Divine Food and Catering v. Western Diocese of the Armenian etc.

Filed 6/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DIVINE FOOD AND CATERING, B321087, B321605
LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 21STCV38713)
v.
WESTERN DIOCESE OF THE
ARMENIAN CHURCH OF NORTH
AMERICA et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Curtis A. Kin, Judge. Reversed.
Reed Smith, Raymond A. Cardozo; SYLG, Susan C. Yu,
Eric M. Lode and Farah Tabibkhoei for Plaintiff and Appellant.
Buchalter, Harry W.R. Chamberlain II, Robert M. Dato,
Michael Muse-Fisher; Kabateck, Brian S. Kabateck and Shant A.
Karnikian for Defendants and Respondents.
____________________________
Divine Food and Catering, LLC (Divine) appeals from the
dismissal of its malicious prosecution complaint against
defendants and respondents the Western Diocese of the
Armenian Church of North America (the Diocese), St. John
Armenian Church (St. John), Archpriest Manoug Markarian
(Archpriest Manoug)1, and Harout Markarian (collectively,
defendants). The trial court dismissed the complaint after
granting defendants’ special motion to strike under Code of Civil
Procedure2 section 425.16, the anti-SLAPP statute.
Divine was a commercial tenant of St. John’s banquet hall.
In 2018, St. John and the Diocese (the church entities) filed an
unlawful detainer action seeking to evict Divine based on a
purported oral month-to-month lease. Divine asserted as a
defense a superseding written lease, the existence of which the
church entities denied. Following trial, the unlawful detainer
court found the written lease was valid and granted judgment for
Divine.
Divine then filed its malicious prosecution complaint,
alleging defendants brought the unlawful detainer action in order
to extort money from Petros Taglyan, the father of Divine’s
owner. Divine alleged defendants had no probable cause to bring
1
Respondents refer to Manoug Markarian as Archpriest
Manoug in their briefing, and we shall do the same.
2Unspecified statutory citations are to the Code of Civil
Procedure.
2
the unlawful detainer action because they knew there was a valid
written lease, but attempted to conceal its existence.
Defendants filed an anti-SLAPP motion. Defendants relied
on the interim adverse judgment rule, which provides that
certain determinations by the trial court in the underlying action
establish as a matter of law probable cause to bring that action,
thus foreclosing a malicious prosecution suit. Defendants
contended that the unlawful detainer court’s statements early in
the trial that the church entities had made their “prima facie”
case for an oral month-to-month lease triggered the interim
adverse judgment rule. The trial court agreed and granted the
anti-SLAPP motion.
We hold that the triggers for the interim adverse judgment
rule are limited to actual judgments and rulings on dispositive
motions. The trial court therefore erred by applying the rule
based on the unlawful detainer court’s sua sponte comments
during trial. Alternatively, Divine has made an adequate
showing for anti-SLAPP purposes that the unlawful detainer
court’s comments were the product of fraud or perjury, which
precludes application of the interim adverse judgment rule.
Defendants have shown no other valid basis to support
their anti-SLAPP motion. Accordingly, we reverse.
BACKGROUND
St. John is a parish church of the Diocese, a branch of the
Armenian Apostolic Church. The head priest of St. John is
Archpriest Manoug.
3
In 2003, parishioner Petros Taglyan3 either gave or loaned
the Diocese and St. John $300,000 so the Diocese and St. John
could lease a property adjacent to St. John. Petros also financed
the construction of a banquet hall on the newly leased property
and agreed to operate and maintain the hall. In 2009, Petros
turned over operation of the hall to Divine, a catering business
run by Petros’s son Gary.
1. Unlawful detainer complaint
On October 22, 2018, the church entities filed a verified
form unlawful detainer complaint seeking to evict Divine and
Petros from the banquet hall.4 The complaint characterized
Divine’s tenancy as subject to an oral, month-to-month lease
entered into by Petros in October 2007, with a monthly rent of
$6,300. The complaint further alleged that, pursuant to that
month-to-month arrangement, the church entities had served
Divine and Petros with a 30-day notice to quit. The complaint
was verified by Harout Markarian, who was the executive
director of the Diocese and Archpriest Manoug’s son.
Divine and Petros filed an answer denying all allegations.
Among other affirmative defenses, Divine and Petros alleged that
a written lease dated May 1, 2009 entitled Divine to possession of
the banquet hall until 2039, and superseded any purported oral
lease.
3Because this case involves both Petros Taglyan and his
son Gary Taglyan, for clarity we refer to them by their first
names. No disrespect is intended.
4 Although Petros was never dismissed from the unlawful
detainer action, he testified that he was not a tenant and
disclaimed any possessory interest in the banquet hall.
4
In support of their answer, Divine and Petros produced a
document purporting to be a written lease between St. John and
Divine dated May 1, 2009. The lease provided for a monthly rent
of $15,000, and extended to April 2039. The document appeared
to bear Archpriest Manoug’s signature.
Divine and Petros also produced a document purporting to
be an earlier written lease between St. John and Divine dated
October 1, 2007, and extending through October 1, 2021, for a
monthly rent of $4,500. This document also appeared to bear
Archpriest Manoug’s signature and his initials on each page.5
Divine and Petros served requests for admission on the
church entities, asking them to admit, among other things, that
St. John had entered into the 2009 lease with Divine, that
Archpriest Manoug had signed the lease on St. John’s behalf, and
that the 2009 and 2007 leases produced by Divine and Petros
were genuine. The church entities uniformly denied each of these
requests.
