Zhang v. Cheng CA2/1

Filed 7/25/13 Zhang v. Cheng CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

SHUMIN ZHANG, B241522

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC470179)
v.

PAUL P. CHENG et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Malcolm H.
Mackey, Judge. Affirmed.
Shumin Zhang, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.

__________________________________________
 In a prior lawsuit, an employee represented by successive attorneys sued his
corporate employer and two managerial employees—a husband and wife—alleging
violations of wage and hour laws codified in the Labor Code and other claims. At trial,
the employee prevailed on his Labor Code claims against the corporate employer and the
husband, who was found to be an alter ego of the corporation. The wife was exonerated
on all claims.
The wife then filed the present action against the employee and all of his
attorneys, alleging claims for malicious prosecution, abuse of process, and defamation,
among others. The attorneys and the employee responded with a special motion to strike,
contending the action was a strategic lawsuit against public participation (SLAPP) (Code
Civ. Proc., § 425.16; undesignated section references are to that code). The trial court
granted the motion. This appeal followed.
We conclude the trial court properly found that all of the wife’s causes of action
fall within the scope of the anti-SLAPP statute and that she did not demonstrate a
reasonable likelihood of prevailing on her claims. We therefore affirm.
I
BACKGROUND
The facts and allegations in this appeal are taken from the pleadings, the exhibits
submitted in connection with the anti-SLAPP motion, our prior opinion in this case
(B238290), and additional papers filed in the trial court regarding various rulings.
A. Prior Lawsuits
On June 3, 2009, Attorney Paul P. Cheng filed suit on behalf of Jia Nong Guo
against Guo’s employer, Hong Yei Group, Inc. (Guo v. Han (Super. Ct. L.A. County,
2011, No. BC415219)). The corporation operated the Hong Yei Restaurant, where Guo
worked. The complaint also named as defendants two managerial employees, Jungfeng
Han and Shumin Zhang (husband and wife, respectively), alleging they were alter egos of
the corporate defendant. The complaint alleged that defendants had violated wage and
hour laws codified in the Labor Code; it also included common law claims and a claim
under the “Unfair Competition Law” (Bus. & Prof. Code, §§ 17200–17210).

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 On July 2, 2009, Attorney Cheng filed a similar suit on behalf of another
employee, Jian Hui Han, against the same defendants (Han v. Han (Super. Ct. L.A.
County, 2011, No. BC417128)). The two lawsuits were consolidated.
On or about January 27, 2010, Attorney Cheng substituted out of the case and was
replaced by Attorney George L. Young. Bryan Y. Wong is an attorney who works for
Young. On or about June 21, 2010, Attorney Young substituted out of the case and was
replaced by Attorney Steven L. Sugars. Sugars represented the employees at trial.
Beginning on July 19, 2010, the prior lawsuit was tried to the court, Judge
Robert L. Hess presiding. After a seven-day trial, the court found in favor of the
employees on their Labor Code claims for the nonpayment of overtime compensation
(see Lab. Code, § 1194), the failure to provide meal periods (see id., § 226.7), and the
failure to provide accurate wage statements (see id., § 226, subd. (a)). The employees did
not prevail on their other claims. On November 9, 2010, the trial court issued a statement
of decision. On January 5, 2011, the trial court entered judgment in favor of Jia Nong
Guo in the amount of $63,292.13 and in favor of Jian Hui Han in the amount of
$53,785.02. The judgment stated that the employees were entitled to an award of costs
and reasonable attorney fees. The trial court agreed with the employees that defendant
Jungfeng Han (husband) was the alter ego of the corporate defendant and that he was
liable for the corporation’s debts. The court found that defendant Shumin Zhang (wife)
was not an alter ego of the corporation and was therefore not liable on any claim. The
judgment incorporated the November 9, 2010 statement of decision.
Zhang filed a memorandum of costs, seeking filing fees and an award of $5,000 in
attorney fees on the ground that the claims against her, including the assertion of the alter
ego doctrine, were frivolous. The employees filed a motion to tax costs. At a hearing on
or about July 7, 2011, the trial court granted the motion. The following colloquy took
place between the trial court and Zhang:
“[The Court:] The motion to tax costs is granted. [¶] The costs allowed will be
$470 for your filing fees. There is nothing else in this that is properly supported. [¶] In
the face of an appropriate objection, I have to strike the costs filed. [¶] . . . [¶]

