D and S Homes v. Ludlow CA2/5

Filed 7/7/15 D and S Homes v. Ludlow CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE

D AND S HOMES, INC., B257783

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LC100734)
v.

JEFFREY LUDLOW et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County.
John P. Farrell, Judge. Reversed with directions.
Henrichs Law Firm, John Henrichs for Plaintiff and Respondent.
Ray B. Bowen, Jr., for Defendants and Appellants.
 D and S Homes, Inc., a California Corporation (D & S), filed this malicious
prosecution action against Edmundo Bustamante and Tiffany Bustamante (the
Bustamantes), Ray B. Bowen, Jr. (Bowen), and Jeffery Ludlow (Ludlow). The
Bustamantes had sued plaintiff and others in connection with the purchase of their newly-
constructed home, alleging that the home had been built by an unlicensed contractor (the
Underlying Action). Bowen represented the Bustamantes in that lawsuit, and Ludlow
notified the Bustamantes that the builder of their home was unlicensed and referred them
to Bowen for legal advice. The Bustamantes lost the Underlying Action and were
ordered to pay attorney fees of $1,019,013.59.
In the present litigation, the trial court denied the motions of Bowen and Ludlow
brought under Code of Civil Procedure section 425.16.1 We hold that the trial court
improperly took judicial notice of the truth of the contents of documents from the
Underlying Action, and D & S otherwise failed to sustain its burden to establish a prima
facie case that it would prevail at trial, as required by section 425.16. Accordingly, we
reverse and order the trial court to grant the motions and dismiss this litigation.

PROCEDURAL AND FACTUAL BACKGROUND
In its first amended complaint in this action against the Bustamantes, Bowen and
Ludlow, D & S alleged that filing and maintaining the Underlying Action constituted
malicious prosecution. In the Underlying Action, the Bustamantes had alleged that the
contract to purchase their new home was a construction contract subject to the protections
of Business and Professions Code section 7031 rather than a contract for purchase of a
completed home not covered by that statute. Based on Bowen’s (later discredited)
interpretation of that statute, Bowen had prepared and filed on behalf of the Bustamantes
the complaint in the Underlying Action, which included causes of action for fraud,
negligent misrepresentation and conspiracy to commit fraud in connection with the

1
All further undesignated code section references are to the Code of Civil
Procedure.
2
construction of their residence. The Underlying Action was the subject of a judicial
reference under Code of Civil Procedure section 638, as provided for in the contract
between D & S and the Bustamantes.2 On appeal from the judgment in that action,
Division Six of this court affirmed in a non-published decision, Edmundo Bustamante, et
al. v. T.O. IX, LLC, et al. (July 10, 2012, B237167), holding that Business and
Professions Code section 7031 was inapplicable as the contract was one for sale of a
completed home rather than a contract for its construction, and the former was not subject
to the provisions of that statute.
In the present litigation, D & S alleges that the Underlying Action “was
commenced by or at the direction of the defendants named herein, was pursued to a legal
conclusion favorable to D & S, was brought without probable cause and was not
objectively reasonable. . . .” D & S further alleges that the Underlying Action was
brought “with the intentional wrongful purpose of injuring [D & S]. . . .”3
Ludlow4 and Bowen filed separate motions pursuant to section 425.16 which were

2
Section 638 and California Rules of Court, rule 3.900 et seq., set out the procedure
for a general reference. After the referee renders a statement of decision (§ 643), the trial
court enters judgment as if the action had been tried by the court. (§ 644, subd. (a).) The
judgment so entered is subject to appeal in the same manner as other judgments. (§ 645.)
3
The elements required to establish a claim for malicious prosecution were set out
in Bisno v. Douglas Emmet Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1544, as
follows: “To prevail on a claim for malicious prosecution, the plaintiff must show the
prior action was begun with malice and without probable cause at the defendant’s
direction and was terminated in the plaintiff’s favor. The probable cause element is
objective, not subjective, with the trial court required to determine whether, on the basis
of the facts known to defendant, it was legally tenable to bring the prior action. The
benchmark for legal tenability is whether any reasonable attorney would have thought the
claim was tenable. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)
Good faith reliance on the advice of counsel, after truthful disclosure of all the relevant
facts, is a complete defense to a malicious prosecution claim.” (Bertero v. National
General Corp. (1974) 13 Cal.3d 43, 53-54.)
4
Appellant Ludlow was represented in the trial court in this action by appellant
Bowen, as he is on this appeal.