2. Unlawful detainer trial
The unlawful detainer action proceeded to trial. The
unlawful detainer court6 announced at the outset it would
5 Evidence at trial indicated the lease dated 2007 actually
was executed in 2014, but was backdated to the opening of the
banquet hall in October 2007. Similarly, the lease dated 2009
was executed in 2015, but backdated to 2009 when Divine took
over operation of the hall.
6 In this opinion we refer to the court that presided over
the unlawful detainer action as the “unlawful detainer court,”
and the court that presided over the malicious prosecution action
and granted the anti-SLAPP motion as the “trial court.”
5
“bifurcate” the proceedings, first deciding “whether or not [the
church entities] had a right to actually serve a 30-day notice or
not.” The court referred to this first issue as “phase one.”7 If the
church entities prevailed on that issue, the court would then
“hear other issues of possible defenses, retaliation, extortion,
whatever you want . . . and then I’ll hear the issue of damages.”
The church entities first called Petros as a witness under
Evidence Code section 776.8 After questioning Petros over two
days, the church entities’ counsel indicated his examination was
complete. As counsel for Divine and Petros was about to begin
her questioning, the unlawful detainer court interjected that the
church entities had not “met their prima facie case yet,” meaning
they had not established through Petros the existence of the oral
month-to-month lease upon which the unlawful detainer action
was based.
The church entities’ counsel proceeded to ask additional
questions of Petros regarding the terms of his agreement with
St. John when he first began operating the banquet hall in 2007,
and the unlawful detainer court asked Petros a number of
questions as well.
After hearing Petros’s additional testimony, the unlawful
detainer court summarized it, stating, “[Petros is] saying he had
an agreement with the church . . . that he would loan them . . .
$6,300 at minimum every month; . . . and that money would be
used to pay the rent on the actual lease. [¶] . . . I guess one way
7 The trial court did not refer to the first issue as “phase
one” when it announced its intent to bifurcate, but used that term
in later colloquies.
8 Evidence Code section 776 allows a party to call an
adverse party as a witness. (Evid. Code, § 776, subd. (a).)
6
you could look at it—because he’s paying it with his funds out of
the church funds . . . to the actual landlord, [is that] he’s kind of a
subtenant, and he’s taking on the responsibilities of the rent.” As
further indication that Petros was akin to a subtenant in 2007,
the court noted that Petros was “the one who’s occupying the
premises, . . . [o]r building it, and . . . using it.”
Petros disputed the unlawful detainer court’s
characterization of the arrangement, stating he was not a tenant
or subtenant. The unlawful detainer court disagreed, stating the
church entities “probably did make that prima facie case” of the
original month-to-month agreement. The court continued, “So
unless [Divine and Petros] show that . . . there’s a subsequent
agreement that supersedes [the oral agreement], then [the
church entities] probably do have a right to evict them on a
30-day notice.”
Counsel for Divine and Petros then proceeded to examine
Petros. Amidst that examination, the court and counsel had a
colloquy regarding, inter alia, the significance of a loan
agreement between St. John and Petros and how it affected any
purported oral tenancy. The court, echoing its earlier
statements, stated, “I’m satisfied that initially, in my opinion,
[Petros] had some sort of . . . leasehold interest in the property,
either oral and/or written or de facto, and that he maintained and
controlled the property. He built it. He started operating it. I
mean, just look at reality.”
The court further stated, “I’m satisfied at least [the church
entities’] prima facie case has been established. . . . [I]t’s going to
come down to whether [Divine and Petros] can convince me that
the written agreement was signed and it was authorized or
needed to be authorized or there was detriment or any of the
7
legal issues.” After further colloquy, the court stated, “I’ve
already made that tentative finding. [The church entities]
established some sort of tenancy with [Petros] . . . and . . . he had
maintained control and possession of the premises and could do
certain things under certain conditions. I’m satisfied that it
started with him.” The court told counsel for Divine and Petros,
“Where you need to come is show me how that was subsequently
changed . . . by the written lease.”
Counsel for Divine and Petros completed her examination
of Petros and the church entities’ counsel conducted his redirect
examination. The church entities then called an expert who
opined regarding the authenticity of Archpriest Manoug’s
signature on the written leases.
At this point in the trial, although the church entities had
yet to call all their witnesses, the unlawful detainer court allowed
Divine and Petros to call several witnesses out of order for
scheduling reasons. Those witnesses testified in relevant part as
follows. A consultant testified he had used the 2007 written lease
in applying for a liquor license for Divine in 2014 or 2015, and
authenticated a copy of that lease from his files. A former Divine
employee testified that in 2016 she needed the 2009 lease as part
of her work visa application, and Archpriest Manoug personally
handed her a copy. The paralegal that prepared the former
Divine employee’s visa application testified he received a scanned
copy of the 2009 lease via e-mail in 2016, and authenticated the
e-mail chain containing that copy. A forensic document examiner
opined it was “highly probable” the signatures on the 2007 and
2009 leases were Archpriest Manoug’s.
The church entities then called Gary Taglyan. During
cross-examination by counsel for Divine and Petros, Gary
8
testified he witnessed Archpriest Manoug sign the 2007 lease and
initial every page.
