Filed 10/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MINA LITINSKY, B293968
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC713781)
v.
JAYNE KAPLAN,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County. Joseph Kalin, Judge. (Retired judge of the L.A.
Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of
the Cal. Const.) Affirmed.
Law Office of Leslie S. McAfee and Leslie S. McAfee for
Plaintiff and Appellant.
Nemecek & Cole, Michael McCarthy, Mark Schaeffer and
Vikram Sohal for Defendant and Respondent.
_________________________________
Mina Litinsky appeals from an order striking her claims
against respondent Jayne Kaplan under Code of Civil Procedure
section 425.16 (the anti-SLAPP statute).1
Litinsky was the defendant in a prior lawsuit in which
Kaplan, an attorney, represented the plaintiff. Following the
dismissal of that lawsuit, Litinsky sued Kaplan for malicious
prosecution and intentional infliction of emotional distress, along
with similar claims against Kaplan’s former client and others.2
The trial court granted Kaplan’s motion to strike both of
the claims against her. Because the claims arose from Kaplan’s
prosecution of the prior lawsuit, they met the first requirement
under the anti-SLAPP statute to show protected free speech or
petitioning activity. Litinsky was therefore required to show a
likelihood that she would succeed on her claims, which she failed
to do. Her claim for intentional infliction of emotional distress
was precluded by the litigation privilege (Civ. Code, § 47). And
her claim for malicious prosecution could not succeed because the
evidence showed that Kaplan had probable cause to prosecute the
prior lawsuit against Litinsky on behalf of Kaplan’s client.
We affirm. The only issue that Litinsky raises in this
appeal is the viability of her malicious prosecution claim. We
agree with the trial court that Kaplan had sufficient evidence of
the potential merit of her client’s claims to meet the probable
1Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
2Kaplan brought the anti-SLAPP motion at issue in this
appeal on her own behalf. She is the only respondent on appeal.
2
cause requirement. The evidence came primarily from her client.
While that evidence was contradicted by testimony from the
opposing party and some third parties, it was not indisputably
false. Faced with the choice of accepting the version of events
presented by her client or the version described by the opposing
party, Kaplan appropriately opted to continue advocating for her
client. She could not be liable for malicious prosecution for
making that choice so long as the client’s claims were arguably
meritorious.
BACKGROUND
1. The Prior Lawsuit
In December 2016, Kaplan filed an action in Los Angeles
Superior Court for fraud against Litinsky on behalf of Vadim
Harutyunov. The complaint alleged that in 2004 Litinsky had
promised to pay Harutyunov a 10 percent commission on
purchases of art by persons whom Harutyunov referred to
Litinsky’s art gallery in Denver, Colorado. Harutyunov had
allegedly referred a customer named Armen Petrosyan to
Litinsky’s gallery. Harutyunov claimed that he first learned in
2015 that Petrosyan had purchased art from Litinsky on which a
commission was owed.
Before filing the action, Kaplan was given and reviewed a
document purporting to be a written agreement between
Harutyunov and Litinsky memorializing the 10 percent
commission arrangement (the Commission Agreement). The
Commission Agreement contained the signatures of Litinsky and
Harutyunov, as well as a signature by an attorney, Thomas E.
Kent, approving the agreement “as to form.” The Commission
Agreement stated that it was for the period from June 28, 2004,
to June 28, 2019, and renewable thereafter unless terminated.
3
The copy of the agreement that Kaplan was given contained a
header indicating that it had been faxed on June 28, 2004, from a
telephone number with a Colorado area code.
After Litinsky was served with the complaint, she filed a
motion to quash on the grounds of forum non conveniens and lack
of personal jurisdiction. Kaplan filed an opposition to the motion
supported by declarations from both Harutyunov and Petrosyan.
In his declaration, Harutyunov confirmed that Litinsky had
entered into an agreement with him to pay “a fee for introducing
purchasers” and testified that the agreement had been
memorialized in a written contract drafted by Harutyunov’s
lawyer. Petrosyan testified that he participated in a three-way
telephone conversation with Litinsky and Harutyunov in which
Harutyunov introduced him as a prospective purchaser.
In reply, Litinsky filed a declaration denying that she had
signed the Commission Agreement and denying that she had ever
met or even heard of Harutyunov.
The court denied Litinsky’s motion to quash, finding
“sufficient minimum contacts supporting specific jurisdiction.”