3
heard together.5 The trial court ruled that the moving parties met the first prong of the
anti-SLAPP statute as “malicious prosecution causes of action fall within the purview of
the anti-SLAPP statute.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728,
735.)6 The trial court also concluded that D & S had established the required prima facie
case and did have a probability of prevailing on the merits of each claim as to Ludlow
and as to Bowen. Accordingly, the trial court denied each motion. Bowen and Ludlow
filed a timely notice of appeal.

CONTENTIONS
Bowen and Ludlow contend the trial court applied the incorrect standard in ruling
on their motions; erred in admitting into evidence for the truth of their contents most of
the items on D & S’s request for judicial notice; and erred in concluding that D & S had
met its “second prong” obligation under section 425.16 to establish a probability of
prevailing on its cause of action. Additionally, appellants contend the evidence in the
record from the reference proceeding, if admissible, does not support a malicious
prosecution action; the trial court erred in other evidentiary rulings; and it erred in not
ruling that Bowen’s advice of counsel defense was meritorious.

5
Litigation brought under section 425.16 addresses “strategic lawsuits against
public participation.” The statute is commonly referred by the acronym “SLAPP” and
motions under it are commonly referred to as “anti-SLAPP motions.” An anti-SLAPP
motion seeks to terminate well prior to trial litigation that is determined to be without
merit and to be intended to chill the defendant’s exercise of constitutional rights of free
speech or petition for redress of grievances in connection with a public issue.
There are two steps or prongs in the analysis of motions under this section. If the
defendant establishes in the first prong that the challenged cause of action arises from
protected activity, the burden shifts to the plaintiff to establish in the second prong a
prima facie case based on admissible evidence that it has a probability of prevailing on
the claim at trial. If the plaintiff establishes such a prima facie case, the trial court denies
the anti-SLAPP motion and allows the case to proceed to trial, denying the moving
defendant an early termination of the litigation. (See § 425.16, subds. (a) & (b)(1);
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056, and cases cited therein.)
6
The record on appeal contains both the minute order for the date of the hearing
and the reporter’s transcript of proceedings that date.
4
 DISCUSSION
The nature of a section 425.16 motion and the standard of review
“The Legislature [found and declared] that there [had] been a disturbing increase
in lawsuits brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).)
These suits have been referred to as “Strategic Litigation Against Public Participation” or
“SLAPP” suits. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 268,
fn. 1.) In seeking to prevent the abuse of the judicial process through SLAPP suits, the
Legislature enacted a specific procedure, found in section 425.16, by which defendants
may dispose of such suits at the pleading stage to avoid the costs and delays of litigation.
(Id. at p. 278.) This procedure is referred to as an anti-SLAPP motion. “‘[T]he point of
the anti-SLAPP statute is that you have a right not to be dragged through the courts
because you exercised your constitutional rights.’ [Citation.]” (Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, 193.)
“A section 425.16 special motion to strike involves a two-step analysis. This
includes determining first whether the plaintiff’s cause of action arose from an act taken
by the defendant in furtherance of the defendant’s right of petition or free speech, and if it
did so arise, then determining whether the plaintiff has shown a probability of prevailing
on the claim in the complaint. The defendant bears the burden on the first question, and
the plaintiff on the second. If the court determines the cause of action did not arise from
such protected activity, the motion to strike must be denied. [Citations.]” (Santa Monica
Rent Control Bd. v. Pearl Street (2003) 109 Cal.App.4th 1308, 1316-1317.)
“‘As is true with summary judgment motions, the issues in an anti-SLAPP motion
are framed by the pleadings. [Citations.] The plaintiff may not rely solely on its
complaint, even if verified; instead, its proof must be made upon competent admissible
evidence. [Citation.] In reviewing the plaintiff’s evidence, the court does not weigh it;
rather, it simply determines whether the plaintiff has made a prima facie showing of facts
necessary to establish its claim at trial. [Citation.]’ [Citation.]” (Paiva v. Nichols (2008)