Following Gary’s testimony, the unlawful detainer court
stated, “Beyond a reasonable doubt, I’m convinced that
[Archpriest Manoug] signed [the 2009 lease] and it was created
before 2016.” The court stated the remaining issue was whether
Archpriest Manoug had the authority to sign the lease on behalf
of the church entities. The court stated if Archpriest Manoug
wished to testify that he never signed the leases, the court would
“listen to him with an open mind. But I think the evidence is
pretty clear . . . .”
On the next day of trial, the church entities called
Archpriest Manoug to testify.9 Archpriest Manoug denied
signing either the 2007 lease or 2009 lease.
After the unlawful detainer court rejected the church
entities’ final witness, a church secretary, under Evidence Code
section 352,10 the church entities rested “as to phase 1 only.”
As soon as the church entities rested, the trial court stated
it would entertain a motion for judgment under section 631.8.
Divine and Petros made the motion. The trial court summarized
the issues: first, whether there was a written lease signed by
Archpriest Manoug; second, whether that written lease was
9 The church entities first called Harout Markarian. His
testimony is not relevant to the issues on appeal and we do not
summarize it.
10 The unlawful detainer court accepted an offer of proof
that the secretary would testify that during the period when the
former Divine employee claimed to have obtained a copy of the
2009 lease from Archpriest Manoug, the church’s office records
were boxed up.
9
enforceable, either because Archpriest Manoug had actual or
ostensible authority to sign it, or because principles of equity
precluded the church entities from challenging the validity of the
lease.
After hearing argument, the trial court granted the motion
for judgment and issued an oral statement of decision. The court
found Archpriest Manoug “signed both leases at issue. I find that
beyond a reasonable doubt. [¶] It’s very unfortunate that
[Archpriest Manoug] chose to testify. Hopefully, [he] just forgot.
There’s no doubt in my mind that [he] signed it. The evidence is
overwhelming.” In support of this conclusion, the court cited the
testimony of the liquor license consultant, the former Divine
employee, the paralegal, and the handwriting expert called by
Divine and Petros. The court found the church entities’
handwriting expert unqualified, stating if Divine and Petros “had
objected, I wouldn’t have allowed him to even testify.”
The trial court stated it “didn’t believe [Archpriest Manoug]
at all. I did not find him to be credible at all. . . . [¶] And I think
he’s just covering himself because he realizes, if he was supposed
to have done something, maybe he needs to cover his butt at this
point.”
The trial court further found Archpriest Manoug had actual
and, in the alternative, ostensible authority to enter into the 2009
lease. Assuming arguendo he did not, the court found the church
entities had waived or were estopped from asserting any such
argument, given they had “actual or constructive notice that
[Archpriest Manoug] did sign these leases,” and had not objected
to Divine’s presence in the banquet hall until 2018.
The trial court therefore ruled the 2009 lease was the
operative lease, and the church entities therefore could not evict
10
Divine based on a 30-day notice to quit. The court entered
judgment for Divine and Petros.
Divine and Petros moved for cost of proof sanctions based
on the church entities’ denials of the authenticity of the 2007 and
2009 leases. The trial court granted sanctions of $43,400 in
attorney fees and expert costs. The court found sanctions were
appropriate “because, in my opinion, the weight of the evidence,
overwhelming weight of the evidence, is that [Archpriest
Manoug] signed [the lease], and he knew it, and he was covering
it up.”
We affirmed the judgment and the sanctions order in an
unpublished opinion. (St. John Armenian Church v. Divine Food
and Catering, LLC (Jul. 30, 2021, B298437) [nonpub. opn.].)
3. Malicious prosecution action and anti-SLAPP motion
On October 20, 2021, Divine filed a complaint against
defendants for malicious prosecution and conspiracy to commit
malicious prosecution. The complaint alleged that in spring
2018, Archpriest Manoug demanded Petros pay him $30,000 per
month “for his personal expenses,” because Petros “owe[d]” him
for making Petros “rich” by allowing Petros to build and run the
banquet hall. The complaint alleged defendants also demanded
Petros fund construction of a new church, and threatened to lock
him out of the banquet hall if he did not pay them $5 million.
Divine alleged defendants brought the unlawful detainer
action because Petros “refused to comply with their extortionate
demands.” Divine alleged the unlawful detainer action lacked
probable cause because “Archpriest Manoug signed the written
leases and knew he signed them,” yet defendants “deliberately
conceal[ed] from the [unlawful detainer court] the existence of the
operative 2009 Lease and the superseded 2007 Lease.” “Knowing
11
they had no legitimate rights, Defendants brought, maintained
and continued to maintain the [unlawful detainer] Action based
on repeated lies under oath, in an attempt to unjustly deprive
Divine Catering of it[s] rights under the operative 2009 Lease.”
Defendants filed an anti-SLAPP motion. Defendants
argued the filing of the unlawful detainer action was protected
conduct under the anti-SLAPP statute. They further argued
Divine could not show their unlawful detainer action lacked
probable cause because the unlawful detainer court had found
the church entities had “met their prima facie case . . . and
proved an oral or de facto tenancy was created in or around
2007.” Thus, “the Church Entities had a tenable claim against
Divine and had a reasonable basis to pursue the [unlawful
detainer] action.” Defendants noted that although the unlawful
detainer court had concluded the church entities could not evict
Divine based on the oral lease, the church entities might have
another basis to evict, such as a material breach of the 2009
lease: “[W]hile Divine may have won the ‘first round,’ the result
may be different on the ‘second round.’ ”
Defendants also argued Divine could not satisfy the malice
element of malicious prosecution. Defendants noted again the
unlawful detainer court’s finding the church entities had “met
their prima facie case,” which, defendants contended,
“conclusively establishes the Church Entities were not trying to
‘deliberately misuse the legal system’ or acted with ‘ill will.’ ”
“Divine has not (and cannot) prove the Church Defendants had
any ulterior motive to bring the [unlawful detainer] action, other
than to recover possession of their property.”