The court found “substantial evidence that Litinsky made
numerous shipments to California to an individual who states
that [Harutyunov] introduced him to Litinsky.” The court
concluded that “[t]he evidence indicates Litinsky purposefully
availed herself of the benefits of the forum by repeatedly doing
business with California residents, shipping art to California, as
well as discussions with California residents relating to the
transactions at issue in this action.”
The action proceeded to discovery. In discovery responses,
Litinsky again denied entering into the Commission Agreement.
She stated that her gallery did not own a fax machine at the time
4
that the Commission Agreement was purportedly faxed from the
Colorado number in the header of the agreement. She explained
that the identified number was actually the telephone number for
her gallery rather than for a fax machine.
In stark contrast, Harutyunov served verified discovery
responses confirming that he had entered into the Commission
Agreement with Litinsky. At his deposition, Harutyunov
testified that Kent was his attorney; Kent had drafted the
Commission Agreement; and Kent sent the agreement to
Litinsky, who signed it and returned it.
Trial in the prior lawsuit was scheduled for February 26,
2018. Shortly before trial Kaplan filed an ex parte application to
continue the trial, which the court granted, on the ground that
Harutyunov had recently undergone heart surgery. Trial was
rescheduled for July 2, 2018.
Shortly before the rescheduled trial date, Kaplan filed
another ex parte request for a continuance on the ground that
Harutyunov was still too ill to participate. The court denied the
request. Following the denial, on the date set for trial, Kaplan
filed a request for dismissal.
2. Kaplan’s Anti-SLAPP Motion
Litinsky filed this action on July 13, 2018, against Kaplan;
Harutyunov and his wife; and Petrosyan and his wife. The
complaint asserted claims against Kaplan for malicious
prosecution and intentional infliction of emotional distress.
Kaplan filed a motion to strike the two claims against her
under section 425.16. The motion was based on the grounds that:
(1) Litinsky’s claims against her arose from a prior lawsuit, which
is petitioning activity that is protected under section 425.16,
subdivision (e); and (2) Litinsky could not establish a probability
5
of success on her claims. Kaplan argued that Litinsky’s claim for
intentional infliction of emotional distress was barred by the
litigation privilege under Civil Code section 47. With respect to
Litinsky’s malicious prosecution claim, Kaplan argued that:
(1) Harutyunov’s voluntary dismissal of the prior action was not a
favorable termination on the merits; (2) Kaplan had probable
cause to file and prosecute the prior action; and (3) Kaplan did
not act with malice.
A. Kaplan’s evidence
In her declaration in support of her motion, Kaplan
described the facts on which she relied for probable cause to
prosecute the action against Litinsky. She explained that she
could not reveal her privileged communications with Harutyunov.
However, she pointed out that: (1) Harutyunov had testified at
his deposition that the Commission Agreement was genuine;
(2) Harutyunov and Petrosyan had provided declarations in
response to Litinsky’s motion to quash, attesting to the validity of
the Commission Agreement with Litinsky; (3) the trial court had
denied Litinsky’s motion in an order that seemed to give credence
to the Harutyunov and Petrosyan declarations; (4) Petrosyan had
provided copies of invoices from Litinsky’s gallery that contained
a fax header with the same number as the fax line on the
Commission Agreement; and (5) Kaplan had retained an expert
who was prepared to testify that the fax header on the
Commission Agreement was genuine.
Kaplan also supported her motion with exhibits, which
included: (1) the filings from the motion to quash; (2) discovery
responses; (3) the invoices from Petrosyan bearing the same fax
header as the Commission Agreement; (4) her expert’s
curriculum vitae; and (5) correspondence with Litinsky’s counsel.
6
B. Litinsky’s evidence
In support of her opposition, Litinsky provided her own
declaration, denying that she had ever heard of Harutyunov prior
to the litigation. She testified that she had sold art works to
Petrosyan, who had then resold them to another person (Raskin)
at very high, above market prices. Raskin successfully sued
Petrosyan for fraud, and Litinsky was a witness in that litigation.
Petrosyan was upset and threatened her.
Although Litinsky had not signed the Commission
Agreement, she recognized the signatures on the agreement as
her own. She examined invoices that she had prepared for
Petrosyan and concluded that her signature on those invoices
were identical to her signature on the Commission Agreement.
She denied that her gallery owned a fax machine in 2004 when
the Commission Agreement was signed.
Litinsky’s counsel, Leslie McAfee, also submitted a
declaration, describing information that he had provided to
Kaplan to show that the Commission Agreement was fraudulent.