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 “Ms. Zhang: Can I ask you one more question? Now the case is over I just want
to ask you, I am entitled to recover my attorneys fees?
“The Court: I don’t think you are, ma’am.
“Ms. Zhang: Why? How can they sue people frivolously and maliciously?
“The Court: It was not frivolous. [¶] You and your husband ran this restaurant.
You got up and testified that it was really your husband’s business. [¶] You were only
an employee. Although there was some doubt about that, they did not persuade me that
. . . you should be held liable. That doesn’t make it frivolous. [¶] They didn’t succeed,
but it did not make it completely without merit.”
B. Present Action
On September 26, 2011, Zhang, in propria persona, filed the present action against
(1) Jia Nong Guo, the employee who brought one of the prior wage and hour lawsuits
(No. BC415219) and (2) all of the attorneys who had represented him at any point in the
prior suit (Attorneys Cheng, Young, Wong, and Sugars), and (3) the attorneys’ respective
law offices (collectively defendants).
The complaint consisted of eight causes of action: malicious prosecution, abuse of
process, conspiracy, defamation, intentional infliction of emotional distress, negligent
infliction of emotional distress, “intentional tort,” and violation of the Unfair Competition
Law. It also contained a request for punitive damages.
The material portion of the complaint began by quoting four paragraphs from the
June 3, 2009 complaint Guo had filed against Zhang. The quoted material alleged Zhang
was the alter ego of Hong Yei Group, Inc., and she had violated the Unfair Competition
Act and various provisions of the Labor Code in operating the Hong Yei Restaurant. The
remaining allegations were based on what allegedly occurred in the prior action, as
follows.
Attorney Cheng conspired with Guo in the prior action to obtain a fraudulent
waiver of “court fees.” An attorney representing Zhang offered to settle the prior action,
but Cheng rejected the offer. Zhang filed an answer. Cheng filed a “notice of settlement
of entire case” with respect to a “third party” in which he “declared that ‘[a] request for

4
dismissal will be filed no later than 3/22/10,’” and he thereafter substituted out of the
case. Cheng was replaced by Attorney Young, who filed a notice stating that trial would
commence on June 30, 2010. Cheng and Young “failed to keep their promises [to]
dismiss[] [the] . . . complaint by 3/22/10.” Young later substituted out and was replaced
by Attorney Sugars, who failed to appear on the date set for trial. As a result, the trial
court imposed monetary sanctions on Guo, Sugars, and the Law Offices of Sugars and
ordered Zhang’s attorney to submit an “‘Application for Sanctions, Attorney’s fees, and
[the] cost of [a] telephonic appearance.’” Zhang’s attorney did so. Attorneys Young and
Wong filed a trial brief, falsely alleging that Zhang was liable to Guo. Subsequently,
Wong and Sugars filed a “Trial Brief on the Issue of Alter Ego Liability,” falsely
accusing Zhang of “commingling . . . funds in the form of cash, . . . failing to pay taxes,
. . . failing to maintain accounting record, and . . . using . . . the corporation as [a]
subterfuge for illegal transactions.” In the prior action, Guo did not sign the verifications
on his responses to Zhang’s discovery. Sugars and his client, Guo, filed a frivolous
motion for sanctions against Zhang, her husband, her attorney, and Hong Yei Group, Inc.
The trial court denied the motion. The court also entered judgment in Zhang’s favor.
1. Consolidation of Malicious Prosecution Actions
The present case was not Zhang’s first action for malicious prosecution. This
action was filed on September 26, 2011. Two months earlier, on July 25, 2011, Zhang
had filed a malicious prosecution action (No. BC466079) against the same attorneys—
Cheng, Young, Wong, and Sugars—based on their representation of employee Han in his
prior wage and hour lawsuit. On October 19, 2011, the trial court, Judge Malcolm H.
Mackey presiding, ordered the two malicious prosecution actions consolidated.
2. Attempts to Disqualify Trial Judge
On October 31, 2011, Zhang filed a peremptory challenge to disqualify Judge
Mackey. (See § 170.6.) On November 2, 2011, Judge Mackey denied the challenge as
untimely.
On November 7, 2011, Zhang filed a document entitled, “Objection to Judge
Malcolm H. Mackey Presiding In All Future Proceedings,” and also filed a supporting