Divine argued in opposition that because its malicious
prosecution complaint was based on illegal acts of extortion and
12
perjury, the complaint did not allege activity protected under the
anti-SLAPP statute. Divine further argued the unlawful
detainer court’s finding that the church entities had met their
prima facie burden was based on false information, namely the
church entities’ contention there were no written leases, and
therefore that finding could not establish probable cause. To
demonstrate the unlawful detainer action was brought with
malice, Divine pointed to defendants’ continued denials of the
validity of the written leases despite evidence to the contrary,
and a declaration from Petros describing defendants’ demands for
money, as alleged in the malicious prosecution complaint.
In reply, defendants argued Divine had failed to
demonstrate the sort of illegality that would render the unlawful
detainer action unprotected under the anti-SLAPP statute. As
for probable cause, defendants invoked the “ ‘interim adverse
judgment’ rule,” which they contended supported their argument
that the unlawful detainer court’s finding that the church entities
had satisfied their prima facie burden conclusively established
probable cause. Defendants disputed Divine’s argument that the
unlawful detainer court’s finding was based on false information,
pointing out that the court made that finding solely based on
Petros’s testimony, before Archpriest Manoug or anyone
associated with the church entities had testified.
Divine filed a surreply arguing defendants waived their
argument under the interim adverse judgment rule by raising it
for the first time in reply. Divine further argued the rule did not
apply because the prima facie finding was based on fraud or
perjury, and the unlawful detainer court’s remarks concerning
the prima facie finding was not a ruling following an adversary
hearing.
13
4. Ruling on anti-SLAPP motion
After hearing argument, the trial court granted the anti-
SLAPP motion. The court found the filing of the unlawful
detainer action was not illegal as a matter of law, and therefore it
fell within the protections of the anti-SLAPP statute. The court
further agreed with defendants that the unlawful detainer court’s
finding that the church entities met their prima facie burden
triggered the interim adverse judgment rule, thus conclusively
establishing probable cause for the unlawful detainer action.11
The trial court rejected Divine’s argument that the prima
facie finding was based on fraud or perjury, because the unlawful
detainer court’s “decision not to credit the testimony of Manoug
Markarian after weighing all the evidence at trial is not the same
as a finding of perjury or fraud.” Also, the unlawful detainer
court made its prima facie finding “before hearing any
purportedly perjurious testimony from [the church entities’]
witnesses.” “Thus, any purported perjury or fraud could not have
been the basis for that finding by the [unlawful detainer] court.”
The trial court further disagreed with Divine that the
prima facie finding did not constitute an interim adverse
judgment. The court stated, “[The unlawful detainer] court made
a clear finding the Diocese and Church adduced sufficient
evidence of an oral agreement for a tenancy to support their
claim in the [unlawful detainer] Action. [Citation.] That finding
was made on the merits after Petros Taglyan was examined by
11 Because Divine had filed a surreply, the trial court
declined to find that defendants had waived their argument
under the interim adverse judgment rule by raising it for the first
time in their reply.
14
counsel for the Diocese and Church, as well as counsel for Divine
Catering. [Citation.] Accordingly, the [unlawful detainer] court
had a ‘full adversary hearing’ with ‘the benefit of a presentation
by both sides on the merits of the underlying action’ before
finding that the Diocese and Church established their so-called
‘prima facie case.’ [Citation.] Such a finding is sufficient under
the circumstances to warrant application of the interim adverse
judgment rule.”
Having concluded Divine could not show a lack of probable
cause, the trial court did not reach the question of whether
Divine could prevail on the malice element of malicious
prosecution. The court further found Divine’s inability to prevail
on the malicious prosecution cause of action doomed the cause of
action for conspiracy to commit malicious prosecution.
The trial court dismissed Divine’s complaint. Divine timely
appealed.12
DISCUSSION
A. The Anti-SLAPP statute
“[T]he anti-SLAPP 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.
[Citations.] To that end, the statute authorizes a special motion
to strike a claim ‘arising from any act of that person in
furtherance of the person’s right of petition or free speech under
12 Divine filed two notices of appeal, one from the minute
order granting the anti-SLAPP motion and one from the
dismissal order. We consolidated the appeals for briefing,
argument, and decision.
15
the United States Constitution or the California Constitution in
connection with a public issue.’ (§ 425.16, subd. (b)(1).)” (Wilson
v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884.)
“Acts protected under the statute include, inter alia, ‘any written
or oral statement or writing made before a . . . judicial
proceeding’ and ‘any written or oral statement or writing made in
connection with an issue under consideration or review by a . . .
judicial body . . . .’ [Citation.]” (Finato v. Keith A. Fink &
Associates (2021) 68 Cal.App.5th 136, 147, quoting § 425.16,
subd. (e)(1), (2).)
“A court evaluates an anti-SLAPP motion in two steps.