5
168 Cal.App.4th 1007, 1017.) “‘When reviewing a ruling on a defendant’s section
425.16 special motion to strike a complaint, we employ our independent judgment.’
(Santa Monica Rent Control Bd. v. Pearl Street, supra, 109 Cal.App.4th at p. 1317.)”
(Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109.)

“Summary judgment-like” burden
The parties did not dispute, and the trial court ruled, that defendants had met their
first prong burden to establish that the present complaint for malicious prosecution
implicates the right to petition, and thus that defendants had met their burden to establish
compliance with the first prong of the anti-SLAPP statute. The trial court correctly relied
on the holding of our Supreme Court in Jarrow Formulas, Inc. v. LaMarche, that section
425.16 applies to malicious prosecution actions. (Jarrow Formulas, Inc. v. LaMarche,
supra, 31 Cal.4th 728 at p. 735.) Addressing the second prong of the required analysis
of anti-SLAPP motions, Bowen and Ludlow err in their contention that the trial court
applied an incorrect standard when it stated during the hearing, and wrote in its tentative
ruling, that analysis of the plaintiff’s burden on this prong of the motion was a
“[s]ummary judgment-like procedure.”
Our Supreme Court has often used the phrase “summary judgment-like” as a
shorthand to describe the analysis under the second prong of the anti-SLAPP statute. For
example, in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, our Supreme
Court cited with favor prior decisions in which it had used this phrase to describe the
process for determining anti-SLAPP motions: “The Legislature enacted section 425.16 to
prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the redress of
grievances.’ (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete ‘the
defendant’s energy’ and drain ‘his or her resources’ (Simmons v. Allstate Ins. Co. (2001)
92 Cal.App.4th 1068, 1074), the Legislature sought ‘“to prevent SLAPPs by ending them
early and without great cost to the SLAPP target”’ (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 65). Section 425.16 therefore establishes a procedure

6
where the trial court evaluates the merits of the lawsuit using a summary judgment-like
procedure at an early stage of the litigation. (See Simmons, supra, 92 Cal.App.4th at p.
1073.) In doing so, section 425.16 seeks to limit the costs of defending against such a
lawsuit. (See Equilon Enterprises, supra, 29 Cal.4th at p. 65 [noting that the ‘short time
frame for anti-SLAPP filings and hearings’ and the ‘stay of discovery’ pending resolution
of the motion evidences the Legislature’s intent to minimize the litigation costs of
SLAPP targets].)” (Id. at p. 192 [emphasis added].) The same term is used in the same
way in other cases decided by our Supreme Court and courts of appeal. (E.g., Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-1123; Oviedo v.
Windsor Twelve Properties, LLC, supra, 212 Cal.App.4th at p. 109.)
The record establishes that the trial court had the understanding articulated in the
cases cited above when it used the phrase “summary judgment-like procedure” to refer to
the plaintiff’s burden in this case, and to describe the analysis of the evidence presented
on the second prong of these motions which it was supposed to conduct. There was no
error in so describing the manner of analysis under the second prong of section 425.16;
this contention lacks merit.