In his first conversation with Kaplan, McAfee advised Kaplan
that Litinsky had been a witness in the fraud lawsuit against
Petrosyan, and that Harutyunov was a “cousin or close family
member” of Petrosyan.3 During discovery, McAfee also advised
3 In an apparent contradiction, McAfee also testified that,
at the time of this conversation, he was “unaware of the familial
relationship” between Harutyunov and Petrosyan. In another
apparent contradiction, McAfee stated in his declaration that,
during this initial conversation with Kaplan, Kaplan “denied any
knowledge of Armen Petrosyan” but also said that her client had
“ ‘just discovered’ the sales of art to Armen [Petrosyan] (and his
7
Kaplan of three witnesses who confirmed that Litinsky’s gallery
did not own a fax machine in 2004. One of those witnesses was
deposed. Although Kaplan did not attend the deposition, McAfee
sent Kaplan a copy of the transcript.
McAfee retained a forensic document specialist, Frank
Hicks, who was prepared to offer the opinion that Litinsky’s
signatures on the Commission Agreement were identical to her
signatures on invoices to Petrosyan and had apparently been
copied from those invoices. Hicks also was prepared to testify
that the fax header on the Commission Agreement was crooked
and misaligned from page to page, showing that it had been
copied from another source. McAfee testified that he “conveyed to
Ms. Kaplan all of Mr. Hicks’ expert opinions and the bases for his
opinions.”
McAfee also hired an investigator who located Kent, the
lawyer who had purportedly drafted the Commission Agreement.
Kent told McAfee that he did not draft or sign the agreement.
Kent provided McAfee with a declaration attesting to those facts.
The declaration stated that he first met Harutyunov in 2014 or
2015, ten years after the agreement was signed, when Kent was
working as a paralegal for another attorney.4 McAfee testified
wife, Anna) in 2015.” The contradictions are not material to this
appeal. Consistent with the rule that a court does not resolve
factual conflicts in ruling on an anti-SLAPP motion, we accept
McAfee’s testimony that at some point he advised Kaplan of the
theory that Harutyunov fabricated his claim against Litinsky in
retaliation for Litinsky’s prior testimony against Petrosyan.
4 Litinsky filed Kent’s declaration in support of her
opposition to Kaplan’s anti-SLAPP motion.
8
that he “made the content of Kent’s declaration known to Kaplan
around the first of 2018.”
3. The Trial Court’s Ruling
The trial court found that Litinsky’s claims against Kaplan
arose from protected petitioning activity under section 425.16,
subdivision (e). With respect to Litinsky’s showing on the merits,
the court concluded that Litinsky’s claim for intentional infliction
of emotional distress was barred by the litigation privilege.5
With respect to the malicious prosecution claim, the court
found that there was sufficient evidence to provide probable
cause for maintaining the prior action against Litinsky. The
court concluded that, “[w]hile perhaps [Kaplan’s] evidence was
weak, there was not a total lack of evidence supporting the
authenticity of the [C]omission [A]greement. In other words, the
Court cannot say that any reasonable attorney would agree the
action lacked merit.” The court therefore granted the anti-
SLAPP motion and ordered the claims against Kaplan struck.
DISCUSSION
1. The Anti-SLAPP Procedure
Section 425.16 provides for a “special motion to strike”
when a plaintiff asserts claims 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.”
(§ 425.16, subd. (b)(1).) Such claims must be struck “unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (Ibid.)
5 Litinsky does not challenge either of these rulings on
appeal.
9
Thus, ruling on an anti-SLAPP motion involves a two-step
procedure. First, the “moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
396 (Baral).) At this stage, the defendant must make a
“threshold showing” that the challenged claims arise from
protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056.)
Second, if the defendant makes such a showing, the
“burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.)
Without resolving evidentiary conflicts, the court determines
“whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment.” (Ibid.) The
plaintiff’s showing must be based upon admissible evidence.
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th
204, 212.) The court “considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant (§ 425.16,
subd. (b)(2)); though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should
grant the motion if, as a matter of law, the defendant’s evidence
supporting the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim.” (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821 (Wilson).) Thus, the second
step of the anti-SLAPP process “establishes a procedure where
the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the
litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180, 192.)
10
An appellate court applies a de novo standard of review to
the grant or denial of an anti-SLAPP motion. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1067.)
Litinsky’s malicious prosecution claim arises from the prior
lawsuit that Kaplan prosecuted against her. She does not
dispute that this prior lawsuit amounted to petitioning activity
that is protected under section 425.16, subdivision (e). Thus, on
this appeal we consider only the second step of the anti-SLAPP
procedure as applied to Litinsky’s claim.