‘Initially, the moving defendant bears the burden of establishing
that the challenged allegations or claims “aris[e] from” protected
activity in which the defendant has engaged. [Citations.] If the
defendant carries its burden, the plaintiff must then demonstrate
its claims have at least “minimal merit.” ’ [Citation.] If the
plaintiff fails to meet that burden, the court will strike the
claim.” (Wilson v. Cable News Network, supra, 7 Cal.5th at
p. 884.)
The Supreme Court has described the second step of anti-
SLAPP analysis “as a ‘summary-judgment-like procedure,’ ” in
which “[t]he court does not weigh evidence or resolve 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, 384–385.)
16
“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.)
B. Divine Has Demonstrated “Minimal Merit” Sufficient
To Satisfy the Second Step of Anti-SLAPP Analysis
As they did below, the parties disagree whether Divine’s
malicious prosecution complaint arises from conduct protected by
the anti-SLAPP statute, the first step of our analysis.
Defendants argue their unlawful detainer complaint was by
definition a “writing made before a . . . judicial proceeding”
(§ 425.16, subd. (e)(1)), and therefore protected. Divine argues its
malicious prosecution claim arises from defendants’ false denials
of the written leases, which Divine characterizes as perjury not
entitled to anti-SLAPP protection. We need not resolve this
dispute. Assuming arguendo Divine’s complaint implicates
protected conduct, we conclude Divine nonetheless has
demonstrated its complaint has the minimal merit required to
proceed, thus satisfying the second step of anti-SLAPP analysis.
The tort of malicious prosecution consists of 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).) Defendants do not
dispute that Divine, by prevailing in the unlawful detainer
action, has established the first element. We therefore limit our
discussion to the second and third elements, lack of probable
17
cause and malice, and conclude Divine has made a sufficient
showing as to each to overcome defendants’ anti-SLAPP motion.
1. Divine has made a sufficient showing for anti-
SLAPP purposes to establish lack of probable
cause
a. Applicable law
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.]” (Parrish, supra, 3 Cal.5th at p. 776.) “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.]” (Ibid.)
In the instant case, the trial court relied on the interim
adverse judgment rule to conclude Divine could not demonstrate
the church entities’ unlawful detainer action lacked probable
cause. Under that rule, “a trial court judgment or verdict in favor
of the plaintiff or prosecutor in the underlying case, unless
obtained by means of fraud or perjury, establishes probable cause
to bring the underlying action, even though the judgment or
verdict is overturned on appeal or by later ruling of the trial
court.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
18811, 817; accord, Parrish, supra, 3 Cal.5th at p. 776.) “This rule
reflects a recognition that ‘[c]laims that have succeeded at a
hearing on the merits, even if that result is subsequently
reversed by the trial or appellate court, are not so lacking in
potential merit that a reasonable attorney or litigant would
necessarily have recognized their frivolousness.’ [Citation.]”
(Parrish, at p. 776.)
Despite its name, the interim adverse judgment rule is
triggered not only by final judgments after trial, but also “ ‘denial
of defense summary judgment motions, directed verdict motions,
and similar efforts at pretrial termination of the underlying
case’ ” (Parrish, supra, 3 Cal.5th at pp. 776–777), even if the
plaintiff ultimately loses the case. (See id. at p. 771 [denial of
defense summary judgment motion triggered interim adverse
judgment rule although defendants prevailed at trial].) “[T]hese
events constitute proof that the prior lawsuit was not ‘totally and
completely without merit’ because,” for example, “a judge found
there to be ‘triable issue[s] . . . [of] material fact’ for a jury to
resolve [citations], or a judge found there to be ‘ “evidence of
sufficient substantiality to support a verdict” ’ in the plaintiff’s
favor [citations].” (Hart v. Darwish (2017) 12 Cal.App.5th 218,
226–227 (Hart).)
The interim adverse judgment rule does not apply if the
interim judgment or ruling “rest[s] ‘solely on technical or
procedural grounds,’ ” rather than reaching the merits of the
case. (Parrish, supra, 3 Cal.5th at p. 778.) “And even where a
ruling is based on the court’s evaluation of the merits of the
claim, the ruling does not establish the existence of probable
cause if the ruling is ‘shown to have been obtained by fraud or
perjury.’ [Citation.]” (Ibid.)
19
b. The unlawful detainer court’s comments
regarding the church entities’ prima facie
showing did not constitute an “interim
adverse judgment”
Here, the trial court found that the unlawful detainer
court’s statements that the church entities had satisfied their
prima facie burden to establish the existence of an oral lease
constituted a ruling sufficient to trigger the interim adverse
judgment rule. The trial court cited to Hart, which applied the
interim adverse judgment rule based on the denial of a
defendant’s section 631.8 motion for judgment at the close of a
plaintiff’s case-in-chief.13 (Hart, supra, 12 Cal.App.5th at p. 227.)
Hart explained: “A motion for judgment is to be granted if
the court concludes, after ‘weighing the evidence at the close of
the plaintiff’s case,’ that ‘the plaintiff has failed to sustain the
burden of proof.’ [Citations.] Such a conclusion ‘ “ ‘dispense[s]
with the need for the defendant to produce evidence.