The request for judicial notice and other evidence in the record
To meet its second prong burden, D & S asked that the trial court take judicial
notice of multiple documents (listed in the accompanying footnote) 7 for the truth of their

7
D & S filed its request for judicial notice in two volumes. In the first volume, it
sought judicial notice of (1) the joint purchase agreement and escrow instructions for the
Bustamantes’ property; (2) the superior court complaint in the Underlying Action; (3) a
2008 minute order of the trial court in that action; (4) the Bustamantes’ petition for writ
of mandate seeking review of a pre-trial ruling in that action; (5) the order of Division 6
of this court summarily denying that writ petition; (6) the Bustamantes’ petition for
hearing in the Supreme Court after denial of this writ petition; (7) the Supreme Court’s
denial of the petition for review; (8) the Bustamantes’ appellants’ opening brief on their
appeal from the judgment in that litigation; (9) Division Six’s non-published opinion
affirming the trial court’s judgment (Edmundo Bustamante, et al. vs. T.O. IX, LLC, et al.
(July 10, 2012 B237167)); (10) the referee’s interim award and “judgment” in the
reference proceeding; (11) uncertified pages of the trial transcript from three days of
testimony in the reference proceeding; and (12) a declaration of counsel for D & S
7
contents. It also offered into evidence a declaration of counsel for D & S by which that
lawyer sought to provide certification of the reporter’s transcripts of the reference
proceeding which D & S included in its requests for judicial notice. Three days prior to
the hearing on the anti-SLAPP motions, D & S filed additional declarations by which it
sought to establish that Bowen had made materially false statements to a court in an
unrelated action. Defendants made a timely oral objection to admission of these
documents as being filed untimely, which objection was sustained. Also, defendants had
timely filed before the hearing, as a principal part of their reply briefs, objections and
arguments, supported by case citations, as to why most of D & S’s requests for judicial
notice of the truth of the documents filed in or created in the reference proceeding
(including in particular the uncertified transcripts of testimony taken there) should not be
admitted for other than the fact of their existence and filing.8
D & S also filed written objections to evidence offered by Bowen and Ludlow.9 D
& S did not make any objection to the request for judicial notice of documents requested
by defendants. The trial court granted this request for judicial notice.

seeking to authenticate certain transcripts of the reference proceeding. In the second
volume, D & S sought judicial notice of 10 days of testimony from the reference
proceeding. D & S later filed certified copies of some of these documents.
8
The minute order setting out the rulings made for this hearing states that there
were no written evidentiary objections offered by plaintiff. This is clearly a
typographical error as there are numerous copies of the plaintiff’s evidence objections in
the record. The trial court may have intended the sentence to refer to objections by
defendants, but it is incorrect in any event as defendants’ separate reply briefs in the trial
court devote much of their analysis to reasons why the trial court should not grant judicial
notice to the findings and conclusions of the referee or to the transcripts of testimony
given in that proceeding, except as to the fact of their existence and their being filed in
this action, as discussed in the body of this opinion.
9
California Rules of Court, rule 3.1354, which requires that objections to evidence
be presented in a certain format, applies only to motions for summary judgment. While
appellants’ argument that that rule applies to evidentiary objections made in connection
with other motions is erroneous, it is otherwise of no moment in the analysis of the issues
in this case as the “evidence” offered by D & S is not admissible for the reasons
discussed in the text.
8
 At the conclusion of the hearing, the trial court stated that the tentative ruling
would become its final ruling and attached it to the minute order issued after the hearing.
That ruling granted judicial notice “as to additional documents filed May 19, 2013 by
Plaintiff as to being records and as to findings and rulings of court or arbitrator filed with
court.” While the minute order itself is unclear on whether the trial court also granted
judicial notice to the larger group of documents in the two part request for judicial notice
filed by D & S, our reading of the reporter’s transcript of proceedings for the day of the
hearing leads us to conclude that the trial court did grant judicial notice of all of the
documents offered by D & S, and that in granting D & S’s request for judicial notice of
these documents, it admitted them for the truth of their contents.
We reach this conclusion for the following reasons. First, a plaintiff seeking to
meet its obligation on the second prong of analysis of an anti-SLAPP motion must
substantiate a legally sufficient claim; it “‘must demonstrate that the complaint is both
legally sufficient and is 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, quoting Matson v. Dvorak
(1995) 40 Cal.App.4th 539, 548.) And the evidence presented by a plaintiff to sustain its
burden on the second prong must be admissible at trial. (HMS Capital, Inc. v. Lawyers
Title Co. (2004) 118 Cal.App.4th 204, 212; Roberts v. Los Angeles County Bar Assn.
(2003) 105 CalApp.4th 604, 613-614.)
Second, the burden of going forward on the second prong of an anti-SLAPP
motion is on the plaintiff, here D & S (Roberts v. Los Angeles County Bar Assn., supra, at
p. 616), and, without the “evidence” contained in the documents within D & S’s requests
for judicial notice being offered for the truth of the matters contained therein, D & S
could not have met this second prong burden. (The only “evidence” it offered that was
not contained in its two volume request for judicial notice was the declaration of its
counsel seeking to “certify” the reference proceeding transcripts.) Thus, the trial court
could not have denied the anti-SLAPP motions without first determining that D & S had
met its second prong burden, and this could be met only if the “evidence” offered by