5
declaration stating Judge Mackey had made several erroneous rulings in the present case.
(See §§ 170.1–170.2.) On November 29, 2011, Zhang filed another “objection” to Judge
Mackey supported by a declaration, again complaining about his rulings. Both objections
asserted that Judge Mackey was “biased and prejudiced towards plaintiff.” On
November 29, 2011, Judge Mackey ordered that the “Statement of Disqualification” be
stricken.
3. Anti-SLAPP Motion
In response to Zhang’s complaint, defendants filed an anti-SLAPP motion,
contending that all of her claims were based on statements or writings “made before a . . .
judicial proceeding . . . [or] in connection with an issue under consideration or review by
a . . . judicial body” (§ 425.16, subd. (e)(1), (2)) and that she was unlikely to prevail on
her claims (see id., subd. (b)(1)). In addressing Zhang’s likelihood of success, defendants
argued that the malicious prosecution claim was meritless because they had probable
cause to file the prior wage and hour lawsuit on Guo’s behalf. For that proposition,
defendants relied on excerpts from the statement of decision in the prior suit and the
statements made by Judge Hess at the hearing on defendants’ motion to tax costs. With
respect to Zhang’s other claims, defendants asserted they were barred by the litigation
privilege (Civ. Code, § 47, subd. (b)).
In her opposition, Zhang argued (1) the anti-SLAPP motion should have been
denied because the hearing date was not within 30 days after the motion was served,
(2) defendants had filed the prior lawsuit without probable cause, and (3) the litigation
privilege did not apply to defendants’ communications.
On March 28, 2012, the trial court, Judge Mackey presiding, heard argument on
the anti-SLAPP motion and granted it by minute order of the same date. On May 29,
2012, the court entered a formal order to that effect. Zhang appealed.1

1 In
an earlier appeal (B238290), Zhang challenged the order granting the anti-
SLAPP motion filed by Attorney Sugars. On January 28, 2013, we filed an opinion
(footnote continued on next page)

6
 II
DISCUSSION
On appeal, Zhang contends (1) the trial court should have denied the anti-SLAPP
motion because it was not set for hearing within 30 days after service, (2) the trial court
erred in consolidating this case with the other malicious prosecution action that Zhang
had brought against the same attorneys (Zhang v. Young (Super. Ct. L.A. County, 2011,
No. BC466079), (3) Judge Mackey abused his discretion in denying Zhang’s requests to
disqualify himself, and (4) the trial court erred in granting the anti-SLAPP motion
because Zhang was likely to prevail on her claims at trial.
We conclude that (1) the anti-SLAPP motion was timely set for hearing; (2) Zhang
cannot challenge, by way of appeal, the trial court’s rulings on disqualification; (3) the
trial court did not err in consolidating Zhang’s two malicious prosecution actions; (4) all
of Zhang’s claims fall within the scope of the anti-SLAPP statute; and (5) Zhang is not
likely to prevail on any of her claims.
A. Timeliness of Hearing Date on Anti-SLAPP Motion
Zhang contends the anti-SLAPP motion should have been denied because the
hearing date was not noticed within 30 days after the motion was served. According to
the docket entries on the “Case Summary” for the present action, Cheng filed the anti-
SLAPP motion on October 25, 2011, with a hearing date of March 28, 2012.2 Thus, the
hearing for the anti-SLAPP motion was 155 days after the motion was served.

(footnote continued from previous page)
affirming that order. The present appeal is from the order granting Attorney Cheng’s
anti-SLAPP motion. Our legal analysis of the anti-SLAPP motion in this appeal is
virtually identical to the analysis in our prior opinion.
2 Thecomplaint was filed on September 26, 2011. The record does not show
when it was served.

7
Nevertheless, we reject Zhang’s contention that the motion had to be noticed for hearing
within 30 days of service.
Former section 425.16, subdivision (f), stated: “The special motion may be filed
within 60 days of the service of the complaint or, in the court’s discretion, at any later
time upon terms it deems proper. The motion shall be noticed for hearing not more than
30 days after service unless the docket conditions of the court require a later hearing.”
(Stats. 1999, ch. 960, § 1, italics added.)
On October 5, 2005, the Legislature amended section 425.16, subdivision (f), as
an urgency statute effective on that date. (Stats. 2005, ch. 535, §§ 1, 4.) Subdivision (f),
as amended, states: “The special motion may be filed within 60 days of the service of the
complaint or, in the court’s discretion, at any later time upon terms it deems proper. The
motion shall be scheduled by the clerk of the court for a hearing not more than 30 days
after the service of the motion unless the docket conditions of the court require a later
hearing.” (Italics & boldface added.)
“Thus, the Legislature expressly abrogated the rule on which [Zhang] relies.
Section 425.16, subdivision (f), as amended, requires the court clerk to schedule a special
motion to strike for a hearing no more than 30 days after the motion is served if such a
hearing date is available on the court’s docket, but does not require the moving party to
ensure that the hearing is so scheduled and does not justify the denial of a special motion
to strike solely because the motion was not scheduled for a hearing within 30 days after
the motion was served.” (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.)
B. Attempts to Disqualify Trial Judge
Zhang sought to disqualify Judge Mackey by filing a peremptory challenge (see
§ 170.6) and by filing two objections based on Judge Mackey’s alleged bias and
prejudice against her (see § 170.3). Judge Mackey denied the peremptory challenge and
the objections.
We cannot review any of these rulings on appeal. The peremptory challenge can
be reviewed only by a petition for writ of mandate. (County of San Diego v. State of
California (1997) 15 Cal.4th 68, 110.) “Writ review is the exclusive avenue of appellate