[Citations.]’ ” ’ [Citation.] By negative implication, the denial of
a motion for judgment necessarily embodies a finding that the
plaintiff has sustained its burden of proof, at least enough to
13 Section 631.8 provides, in relevant part, “After a party
has completed his presentation of evidence in a trial by the court,
the other party, without waiving his right to offer evidence in
support of his defense or in rebuttal in the event the motion is not
granted, may move for a judgment. The court as trier of the facts
shall weigh the evidence and may render a judgment in favor of
the moving party, in which case the court shall make a statement
of decision as provided in Sections 632 and 634, or may decline to
render any judgment until the close of all the evidence.” (§ 631.8,
subd. (a).)
20
continue with the trial and to permit the defendant to present
contrary evidence. If a prior judicial finding that a plaintiff has
presented triable issues of material fact or evidence of sufficient
substantiality to support a verdict is enough to constitute proof
that the plaintiff’s lawsuit is legally tenable, so too is a prior
judicial finding that the plaintiff has presented sufficient
evidence to sustain its burden of proof at the close of its case-in-
chief.” (Supra, 12 Cal.App.5th at p. 227.)
Unlike in Hart, the unlawful detainer court in the instant
case never denied a motion for judgment, nor indeed denied any
dispositive motion at all. The trial court nonetheless found the
unlawful detainer court’s statements that the church entities had
made their prima facie case was a “finding . . . made on the
merits” for purposes of the interim adverse judgment rule. The
trial court further found that finding was made after a “ ‘full
adversary hearing’ with ‘the benefit of a presentation by both
sides on the merits of the underlying action,’ ” because the
unlawful detainer court made its finding after counsel for Divine
and Petros and counsel for the church entities had had the
opportunity to examine Petros.
In so ruling, the trial court expanded the range of events
that trigger the interim adverse judgment rule to include not only
actual judgments and rulings on motions, but also, in this case,
statements made sua sponte by the unlawful detainer court
during examination of a witness. We have found no published
decision endorsing such an extension, nor do we think such an
extension is warranted either under the specific facts of this case
or the law.
As a starting point, we disagree with the trial court’s
analogizing the unlawful detainer court’s statements regarding
21
the church entities’ prima facie case to a finding on the merits
following a full adversary hearing. There was no adversary
hearing—although both sides had asked questions of Petros,14
the unlawful detainer court neither invited nor heard argument
before making the remarks on which defendants rely. Nor would
we expect the unlawful detainer court to have invited argument
given that no one had made a motion, the parties had not
completed their examination of Petros, and the church entities
had not rested their case-in-chief. The more accurate reading of
the unlawful detainer court’s statements is that it was providing
its assessment of the case as of that point in time to guide the
parties in their presentation of evidence, advising them to focus
on the written lease as the key issue rather than how and with
whom the original tenancy was formed.
Even assuming arguendo the parties’ had delivered
arguments as they would have in an adversary hearing, we
conclude it was error, as a matter of law, for the trial court to
extend the interim adverse judgment rule beyond an actual
judgment or ruling on a formal motion. Extending the interim
adverse judgment rule as the trial court did is contrary to the
principle that a court’s oral comments during trial are inherently
tentative, and generally have no preclusive effect for any
purpose. This is why, for example, “a court’s oral comments may
14 We note the unlawful detainer court stated the church
entities had satisfied their prima facie case before counsel for
Divine and Petros had begun her examination of Petros. The
unlawful detainer court, however, echoed this statement after
counsel for Divine and Petros had examined Petros, and it is
those later statements upon which the trial court relied in
granting the anti-SLAPP motion.
22
be valuable in illustrating the trial judge’s theory, but they may
never be used to impeach the order or judgment on appeal.
[Citation.] This is because a trial court retains inherent
authority to change its decision, its findings of fact, or its
conclusions of law at any time before entry of judgment and then
the judgment supersedes any memorandum or tentative decision
or any oral comments from the bench.” (Shaw v. County of Santa
Cruz (2008) 170 Cal.App.4th 229, 268.) This principle is essential
to the effective conduct of trials—trial courts must have the
freedom to comment on the law and evidence to guide the
presentations of the parties without fear that those comments
will limit or otherwise be used against the court or the parties in
the future.
Also, to the extent trial events short of a final judgment
trigger the interim adverse judgment rule, as a matter of
fairness, those events should be limited to rulings invited by a
party via a formal motion. When a defendant brings a dispositive
motion, the defendant makes a strategic decision to risk the
possibility of foreclosing a future malicious prosecution action in
hopes of hastening resolution of the case. If a dispositive motion
seems unlikely to succeed, the defendant may forgo bringing it to
avoid losing the option of suing for malicious prosecution. The
trial court’s anti-SLAPP ruling in this case deprived Divine of
that choice by foreclosing a malicious prosecution action merely
based on the unlawful detainer court’s sua sponte remarks in the
middle of a witness’s testimony, even though Divine never made
a motion or otherwise invited those remarks.
Further, because adverse interim rulings on the merits
have the powerful effect of foreclosing a defendant’s remedy of a
malicious prosecution action, there should be no ambiguity as to
23
when the trial court has made such a ruling. When the trial
court denies a dispositive motion, it is clear to the parties and to
future courts that the trial court has made a formal
determination regarding the law and the evidence. Were we to
affirm the trial court in this case, we would turn a bright line
rule into a source of endless dispute as parties scrutinize trial
transcripts to determine if the trial court’s comments constituted
a formal ruling on the merits regarding the law and the evidence.