9
D & S was determined to be admissible for the truth of its contents. Bowen and Ludlow
correctly contend that the trial court erred in so concluding.
To be admissible for judicial notice a matter must be within one of the categories
described either in Evidence Code section 451 (mandatory judicial notice) or section 452
(permissive judicial notice). In general, as a substitute for other methods of proof,
judicial notice is limited to matters which are indisputably true. (Mack v. State Bd. of Ed.
(1964) 224 Cal.App.2d 370, 373.) Further, Evidence Code section 450 makes clear that
“[j]udicial notice may not be taken of any matter unless authorized by law.” Only section
452 has potential for application in this case. That section provides: “Judicial notice may
be taken of the following matters . . . [¶] (c) Official acts of the legislative, executive,
and judicial departments of the United States and of any state of the United States. [¶]
(d) Records of (1) any court of this state or (2) any court of record of the United States or
of any state of the United States. [¶] (h) Facts and propositions that are not reasonably
subject to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” Thus, while judicial notice can be a
substitute for other forms of proof, it is limited to those things that are indisputably true.
And, even if a court takes judicial notice of the fact that a document was filed in prior
litigation or that certain factual findings were made in that litigation, the trial court in the
later proceeding does not take judicial notice of the truth of those factual findings. (Arce
v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483-484.) This is
illustrated well by many of the items which D & S sought to have admitted for the truth
of their contents in this action.10 The items may be grouped into the following categories
for analysis: (1) transcripts of testimony in the reference proceeding; (2) pleadings and
briefs filed in the Underlying Action together with petitions filed in the subsequent writ
proceedings; (3) evidentiary materials (the purchase agreement for the Bustamantes’
home); (4) records of actions taken in the Underlying Action (a minute order and the non-

10
These items are inventoried in footnote 7, ante, page 7.

10
published opinion of the Court of Appeal in the Underlying Action); and (5) the “Interim
Award and Judgment” issued by the referee in the reference proceeding.
As Bowen and Ludlow argue, the transcripts of testimony from the reference
proceeding are not certified and therefore are not admissible in any event. Moreover,
they do not qualify under any of the subsections of section 452. Were they certified,
arguably judicial notice could be taken of the fact of their existence, but they are not
admissible for the truth of their content by means of judicial notice.11 Nor is the purchase
agreement in the Underlying Action admissible via judicial notice; it does not qualify
under any subsection of Evidence Code section 452.
The various filings in the Underlying Action (including the complaint and minute
order and the documents concerning attempts to obtain review of that order, as well as the
non-published opinion from the appeal in the Underlying Action), are admissible as court
records. (Evid. Code, §§ 452, subds. (c) & (d).) By their existence and the fact of their
filing, these documents do tend to establish that, in the Underlying Action, Bowen (and
arguably Ludlow) advocated a view of the application of the statute underlying the claims
asserted in that action12 which the Court of Appeal later determined was erroneous.
However, these records do not support key elements of D & S’s cause of action in this
case: there is no viable inference from these records that the prior action was begun or
maintained with malice and without probable cause. (Bisno v. Douglas Emmet Realty
Fund 1988, supra, 174 Cal.App.4th at p. 1544.)