2. Malicious Prosecution and the Attorney-client
Relationship
To establish a cause of action for malicious prosecution, “a
plaintiff must demonstrate ‘that the prior action (1) was
commenced by or at the direction of the defendant and was
pursued to a legal termination in his, plaintiff’s, favor [citations];
(2) was brought without probable cause [citations]; and (3) was
initiated with malice [citations].’ ” (Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal.3d 863, 871 (Sheldon Appel), quoting Bertero
v. National General Corp. (1974) 13 Cal.3d 43, 50.) Our Supreme
Court has explained that “[a]lthough the malicious prosecution
tort has ancient roots, courts have long recognized that the tort
has the potential to impose an undue ‘chilling effect’ on the
ordinary citizen’s willingness to report criminal conduct or to
bring a civil dispute to court, and, as a consequence, the tort has
traditionally been regarded as a disfavored cause of action.”
(Sheldon Appel, at p. 872.)
In Sheldon Appel, the court adhered to these “traditional
limitations on malicious prosecution recovery” in defining the
probable cause element of the tort. (Sheldon Appel, supra, 47
11
Cal.3d at pp. 873–874.) The court explained that analyzing
whether probable cause existed for a prior lawsuit “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.” (Sheldon
Appel, supra, 47 Cal.3d at p. 878.) Whether a claim was legally
tenable is determined by applying the same standard that
governs whether an appeal is frivolous: The question is “whether
any reasonable attorney would have thought the claim tenable.”
(Id. at pp. 885–886, citing In re Marriage of Flaherty (1982) 31
Cal.3d 637, 650.) The court concluded that this standard would
best reflect “the important public policy of avoiding the chilling of
novel or debatable legal claims.” (Sheldon Appel, at p. 885.)
Additional policies come into play when a malicious
prosecution action is brought against a lawyer who prosecuted a
prior action. Unless a lawyer discovers that his or her client has
provided false information, the lawyer is generally entitled to rely
on information from his or her client in filing or prosecuting a
lawsuit. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 223
(Daniels).) That reliance is grounded on the attorney’s duty to
act as an advocate on behalf of his or her client. (See Marijanovic
v. Gray, York & Duffy (2006) 137 Cal.App.4th 1262, 1272, fn. 5
(Marijanovic) [noting that “it could well constitute malpractice
for an attorney to drop a lawsuit, for which supporting evidence
existed, merely because opposing counsel asserted the action was
baseless”].)
Whether there was probable cause for a prior lawsuit is
ultimately a question of law for the court to decide. (Sheldon
Appel, supra, 47 Cal.3d at p. 881.) Where there is a dispute
12
about the defendant’s knowledge and “the existence of probable
cause turns on resolution of that dispute,” a jury must resolve the
“threshold question of the defendant’s factual knowledge or
belief.” (Ibid.) However, “when the state of the defendant’s
factual knowledge is resolved or undisputed, it is the court which
decides whether such facts constitute probable cause or not.”
(Ibid.)
3. Litinsky Failed to Show that Kaplan Lacked
Probable Cause to Prosecute Her Client’s Claim
A. The trial court correctly analyzed the
evidence of probable cause under the rules
governing the second step of the anti-
SLAPP procedure
Litinsky makes several arguments attacking the process
the trial court used to evaluate the evidence of probable cause.
Our review is de novo, and we therefore need not defer to the
trial court’s analysis. We nevertheless address Litinsky’s
arguments to dispel several procedural misconceptions on which
they are based.
Litinsky first argues that it is a question of fact whether
the evidence of fraud that she submitted in support of her
opposition to Kaplan’s anti-SLAPP motion established
“unequivocal evidence for Kaplan to doubt the credibility of her
client.” Litinsky claims that the “very existence of this factual
assertion in the opposition to the anti-SLAPP motion was a
sufficient showing . . . to defeat the motion.”
This argument is wrong for two reasons. First, it
incorrectly assumes that whether the evidence was “unequivocal”
in showing that Kaplan’s client was lying was an issue for the
jury. Unequivocal evidence of fraud is another way of saying that
13
no reasonable attorney would have believed that Harutyunov had
a legitimate claim. As mentioned, the existence of probable cause
is an issue of law that the court decides. The trial court could not
resolve disputed issues of fact in ruling on Kaplan’s anti-SLAPP
motion, but it could, and properly did, decide issues of law based
upon the facts presented to it, while accepting as true the
admissible evidence that Litinsky presented for purposes of the
motion. (Wilson, supra, 28 Cal.4th at p. 821; Overstock.com, Inc.
v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.)