8
review for such rulings.” (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of
Pittsburgh (2005) 131 Cal.App.4th 1342, 1348.) The same holds true for Zhang’s
objections to Judge Mackey. (See § 170.3, subd. (d).)
C. Consolidation of Zhang’s Malicious Prosecution Actions
The trial court consolidated Zhang’s two malicious prosecution actions, both of
which were based on the prior wage and hour lawsuits against Hong Yei Group, Inc.,
Hong Yei Restaurant, Zhang, and her husband. More specifically, the trial court ordered
that the present case (No. BC470179), filed on September 26, 2011, be consolidated with
Zhang v. Sugars (Super. Ct. L.A. County, 2011, No. BC466079), filed on July 25, 2011.
We have reviewed Zhang’s complaints in both of her malicious prosecution
actions, and conclude the material allegations are identical. In the underlying suits—on
which Zhang based her malicious prosecution actions—two employees of the Hong Yei
Restaurant filed separate lawsuits against Hong Yei Group, Inc., the restaurant, Zhang,
and her husband, alleging violations of wage and hour laws codified in the Labor Code.
As noted, the employees’ suits were consolidated in the trial court, and the employees
prevailed against all defendants with the exception of Zhang.
In both malicious prosecution actions, Zhang sued the same attorneys: Cheng,
Young, Wong, and Sugars. Those attorneys had represented the employees in the prior
wage and hour lawsuits. The two malicious prosecution complaints differed only with
respect to the individuals sued. In the present case, Zhang sued Jia Nong Guo, one of the
employees who brought a prior wage and hour suit (No. BC415219). In the other case,
Zhang did not sue Guo but instead named the other employee, Jian Hui Han, who had
filed the other wage and hour suit (No. BC417128); Zhang also named Han’s wife, Jun
Lian, as a defendant. Both malicious prosecution actions contained the same causes of
action.
“When actions involving a common question of law or fact are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue in the actions;
it may order all the actions consolidated and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.” (§ 1048,

9
subd. (a).) The purpose of consolidation is to promote trial convenience and economy.
(Mueller v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 722.) We review the trial
court’s consolidation order for an abuse of discretion. (See Estate of Baker (1982)
131 Cal.App.3d 471, 484–485.)
Here, the two malicious prosecution actions presented the same questions of fact
and law, and were brought against the same attorneys. Zhang argues that the trial court
erred because it ordered the consolidation after Sugars’s anti-SLAPP motion in case
No. BC466079 had been granted. According to the record, the order of consolidation
was filed on October 19, 2011. Although Judge Mackey had granted Sugars’s anti-
SLAPP motion at a hearing on October 12, 2011, a signed appealable order was not filed
until November 4, 2011. At the time of consolidation, the trial court had not ruled on
Cheng’s anti-SLAPP motion. As noted, the order granting his anti-SLAPP motion was
not filed until May 29, 2012. By consolidating the malicious prosecution actions, the
trial court ensured that the rulings on the two anti-SLAPP motions—by Sugars and
Cheng, respectively—would be consistent. And it is well established that one of the
purposes of consolidation is to avoid inconsistent or conflicting rulings. (See Rylaarsdam
et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013)
¶ 12:340, p. 12(I)-63.)
D. Anti-SLAPP Law
“‘The Legislature enacted the anti-SLAPP statute to protect defendants . . . from
interference with the valid exercise of their constitutional rights, particularly the right of
freedom of speech and the right to petition the government for the redress of
grievances.’” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th
1043, 1052.)
The statute provides that “[a] cause of action against a person arising from any act
of that person in furtherance of the person’s right of petition or free speech under the
United States Constitution or the California Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the court determines that the plaintiff
has established that there is a probability that the plaintiff will prevail on the claim.”