For all these reasons we hold the unlawful detainer court’s
oral statements regarding the church entities’ prima facie case
did not constitute a judgment or ruling for purposes of triggering
the interim adverse judgment rule.
c. Alternatively, Divine has demonstrated
sufficiently the finding regarding the
church entities’ prima facie case was the
product of fraud or perjury
Assuming arguendo the unlawful detainer court’s
statements regarding the church entities’ prima facie showing
constituted a ruling sufficient to trigger the interim adverse
judgment rule, Divine has made a sufficient showing that those
statements were the product of fraud or perjury.
The fraud or perjury exception to the interim adverse
judgment rule applies when the prior adverse ruling “ ‘was
induced by materially false facts,’ ” and “the person making the
allegedly false statements ‘ “knew, or, in the exercise of
reasonable diligence should have known, that his representations
were false.” ’ [Citation.]” (Kinsella v. Kinsella (2020)
45 Cal.App.5th 442, 463 (Kinsella); see Parrish, supra, 3 Cal.5th
at p. 782 [“when a litigant relies on evidence that she knows to be
false, she is not entitled to reap the benefits of the interim
24
adverse judgment rule by deceiving a court into believing that
her claim has merit”].)15
To defeat an anti-SLAPP motion based on the fraud/perjury
exception to the interim adverse judgment rule, a plaintiff need
not prove the adverse judgment or ruling was obtained by fraud
or perjury. (See Kinsella, supra, 45 Cal.App.5th at p. 457.)
Consistent with the standard at the second step of anti-SLAPP
analysis, the plaintiff need only offer evidence that “establish[es]
a prima facie factual showing that the fraud exception applies.”
(Ibid.) In assessing that showing, we accept that evidence as true
and draw “all favorable inferences therefrom.” (Id. at p. 459.)
Divine has made that showing here. Divine relies on the
same evidence presented in the unlawful detainer trial
establishing the existence of a written lease signed by Archpriest
Manoug, including the testimony of the liquor license consultant,
the former Divine employee, the immigration law paralegal, the
handwriting expert, and Gary Taglyan. Based on this evidence,
the unlawful detainer court ruled the written lease superseded
any prior oral arrangement between Petros and the church
entities.
Despite this written lease, the church entities contended
below in their verified unlawful detainer complaint that the
parties were governed by an oral month-to-month lease. They
did not disclose the existence of the written lease to the unlawful
detainer court, and indeed in their discovery responses denied
such a lease existed.
15 Parrish made clear, however, that inadvertent reliance
on “ ‘materially false facts’ ” does not constitute fraud or perjury
for purposes of the exception to the interim adverse judgment
rule. (Parrish, supra, 3 Cal.5th at p. 782.)
25
Accepting Divine’s evidence as true, and drawing all
favorable inferences from that evidence, Divine has made a prima
facie showing that defendants knew or should have known that
St. John’s head priest had signed a written lease that superseded
the prior oral arrangement, yet they concealed the existence of
that lease. Had defendants disclosed the written lease to the
unlawful detainer court, that court obviously never would have
concluded the church entities had made a prima facie showing
that they could evict based on a month-to-month oral lease.
Thus, Divine has made a sufficient showing for anti-SLAPP
purposes that the unlawful detainer court’s findings regarding
the oral lease were the result of defendants’ fraud.
In ruling to the contrary, the trial court noted, as do
defendants on appeal, that the unlawful detainer court made no
findings of fraud or perjury, stating, “[The unlawful detainer]
court’s decision not to credit the testimony of Manoug Markarian
after weighing all the evidence at trial is not the same as a
finding of perjury or fraud.” The fraud/perjury exception,
however, does not depend on particular findings by the court in
the underlying action, but on the evidence to be presented in the
malicious prosecution action. As we have explained, accepting
Divine’s evidence as true and drawing all favorable inferences
therefrom, Divine has made a sufficient showing of defendants’
fraud.
The trial court also rejected the fraud/perjury exception
because the unlawful detainer court made its statements about
the church entities’ prima facie case based solely on Petros’s
testimony, before Archpriest Manoug had testified. This
overlooks the fact that defendants had alleged in their verified
complaint that the operative lease was oral and month-to-month,
26
and had denied the existence of the written lease in their
discovery responses. Had they not done so, the unlawful detainer
court certainly would have reached a different conclusion
regarding the church entities’ prima facie case for eviction.
d. Defendants’ anti-SLAPP motion offered no
other basis to establish probable cause for
the unlawful detainer action
Apart from their reliance on the unlawful detainer court’s
statements regarding their prima facie case, defendants offered
no other argument in their anti-SLAPP motion that Divine could
not show lack of probable cause, nor did the trial court offer any
other basis.
Divine notes in its reply brief that, in addition to denying
the existence of the written lease, the church entities raised
alternative arguments in the unlawful detainer court, including
that Archpriest Manoug lacked the authority to enter into the
lease. Divine contends, however, that it is entitled to bring a
malicious prosecution action based on defendants’ allegedly false
denial of the existence of the written lease, even assuming
arguendo there was probable cause to assert defendants’ other
challenges to the lease. Divine cites Crowley v. Katleman (1994)
8 Cal.4th 666, which held that a complaint for malicious
prosecution arising from a will contest would lie “even though it
does not allege that every one of the grounds asserted in the will
contest lacked probable cause.” (Id. at p. 679; see Bertero v.
