [their son].” W&P
contend this letter supported their decision to file the underlying
action on Timothy’s behalf. In light of W&P’s admission,
however, Viviane’s apparent equivocation merely raises a factual
issue and does not refute Viviane’s evidence as a matter of law.
Therefore, Viviane has demonstrated the minimal merit
necessary to show that W&P lacked probable cause to sue her on
Timothy’s behalf for emotional distress.
Timothy notes that he objected to W&P’s brief in its
entirety as inadmissible hearsay.6 The court, however, did not
rule on that objection, but rather merely recognized that its grant
of judicial notice of the brief did not extend to the truth of any
matters asserted therein. Moreover, Timothy did not specify any
particular statements or explain why those statements would
6 For the first time on appeal, Timothy also claims that
W&P’s trial brief and the Godlis declaration—and in particular
their references to the home surveillance video clip that
purportedly shows Timothy committing an inappropriate act
similar to that described by the child in Viviane’s cell phone
video—cannot be deemed admissible without violating the
secondary evidence rule (Evid. Code, § 1521). We agree with
Viviane that Timothy forfeited this claim by not raising it below.
(People v. Lucas (2014) 60 Cal.4th 153, 264-265, disapproved on
another ground in People v. Romero and Self (2015) 62 Cal.4th 1,
53-54, fn. 19.)
14
necessarily be excluded at trial as inadmissible hearsay. For
example, W&P’s trial brief is replete with statements that would
likely be admissible against W&P at trial under Evidence Code
section 1220.7 Even if none of those statements could be
admitted against Timothy, W&P’s trial brief is also admissible for
the nonhearsay purpose of demonstrating that Timothy is aware
of their allegations against him. Timothy was the defendant in
the attorney fee action, and the brief’s proof of service reflects
service upon him through his attorney. Timothy, however,
offered nothing to dispute that he was aware of the brief and its
contents, and in particular the allegations relating to the home
surveillance video clip.
Moreover, Timothy did not object to the Godlis declaration;
he only objected to the spreadsheet attached to the declaration as
an exhibit. In Sweetwater, supra, 6 Cal.5th 931, our Supreme
Court addressed the form evidence must take in opposing an
anti-SLAPP motion, and whether such evidence would be
admissible at a later trial. The court rejected the assertion that
affidavits and declarations signed under penalty of perjury are
barred from consideration as inadmissible hearsay: “Although
affidavits and declarations constitute hearsay when offered for
7 Evidence Code section 1220 states in pertinent part that
“[e]vidence of a statement is not made inadmissible by the
hearsay rule when offered against the declarant in an action to
which he is a party in either his individual or representative
capacity, regardless of whether the statement was made in his
individual or representative capacity.” Although this “exception
to the hearsay rule is sometimes referred to as an exception for
admissions, the exception is not so limited. [Citation.] Instead,
the exception applies to all statements of the party against whom
they are offered.” (People v. Rodriguez (2014) 58 Cal.4th 587,
637.)
15
the truth of their content, section 425.16, subdivision (b)(2)
permits their consideration in ruling on a pretrial anti-SLAPP
motion. . . . [D]eclarations may be considered, not because they
satisfy some other hearsay exception, but because they qualify as
declarations or their equivalent under section 2015.5 and can be
considered under section 425.16.” (Id., at pp. 937, 942.)
The court in Sweetwater went on to conclude that “at the
second stage of an anti-SLAPP hearing, the court may consider
affidavits, declarations, and their equivalents if it is reasonably
possible the proffered evidence set out in those statements will be
admissible at trial. Conversely, if the evidence relied upon
cannot be admitted at trial, because it is categorically barred or
undisputed factual [assertions] show inadmissibility, the court
may not consider it in the face of an objection. If an evidentiary
objection is made, the plaintiff may attempt to cure the asserted
defect or demonstrate the defect is curable.” (Id. at p. 949, italics
omitted.)