10
(§ 425.16, subd. (b)(1), italics added.) The statute is to “be broadly construed to
encourage continued participation in free speech and petition activities.” (Wanland v.
Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22; accord,
§ 425.16, subd. (a).)
“[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the
defendant’s act underlying the plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech. . . . In the anti-SLAPP context, the
critical point is whether the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech. . . . ‘A defendant meets
this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e).’” (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78, some italics added, citations omitted; accord, Jarrow Formulas,
Inc. v. LaMarche (2003) 31 Cal.4th 728, 734 [“‘arising from’” encompasses any act
“based on” speech or petitioning activity]; Episcopal Church Cases (2009) 45 Cal.4th
467, 477 [same]; City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 72 [same].)
Section 425.16, subdivision (e) states: “As used in [the anti-SLAPP statute,] ‘act
in furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law, (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.” (Italics added; see
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117–1118,
1123.)

11
 “Clauses (3) and (4) of section 425.16, subdivision (e), concerning statements
made in public fora and ‘other conduct’ implicating speech or petition rights, include an
express ‘issue of public interest’ limitation; clauses (1) and (2), concerning statements
made before or in connection with issues under review by official proceedings, contain
no such limitation.” (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th
at p. 1117.) Thus, if a communication falls within either of the “official proceeding”
clauses, the anti-SLAPP statute applies without a separate showing that a public issue or
an issue of public interest is present. (See Briggs, at pp. 1117–1121, 1123; Moore v.
Shaw (2004) 116 Cal.App.4th 182, 196.) In drafting the statute, the Legislature
concluded that authorized official proceedings necessarily involve a public issue or an
issue of public interest. (Briggs, at p. 1118.)
“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s
cause of action but, rather, the defendant’s activity that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech or petitioning.
Evidently, ‘[t]he Legislature recognized that “all kinds of claims could achieve the
objective of a SLAPP suit—to interfere with and burden the defendant’s exercise of his
or her rights.”’ . . . ‘Considering the purpose of the [anti-SLAPP] provision, . . . the
nature or form of the action is not what is critical but rather that it is against a person who
has exercised certain rights.’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92–93, citation
omitted.)
In ruling on an anti-SLAPP motion, a trial court “engage[s] in a two-step process.
First, the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. The moving
defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains
were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,’ as defined in
the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it
then determines whether the plaintiff has demonstrated a probability of prevailing on the
claim. Under section 425.16, subdivision (b)(2), the trial court in making these

12
determinations considers ‘the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.’” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “The term ‘probability [of prevailing]’
is synonymous with ‘reasonable probability.’” (Schoendorf v. U.D. Registry, Inc. (2002)
97 Cal.App.4th 227, 238.)
“The party making a special motion to strike must make a prima facie showing
that the plaintiff’s cause of action arises from the defendant’s free speech or petition
activity. . . . Once the defendant makes a prima facie showing, ‘the burden shifts to the
plaintiff to . . . “make a prima facie showing of facts which would, if proved at trial,
support a judgment in plaintiff’s favor.”’” (Rezec v. Sony Pictures Entertainment, Inc.
(2004) 116 Cal.App.4th 135, 139, citations omitted; accord, Club Members for an Honest
Election v. Sierra Club (2008) 45 Cal.4th 309, 315–316; McGarry v. University of San
Diego (2007) 154 Cal.App.4th 97, 108.)
“In order to establish a probability of prevailing on the claim . . . , a plaintiff
responding to an anti-SLAPP motion must ‘“state[ ] and substantiate[ ] a legally
sufficient claim.”’ . . . Put another way, 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.’”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, citation omitted.)
An attorney who has made statements or writings on behalf of his or her client in
connection with litigation is entitled to the protection of the anti-SLAPP statute to the
same extent as the client. (See Simpson Strong-Tie Company, Inc. v. Gore (2010)
49 Cal.4th 12 [affirming judgment granting anti-SLAPP motion brought by attorney];
Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 485–489; Jespersen v. Zubiate-
Beauchamp (2003) 114 Cal.App.4th 624, 629; White v. Lieberman (2002)
103 Cal.App.4th 210, 220–221; Rylaarsdam et al., Cal. Practice Guide: Civil Procedure
Before Trial, supra, ¶ 7:601, p. 7(II)-11.)
Our review of an order granting an anti-SLAPP motion is de novo. (See Flatley v.
Mauro (2006) 39 Cal.4th 299, 325.)