National General Corp. (1974) 13 Cal.3d 43, 57, fn. 5 [“an action
for malicious prosecution lies when but one of alternate theories
of recovery is maliciously asserted”].)
We need not decide whether Divine is correct in its reliance
on Crowley, because defendants did not argue in their anti-
27
SLAPP motion that their alternative bases to challenge the lease
established probable cause to bring the unlawful detainer
action—again, their sole argument turned on the unlawful
detainer court’s remarks regarding their prima facie showing of
an oral month-to-month lease. Nor do they raise additional
arguments on appeal.
We therefore hold that Divine has made an adequate
showing for anti-SLAPP purposes that the unlawful detainer
action lacked probable cause.
2. Divine has made an adequate showing of
malice
The malice element of malicious prosecution refers to “ ‘the
defendant’s subjective intent in initiating the prior action.’
[Citations.] ‘[M]alice is present when proceedings are instituted
primarily for an improper purpose. Suits with the hallmark of an
improper purpose are those in which . . . “ ‘. . . the person
initiating them does not believe that his claim may be held valid
[or] the proceedings are begun primarily because of hostility or ill
will . . . .’ ” ’ [Citation.] ‘Since parties rarely admit an improper
motive, malice is usually proven by circumstantial evidence and
inferences drawn from the evidence.’ [Citation.] ‘[M]alice can be
inferred when a party continues to prosecute an action after
becoming aware that the action lacks probable cause.’
[Citations.]” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019)
35 Cal.App.5th 1109, 1122.)
In granting defendants’ anti-SLAPP motion, the trial court
did not reach the malice element, having found Divine had failed
to establish a lack of probable cause. Under de novo review of the
record, however, we conclude Divine has satisfied its showing as
to that element.
28
Divine offered a declaration from Petros Taglyan in which
he described a 2018 incident in which Archpriest Manoug
demanded Petros pay him “$30,000 per month for his personal
expenses,” with the archpriest “ranting ‘you owe me’ for making
‘you rich.’ ” Petros further declared that later that year he
received a letter on church letterhead from Archpriest Manoug,
Harout Makarian, “and other members of the Diocesan and/or
Church Parish Council, demanding that I pay for the new church
construction since the Church and Diocese had no money.”
Petros claimed to have objected to this request, asking the
archpriest and Harout Markarian “why they were trying to extort
me,” after which “a member of the Diocese and Church personally
came to my house to deliver a message that the Diocese and
Church would lock me out of the banquet hall if I did not pay
them $5 million.”
Assuming again that Divine’s evidence is true, and drawing
all favorable inferences therefrom, Petros’s declaration, combined
with the evidence that defendants knowingly concealed the
existence of the written lease, is sufficient to make a prima facie
showing that defendants brought the unlawful detainer action for
a wrongful purpose, either to compel Petros to pay additional
monies to which they were not entitled, or to punish him for
refusing to do so.
Defendants do not address the malice element in their
appellate briefing. In their anti-SLAPP motion, their only
response to Divine’s evidence was the conclusory statement that
“Divine’s claim fails to prove the essential element of actual
‘malice’; an element that requires proof of each Defendant’s
subjective hatred or actual animus.” Petros’s declaration makes
a prima facie showing of animus on the part of Archpriest
29
Manoug and Harout Markarian, and by extension the entities
they represent, the Diocese and St. John.
Divine thus has shown its cause of action for malicious
prosecution has the minimal merit necessary to overcome
defendants’ anti-SLAPP motion.
3. Defendants offer no valid basis to strike the
cause of action for conspiracy to commit
malicious prosecution
Because the trial court found Divine had failed to make a
prima facie showing of malicious prosecution, the trial court
further found Divine could not make a showing of conspiracy to
commit that tort. Our holding that Divine adequately
established the elements of malicious prosecution for anti-SLAPP
purposes undercuts the trial court’s rationale.
Defendants offer no other valid basis to strike the cause of
action for conspiracy. In their original anti-SLAPP filing,
defendants did not address the cause of action for conspiracy at
all. In their reply in support of the anti-SLAPP motion, they
argued they were immune under the litigation privilege (Civ.
Code, § 47, subd. (b)), an argument they repeat on appeal. As
defendants conceded below, however, the litigation privilege is
not a defense to claims of malicious prosecution. (RGC Gaslamp,
LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413,
435.)
On appeal, defendants also quote Doctors’ Co. v. Superior
Court (1989) 49 Cal.3d 39, 44, for the proposition that “ ‘A cause
of action for civil conspiracy may not arise . . . if the alleged
conspirator, though a participant in the agreement underlying
the injury, was not personally bound by the duty violated by the
wrongdoing and was acting only as the agent or employee of the
30
party who did have that duty.’ ” Apart from this quotation,
defendants do not explain the relevance of Doctors’ Co., and we
therefore do not address that opinion. (See In re Tobacco Cases II
(2015) 240 Cal.App.4th 779, 808 [failure to provide argument
may be treated as waiver of an issue].)16
DISPOSITION
The orders granting the special motion to strike and
dismissing the complaint are reversed, and the matter remanded
for further proceedings. Appellant is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
16 Divine states that while this appeal was pending, the
trial court awarded attorney fees to defendants predicated on the
grant of the anti-SLAPP motion. Divine asks that we reverse the
fee award. The fee award is not before us in this appeal and we
do not address it.
31