11
Transcripts of testimony are most unlikely to qualify as matters “not reasonably
subject to dispute” under Evidence Code section 452, subdivision (h) as, by their very
nature, they are a record of a dispute. To be admissible for the truth of their content, they
would have to come within an exception to the hearsay rule. D & S does not argue that
they do or may. We therefore do not further consider this contention; nor do we suggest
that they would meet any such exception.
12
In Edmundo Bustamante, et al. vs. T.O. IX, LLC, et al. (July 10, 2012 (B237167)),
Division Six of this court held that the contract for purchase of the new residence was a
contract of sale rather than a construction contract and thus Business and Professions
Code section 7031 was inapplicable. (Id. at 4 et seq.)
11
 Further, it is error to take judicial notice of the truth of contents of briefs filed in
the appellate courts or to take judicial notice of factual statements made in a prior
appellate court opinion. (Gilmore v. Superior Court (1991) 230 Cal.App.3d 416.) The
same reasoning applies to the statements of or conclusions reached by the referee in this
case. “[A] court may take judicial notice that a prior order was entered, but it may not
take judicial notice of the truth of factual findings made therein.” (Steed v. Department
of Consumer Affairs (2012) 204 Cal.App.4th 112, 121; accord Plumley v. Mockett (2008)
164 Cal.App.4th 1031, 1050.) This is so because, as the court stated in Sosinsky v. Grant
(1992) 6 Cal.App.4th 1548 (Sosinsky), “‘Judicial notice substitutes for formal proof only
because the matters judicially noticed are not reasonably subject to dispute.’ (2 Jefferson,
[Cal. Evidence Benchbook (Cont. Ed. Bar 2d ed. 1982) Judicial Notice,] at § 47.2,
p. 1758 [italics in original].)”
D & S argues both that all of the documents which it submitted for judicial notice
may be admitted for the truth of their contents and that the burden is on Bowen and
Ludlow to “to submit admissible, competent evidence to the Court.” These contentions
are not supported by either the Evidence Code, as discussed above, or by the cases, to
which we now turn.
The cases upon which D & S relies for these contentions are inapposite. D & S
relies on Evans v. Unkow (1995) 38 Cal.App.4th 1490 (Evans), to support its claim that
the burden is on Bowen and Ludlow to submit “admissible, competent evidence.”
However, the portion of Evans which D & S cites in support of this contention addresses
evidence required on the second prong of the motion and discusses the plaintiff’s burden
rather than that of the defendant. Further, the Court of Appeal in that case points out that
the evidence proffered on the second prong must be admissible. (Id. at p. 1497.) D & S
also cites as support for its position a superseded opinion, the Court of Appeal opinion in
Reid v. Google, ignoring that the decision of the Supreme Court at 50 Cal.4th 512
rendered the Reid opinion at 155 Cal.App.4th 1342 a nullity.
Several of the other cases upon which D & S relies have been distinguished or
disagreed with by better reasoned later cases. For example, Weiner v. Mitchell,

12
Silberberg & Knupp (1980) 114 Cal.App.3d 39 (Weiner) was distinguished in Sosinsky,
supra, 6 Cal.App.4th at page 1564. The extent to which a court may take judicial notice
of factual findings made by a judge in a prior proceeding was expressly considered in
Sosinsky, supra, 6 Cal.App.4th 1548. Also analyzing a malicious prosecution action, the
Court of Appeal in Sosinsky specifically held that it would be improper to take judicial
notice of the truth of findings of fact rendered in the prior proceeding; in that action,
those “facts” were the predicate for the complaint in the later action. Instead, the
Sosinsky court held that the proper ruling would be to judicially notice that the rulings in
the prior case had been made as indicated; but that “is different from the taking of judicial
notice that A’s testimony must necessarily have been true simply because the judge
believed A and not B. Indeed, if A’s testimony consists of ‘facts . . . that are not
reasonably subject to dispute and are capable of immediate and accurate determination by
resort to sources of reasonably indisputable accuracy’ (Evid. Code, § 452, subd. (h)),
there would have been no need for a trial on the dispute between A and B in the first
place.” (Id. at p. 1565.) Nor may hearsay be treated as true simply because it is included
in a court record that is properly noticed. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)
D & S’s reliance on Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &
McCort (2001) 91 Cal.App.4th 875 (Lockley), is also misplaced. In that case, the
appellate court reversed the trial court, which had taken judicial notice of a “fact” which
had not been determined in a prior adversary proceeding. (Id. at p. 883.) That ruling
meant that the appellate court in Lockley did not have to then analyze whether the “fact”
would have been admissible for the truth of its content under section 452 had it been
determined in the prior adversary proceeding. Almost certainly, the issue of whether that
“fact” would have been admissible for the truth of its content in the second proceeding
would have been dependent upon its meeting other Evidence Code requirements, most
likely qualifying for admission under one of the statutory exceptions to the hearsay rule.
Here, to the extent D & S sought to have the trial court rely on the testimony given in the
prior reference proceeding, Lockley makes clear that section 452 is not a sufficient basis
for admission of such evidence for its truth. Had the transcripts of the reference