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E. Protected Activity and Likelihood of Prevailing
For purposes of determining whether Zhang’s claims are based on activity
protected by the anti-SLAPP statute and whether she is likely to prevail at trial, we first
examine the malicious prosecution claim and then turn our attention to the other claims.
1. Malicious Prosecution
Zhang’s claim for malicious prosecution is based on defendants’ filing and pursuit
of civil litigation, that is, the prior wage and hour lawsuits. Her malicious prosecution
claim, by its very nature, falls within the scope of the anti-SLAPP statute. (See Jarrow
Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728, 736–741 & fn. 6; Briggs v. Eden
Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115.)
Thus, Zhang has the burden—in the words of the statute—“[to] establish[ ] that
there is a probability that [she] will prevail on [her] claim.” (§ 425.16, subd. (b)(1).)
“The plaintiff’s showing of facts must consist of evidence that would be admissible at
trial. . . . The court cannot weigh the evidence, but must determine whether the evidence
is sufficient to support a judgment in the plaintiff’s favor as a matter of law, as on a
motion for summary judgment. . . . If the plaintiff presents a sufficient prima facie
showing of facts, the moving defendant can defeat the plaintiff’s evidentiary showing
only if the defendant’s evidence establishes as a matter of law that the plaintiff cannot
prevail.” (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1346, citations
omitted.) “[T]he court’s responsibility is to accept as true the evidence favorable to the
plaintiff.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
To prevail on her cause of action for malicious prosecution, Zhang must prove she
was previously sued on a claim brought without probable cause, initiated with malice,
and pursued to a termination in her favor. (See Slaney v. Ranger Ins. Co. (2004)
115 Cal.App.4th 306, 318.) There is no dispute here that the prior action terminated in
her favor.
“Probable cause is a low threshold designed to protect a litigant’s right to assert
arguable legal claims even if the claims are extremely unlikely to succeed. ‘[T]he
standard of probable cause to bring a civil suit [is] equivalent to that for determining the

14
frivolousness of an appeal . . . , i.e., probable cause exists if “any reasonable attorney
would have thought the claim tenable.” . . . This rather lenient standard for bringing a
civil action reflects “the important public policy of avoiding the chilling of novel or
debatable legal claims.” . . . Attorneys and litigants . . . “‘have a right to present issues
that are arguably correct, even if it is extremely unlikely that they will win . . . .’” . . .
Only those actions that “‘any reasonable attorney would agree [are] totally and
completely without merit’” may form the basis for a malicious prosecution suit.’”
(Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047–1048, citations omitted; accord,
Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 822.) “Malicious
prosecution . . . includes continuing to prosecute a lawsuit discovered to lack probable
cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 973.)
“‘Probable cause may be present even where a suit lacks merit. Favorable
termination of the suit often establishes lack of merit, yet the plaintiff in a malicious
prosecution action must separately show lack of probable cause. Reasonable lawyers can
differ, some seeing as meritless suits which others believe have merit, and some seeing as
totally and completely without merit suits which others see as only marginally meritless.
Suits which all reasonable lawyers agree totally lack merit — that is, those which lack
probable cause — are the least meritorious of all meritless suits. Only this subgroup of
meritless suits present[s] no probable cause.’” (Jarrow Formulas, Inc. v. LaMarche,
supra, 31 Cal.4th at p. 743, fn. 13.)
In asserting they had probable cause to file the prior action against Zhang,
defendants point out they succeeded in establishing that her husband was an alter ego of
the corporation and therefore liable under the judgment. Defendants also relied on the
statement of decision in the prior wage and hour lawsuits. As Judge Hess found:
“Ms. Zhang testified she was one of the managers of [the] Hong Yei [Restaurant], and
received salary checks twice a month. She stated she began work at the restaurant on
June 24, 2007[, the day it opened for business]. Her duties may be summarized as
partially waitress, partially cashier, partially bookkeeper, and partially on-site manager.
Ms. Zhang was responsible for signing checks to pay for the routine bills, including