Although the Goldis declaration was prepared for the
family court proceedings, Goldis signed the declaration under
penalty of perjury. The declaration thus meets the requirements
of section 2015.5 and can be considered in adjudicating the
motions to strike under section 425.16. Moreover, we conclude it
is reasonably possible that the evidence Timothy was aware of
what Godlis had observed on the video (or at least how Godlis
had described it) will be admissible at trial. Godlis declared
under penalty of perjury that he gave both Timothy and W&P
copies of the home video surveillance clip as well as the
spreadsheet describing the incident he observed. W&P’s trial
brief and the Godlis declaration thus both support an inference
that Timothy knew or should have known there was video
evidence (or at least an allegation that such evidence existed)
16
that tended to corroborate Viviane’s sexual abuse allegations
when he filed the underlying action and alleged Viviane “knew
that the alleged acts of sexual abuse . . . did not occur and that
the allegations that [Timothy] sexually abused the Minor Child
were untrue.”
Timothy notes that the second Godlis declaration—which
Timothy filed in reply to Viviane’s opposition to his anti-SLAPP
motion—also explains that while the spreadsheet did include the
described notation of the “odd” video clip, the notation “[did] not
necessarily reflect my opinion of the video” and that after he later
viewed the same video clip “approximately 100 times” he reached
the opinion that “Mr. Delaney was not sexually molesting his
son.” Godlis also stated that he expressed this opinion to
Timothy “at various times throughout 2017 and 2018.” This
second Godlis declaration merely creates an issue of fact and does
not, as a matter of law, defeat Viviane’s evidence. Accordingly,
Viviane has met the minimal merit standard of showing Timothy
lacked probable cause in bringing the underlying action.
Malicious Prosecution - Malice
“‘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 v. Law Offices of
Herbert Hafif, supra, 39 Cal.4th at p. 292.) “Since parties rarely
admit an improper motive, malice is usually proven by
17
circumstantial evidence and inferences drawn from the evidence.”
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th
204, 218.)
Viviane’s evidence indicates that W&P filed and prosecuted
an action alleging Viviane falsely accused Timothy of sexually
molesting their son even though W&P believed there was
evidence, the home surveillance video, that supported Viviane’s
allegations. (Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 881 [“evidence that the defendant attorney did not
subjectively believe that the action was tenable would clearly be
relevant to the question of malice”].) This evidence is sufficient to
demonstrate the minimal merit necessary to defeat W&P’s anti-
SLAPP motion on the issue of malice. W&P countered with a
declaration from Pettine stating that he did not have any malice
toward Viviane in filing and prosecuting the underlying action
while representing Timothy. Once again, this evidence creates a
factual issue but does not defeat Viviene’s evidence as a matter of
law.
Viviane has also made a prima facie showing that Timothy
filed the underlying action aware that the home surveillance
video showed him engaging in conduct similar to what his son
described in the video that Viviane recorded on her cell phone.
Timothy relies on Godlis’s second declaration to refute any
malice, but this evidence merely creates a disputed factual issue
and does not defeat Viviane’s claim as a matter of law.
The underlying action was filed and prosecuted at the same
time Timothy and Viviane were engaged in a custody dispute in
the family law case regarding their son. Viviane contends it is
not a coincidence that the underlying action was filed only a few
days before trial in the family law case was scheduled to begin.
In light of evidence supporting the lack of probable cause, it is
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reasonable to infer respondents brought the action for purposes
unrelated to the merits and instead their intent was to force
Viviane to defend herself, incur litigation costs and to gain some
advantage in the family law proceeding. We find Viviane made a
prima facie showing sufficient to establish malice for the limited
purpose of defeating both motions to strike.
Malicious Prosecution - Favorable Termination
“A voluntary dismissal is presumed to be a favorable
termination on the merits, unless otherwise proved to a jury.”
(Sycamore Ridge Apartments LLC v. Naumann (2007) 157
Cal.App.4th 1385, 1400.) “A voluntary dismissal of the prior suit
by the plaintiff—not resulting from a settlement—will, in
general, constitute a favorable termination. [Citation.] ‘[A]
voluntary dismissal, even one without prejudice, may be a
favorable termination which will support an action for malicious
prosecution. [Citation.] “In most cases, a voluntary unilateral
dismissal is considered a termination in favor of the defendant in
the underlying action . . . .” [Citations.]’ [Citation.] In many
instances the dismissal ‘may be an implicit concession that the
dismissing party cannot maintain the action and may constitute
a decision on the merits.’ [Citation.] But ‘“[i]t is not enough . . .
merely to show that the proceeding was dismissed.” [Citation.]