13
proceeding in the Underlying Action been certified, then the trial court here could have
correctly taken judicial notice of the fact of their existence; but even then their admission
for the truth of the matters testified to and recorded in those transcripts is governed by
other provisions of the Evidence Code, most likely exceptions to the hearsay rule.
Further, the Lockley court confirms that only facts which are indisputably true are a
proper subject of judicial notice, criticizes Weiner, supra, 114 Cal.App.3d 39, and
explains why Sosinsky, supra, 6 Cal.App.4th 1548, is the better reasoned decision.
(Lockley, supra, 91 Cal.App.4th at pp. 884-885).
The particular difficulty which D & S faces in this case is that it has not presented
a prima facie case as to two essential elements of its cause of action for abuse of process;
as noted, the record is devoid of any evidence admissible at trial of malice or of lack of
probable cause. D & S argues that there is evidence of malice “because [Bowen and
Ludlow] continued to pursue the [Bus. & Prof. Code, § 7031] argument after losing on a
demurrer and writ.” While D & S correctly argues that malice may be inferred from
circumstantial evidence and inferences drawn from that evidence, more is required than
just lack of legal tenability of the prior action. (Jay v. Mahaffey (2013) 218 Cal.App.4th
1522, 1543, citing Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494.)
And, D & S’s argument relies exclusively on testimony presented in the reference
proceeding, but that testimony is not admissible by judicial notice for the reasons
discussed above. Without admissible evidence, D & S cannot meet even the threshold
required of it to defeat the anti-SLAPP motion.
In summary, D & S has not met its second prong burden to establish by admissible
evidence its prima facie case of malicious prosecution. The trial court’s reliance on the
truth of the contents of the items proffered by D & S in its request for judicial notice, as
noted above, was clearly contrary to the limited purpose for which such items may be

14
admitted as permitted by Evidence Code section 452, and constituted an abuse of
discretion. The erroneous ruling was clearly prejudicial to Bowen and Ludlow.13
A plaintiff who fails to present admissible evidence that establishes a prima facie
claim to relief on its complaint, fails to meet its burden under the second prong of section
425.16. (Roberts v. Los Angeles County Bar Assn., supra, 105 Cal.App.4th at p. 616.)
That is the circumstance in this case: D & S pinned its evidentiary presentation on
admission for the truth of their contents the transcripts of testimony in the reference
proceeding. That strategy is fatally flawed. As a result D & S did not sustain its burden
under section 425.16. For the reasons discussed, the trial court erred in concluding that
D & S had done so.

13
Resolution of this matter as discussed above moots the need to address any other
contentions raises in the parties’ briefs.
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 DISPOSITION
The order denying appellants’ section 425.16 motion to strike is reversed. The
case is remanded to the superior court with instructions to grant the motion, dismiss the
complaint with prejudice, and determine the issue of appellants’ entitlement to attorney
fees, if any. Appellants are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GOODMAN, J.
We concur:

TURNER, P.J.

MOSK, J.


Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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