15
checks for wages, and she delivered those pay checks to the employees. Ms. Zhang
testified [that her husband] bought the food, which he paid for by credit card or checks
she had signed. . . . [¶] . . . [¶]
“With respect to the alter ego issue, . . . [¶] . . . the evidence was not sufficient to
persuade the Court that Ms. Zhang was . . . the alter ego of [the corporation]. While she
had significant responsibilities for the operation of the restaurant, the evidence did not
show that she had or claimed an ownership interest, or that she had a position as an
officer or director of [the corporation].” (Italics added.)
And defendants emphasize that, in the prior wage and hour suits, when Judge Hess
granted their motion to deny Zhang’s request for attorney fees, he said their claims
against her were “not frivolous” and “not . . . completely without merit.” As Judge Hess
explained, directing his comments to Zhang: “You and your husband ran this restaurant.
You got up and testified that it was really your husband’s business. [¶] You were only
an employee. Although there was some doubt about that, they did not persuade me that
. . . you should be held liable. That doesn’t make it frivolous. [¶] They didn’t succeed,
but it did not make it completely without merit.”
Nevertheless, as previously stated, under the anti-SLAPP statute, a malicious
prosecution claim, by definition, is based on protected activity. Defendants’ evidence on
the issue of probable cause is considered only if Zhang first satisfies her burden of
demonstrating she is likely to prevail on the claim.
In her appellate brief, Zhang cites the record with respect to only two assertions
regarding the merits of her claims. First, she says, “[i]n the instant case, as the facts and
evidence show[ ] (p. 4/10-26; p. 5/1-9), the trial court erred in granting [defendants’]
special motion[ ] to strike the complaint when [they] failed to present facts and evidence
supporting their allegations (Exhibits 14, 15, 16).” (Boldface added.) Second, she asserts
that, “as shown by Exhibits 14, 15, and 16[, defendants], and each of them, were engaged
in extortion. Thus, the trial court erred in granting [defendants’] meritless and untimely

16
motion[ ] to strike because the statutes did not apply to [defendants’] evil motive.”
(Boldface added.)3
We conclude Zhang did not “‘“make a prima facie showing of facts which would,
if proved at trial, support a judgment in [her] favor.”’” (Rezec v. Sony Pictures
Entertainment, Inc., supra, 116 Cal.App.4th at p. 139.) Although Zhang provided
citations to the record—either by page or exhibit number—she did not explain the
relevance of the evidence in an adequately developed argument. (See Kurinij v. Hanna &
Morton (1997) 55 Cal.App.4th 853, 865; Landry v. Berryessa Union School Dist. (1995)
39 Cal.App.4th 691, 699–700.) “We will not develop the appellant[’s] arguments for
[her].” (Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 237–238.)
Further, Zhang’s assertions are nothing more than legal conclusions. But to defeat
defendants’ anti-SLAPP motion, Zhang had to make a “showing of facts . . . that would
be . . . sufficient to support a judgment in the plaintiff’s favor as a matter of law.” (Hall
v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1346, italics added.)
In sum, Zhang failed to establish a reasonable likelihood she would prevail on her
malicious prosecution claim. We therefore do not consider any evidence submitted by
defendants on that point. The trial court properly granted the anti-SLAPP motion as to
the malicious prosecution claim.
2. Remaining Claims
Although a malicious prosecution claim is, by definition, based on activity
protected by the anti-SLAPP statute, defendants must make an affirmative showing that
Zhang’s other claims—abuse of process, conspiracy, defamation, intentional infliction of

3 Pages 4 and 5 of the record are portions of Zhang’s complaint in the present
action which, in turn, quote the allegations made against her in Guo’s prior suit alleging
wage and hour violations. Exhibit 14 is Guo’s responses to Zhang’s document demand in
the prior suit; exhibit 15 is Zhang’s objections to Judge Hess’s statement of decision in
the prior suit; and exhibit 16 is the papers filed by Zhang’s husband in the prior suit,
requesting a new trial.

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emotional distress, negligent infliction of emotional distress, “intentional tort,” and
violation of the Unfair Competition Law—are based on statements or writings protected
by the statute.
We conclude defendants satisfied that requirement. We have already described
the allegations in Zhang’s complaint. (See pt. I.B., ante.) Her remaining claims are
based on statements or writings “made [by defendants] before a . . . judicial proceeding
. . . [or] in connection with an issue under consideration or review by a . . . judicial body.”
(§ 425.16, subd. (e)(1), (2).) In short, Zhang’s claims are based on communications made
by defendants in the prior wage and hour lawsuits or in connection with them.
Consequently, the burden shifts to Zhang to show she is likely to prevail on her
remaining claims. She has failed in that respect because the claims are barred by the
litigation privilege.
“The usual formulation is that the privilege applies to any communication
(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and (4) that have some
connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205,
212.) “Because the privilege applies without regard to malice or evil motives, it has been
characterized as ‘absolute.’” . . .
“The principal purpose of [the litigation privilege] is to afford litigants and
witnesses . . . the utmost freedom of access to the courts without fear of being harassed
subsequently by derivative tort actions. . . . [¶] . . . [¶]
“[I]n immunizing participants from liability for torts arising from communications
made during judicial proceedings, the law places upon litigants the burden of exposing
during trial the bias of witnesses and the falsity of evidence, thereby enhancing the
finality of judgments and avoiding an unending roundelay of litigation, an evil far worse
than an occasional unfair result.” (Silberg v. Anderson, supra, 50 Cal.3d at pp. 213–214,
citations omitted.) “‘In other words, the litigation privilege is intended to encourage
parties to feel free to exercise their fundamental right of resort to the courts for assistance
in the resolution of their disputes, without being chilled from exercising this right by the