The reasons for the dismissal of the action must be examined to
determine whether the termination reflected on the merits.
[Citations.]’” (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 205.)
Timothy filed a declaration with his motion to strike
explaining that he dismissed the underlying because he “was
concerned about the impact such a trial would have on our son.
. . . I was also concerned about the costs associated with the trial
and decided the best course of action was to dismiss the case.”
Timothy’s explanation once again creates an issue of fact and
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does not defeat the presumption in favor of Viviane as a matter of
law, especially in light of her prima facie showing that he and
W&P lacked probable cause and acted with malice. “Where, as
here, the previously suing parties voluntarily dismissed the
malicious prosecution plaintiff without prejudice, the dismissal is
presumed to reflect the plaintiff's innocence. . . . This
presumption is rebuttable, but whether it has been rebutted is a
question of fact.” (Gruber v. Gruber (2020) 48 Cal.App.5th 529,
538.)8
Attorney - Client Privilege
W&P contend both below and on appeal that Viviane’s
claim against them for malicious prosecution should be dismissed
because they “cannot fully explain the representation of their
client without a waiver [of the attorney-client privilege] and
would be forced either to defend this lawsuit with the equivalent
of having one hand tied behind their backs or by disclosing the
inviolate confidence of their client.”
Whether W&P will be hampered in defending against
Viviane’s claims remains to be seen. “Further, although a case
may be dismissed on the ground that the attorney-client privilege
prevents an attorney-defendant from presenting an adequate
defense, the trial court must first conduct an evidentiary hearing
to ‘determine whether it is able to effectively use “ad hoc
measures from [its] equitable arsenal,” including techniques such
as “sealing and protective orders, limited admissibility of
evidence, orders restricting the use of testimony in successive
proceedings, and, where appropriate, in camera proceedings,” so
8 We deny Viviane’s request for judicial notice of a juvenile
custody order filed after the underlying action was dismissed
because our consideration of that document is not necessary to
our resolution the appeal.
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as to permit the action to proceed.’” (Rickley v. Goodfriend (2013)
212 Cal.App.4th 1136, 1165-1166 citing Dietz v. Meisenheimer &
Herron (2009) 177 Cal.App.4th 771, 793; see also General
Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190
[“[W]hether the privilege serves as a bar to the plaintiff’s
recovery will be litigated and determined in the context of
motions for protective orders or to compel further discovery
responses, as well as at the time of a motion for summary
judgment”].)
We decline to find at this early stage of the case that the
attorney-client privilege will hamper W&P’s defense such that
dismissal is required.
Attorney Fees
Because we are reversing the order granting respondents Anti-
SLAPP motions as to Viviane’s claims for malicious prosecution,
the order awarding Timothy attorney fees as the prevailing party
must also be reversed. (Cole v. Patricia A. Meyer & Associates,
APC (2012) 206 Cal.App.4th 1095, 1123.) “On remand, the trial
court must exercise its discretion in determining the appropriate
amount of fees and costs, if any, to which these defendants are
entitled.” (Ibid.)
DISPOSITION
The order granting respondents’ respective anti-SLAPP
motions (§ 425.16) as to appellant’s cause of action against them
for malicious prosecution is vacated and the judgment related
thereto is reversed. On remand following issuance of the
remittitur, the superior court is directed to enter an order
denying respondents’ special motions to strike the cause of action
for malicious prosecution in appellant’s first amended complaint.
The order granting Timothy $18,765.15 in attorney fees
and costs as the prevailing party under section 425.16,
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subdivision (c) is vacated. On remand, the superior court is
directed to conduct further proceedings consistent with this
decision and determine the appropriate amount of fees and costs,
if any, to which Timothy is entitled. Appellant shall recover her
costs on appeal.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Rothschild & Alwill, Kristi D. Rothschild; Benedon &
Serlin, Gerald M. Serlin and Wendy S. Albers, for Plaintiff and
Appellant.
Thyne Taylor Fox Howard, Larry L. Taylor, for Defendant
and Respondent Timothy Delaney.
Klinedinst, Heather L. Rosing & David M. Majchrzak, for
Defendants and Respondents Wilson & Pettine, LLP and Paul A.
Pettine, III.
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