18
fear that they may subsequently be sued in a derivative tort action arising out of
something said or done in the context of the litigation.’” (Aronson v. Kinsella (1997)
58 Cal.App.4th 254, 262.)
“In furtherance of the public policy purposes it is designed to serve, the privilege
. . . has been given broad application. Although originally enacted with reference to
defamation . . . , the privilege is now held applicable to any communication, whether or
not it amounts to a publication . . . , and all torts except malicious prosecution. . . .
Further, it applies to any publication required or permitted by law in the course of a
judicial proceeding to achieve the objects of the litigation, even though the publication is
made outside the courtroom and no function of the court or its officers is involved. . . .”
(Silberg v. Anderson, supra, 50 Cal.3d at pp. 211–212, citations omitted.)
We acknowledge that in comparing the anti-SLAPP statute with the litigation
privilege, our Supreme Court has stated, “[T]he two statutes are not substantively the
same” and they do not “serve the same purposes.” (Flatley v. Mauro, supra, 39 Cal.4th
at pp. 323–324.) Yet, in many cases, a defendant’s communications will fall within the
scope of the anti-SLAPP statute and will also be protected by the litigation privilege.
(See, e.g., Flatley, at p. 323 [“The litigation privilege is also relevant to the second step in
the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must
overcome to demonstrate a probability of prevailing.”]; JSJ Limited Partnership v.
Mehrban (2012) 205 Cal.App.4th 1512, 1520–1522; Alpha & Omega Development, LP v.
Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 663–667; Dove Audio, Inc. v.
Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 781–785; Rylaarsdam et al.,
Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 7:630 to 7:631, 7:1015,
pp. 7(II)-15 to 7(II)-16, 7(II)-54.)
Zhang’s remaining claims are based on communications made by defendants in a
prior judicial proceeding; defendants were participants in that proceeding; the
communications were made to establish Zhang’s liability; and the communications had
some connection or logical relation to the action. (See Silberg v. Anderson, supra,
50 Cal.3d at p. 212.) The litigation privilege therefore applies and precludes liability as

19
to all of defendants’ alleged communications. (See Rylaarsdam et al., Cal. Practice
Guide: Civil Procedure Before Trial, supra, ¶¶ 1:604 to 1:634, pp. 1-134 to 1-149.)
Zhang’s remaining claims are therefore barred by the litigation privilege.
Finally, even if the litigation privilege does not bar the remaining claims, Zhang
has failed to demonstrate a likelihood of prevailing on any of them for the same reason
she failed in that respect on the malicious prosecution claim: In her appellate brief,
Zhang merely asserted two legal conclusions: (1) “the facts and evidence show[ ]
(p. 4/10-26; p. 5/1-9), the trial court erred in granting [defendants’] special motion[ ] to
strike the complaint”; and (2) “as shown by Exhibits 14, 15, and 16[, defendants], and
each of them, were engaged in extortion.” (See pt. II.E.1, ante.) These conclusory
statements are insufficient to “‘“make a prima facie showing of facts which would, if
proved at trial, support a judgment in [her] favor [on any of her claims].”’” (Rezec v.
Sony Pictures Entertainment, Inc., supra, 116 Cal.App.4th at p. 139, italics added in
Rezec.)
Accordingly, the remaining claims are without merit because the litigation
privilege bars liability based on defendants’ communications, and Zhang failed to cite
and analyze evidence that established a reasonable likelihood she would prevail at trial.
It follows that the trial court properly granted the anti-SLAPP motion as to Zhang’s
remaining claims as well as the malicious prosecution claim.

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 III
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

MALLANO, P. J.
We concur:

ROTHSCHILD, J.

CHANEY, J.

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