Second, the argument assumes that the evidence of fraud
was “unequivocal” if the only evidence contradicting it was the
testimony of Kaplan’s client. That is incorrect.
As discussed above, a lawyer is generally entitled to rely on
information from his or her client. (Morrison v. Rudolph (2002)
103 Cal.App.4th 506, 512–513 (Morrison).) A lawyer may not do
so if he or she knows the client is not telling the truth, but a
lawyer is not charged with such knowledge simply because an
opposing party offers evidence of a different version of events. As
discussed below, Kaplan had evidence suggesting that Litinsky
might be lying in denying that she entered into the Commission
Agreement. While not overwhelming, that evidence was
sufficient to create a possibility of success.
Faced with competing versions of the facts offered by
Litinsky and Harutyunov, Kaplan could accept Harutyunov’s
version, even if she thought Litinsky was more likely to prevail.
As our Supreme Court has explained, “A litigant or attorney who
possesses competent evidence to substantiate a legally cognizable
claim for relief does not act tortuously by bringing the claim, even
if also aware of evidence that will weigh against the claim.
Plaintiffs and their attorneys are not required, on penalty of tort
14
liability, to attempt to predict how a trier of fact will weigh the
competing evidence, or to abandon their claim if they think it
likely the evidence will ultimately weigh against them. They
have the right to bring a claim they think unlikely to succeed, so
long as it is arguably meritorious.” (Wilson, supra, 28 Cal.4th at
p. 822.)
Litinsky also suggests that the trial court erred by even
considering the evidence Kaplan submitted. Litinsky argues that
“the facts set forth by [Litinsky] in opposition to the anti-SLAPP
necessarily were at issue and NOT the claimed facts known by
Kaplan. If the facts asserted by [Litinsky] in opposition to the
anti-SLAPP would, if credited, support her claim that the
continued prosecution lacked probable cause, then [Litinsky] had
met her burden in defeating the anti-SLAPP motion.”
Litinsky is correct that factual conflicts between her
evidence and Kaplan’s evidence must be resolved in Litinsky’s
favor. But the trial court was not required to disregard Kaplan’s
evidence where no such conflict existed. To the contrary: In
ruling on an anti-SLAPP motion, a trial court is to consider the
evidentiary submissions “of both the plaintiff and the defendant.”
(Wilson, supra, 28 Cal.4th at p. 821; see § 425.16, subd. (b)(2)
[“the court shall consider the pleadings, and supporting and
opposing affidavits”].) Thus, a court may accept uncontradicted
factual assertions in a moving party’s declarations. (Cf. Trujillo
v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636
[a moving party’s uncontradicted declarations, even if self-
serving, may provide the basis for summary judgment].)
For example, for purposes of Kaplan’s anti-SLAPP motion
we must accept Litinsky’s testimony that she did not sign the
Commission Agreement and she did not fax a copy of the
15
agreement to Kent or Harutyunov. However, the trial court could
also accept Kaplan’s uncontradicted testimony that she had
invoices from Litinsky’s gallery that contained the same fax
number as the copy of the Commission Agreement, and that
Harutyunov consistently maintained that the Commission
Agreement was genuine. Thus, for purposes of the anti-SLAPP
motion, the trial court could both accept Litinsky’s claim that the
Commission Agreement was actually fraudulent and also accept
Kaplan’s testimony concerning the facts she knew indicating that
the agreement might be genuine.
B. The evidence available to Kaplan showed
that her client’s claim was arguably
meritorious
Kaplan provided uncontradicted evidence that:
(1) Harutyunov testified in a declaration submitted in opposition
to Litinsky’s motion to quash service of process that he had
entered into the Commission Agreement with Litinsky;
(2) Harutyunov similarly stated under oath in discovery
responses and during his deposition that he had entered into the
Commission Agreement with Litinsky and had referred
Petrosyan to her gallery; (3) Petrosyan provided Kaplan with
invoices from Litinsky’s gallery concerning his purchases;6
(4) some of those invoices showed that they were faxed from the
same number that appeared on a fax line on the Commission
Agreement; (5) Petrosyan submitted a declaration in opposition
to Litinsky’s motion to quash stating that Harutyunov introduced
6
In fact, there is no dispute that Petrosyan actually did
make purchases from Litinsky’s gallery.
16
him to Litinsky during a three-way telephone conversation with
Litinsky before he purchased art from her; and (6) Kaplan had
retained an expert witness who was prepared to testify that the
fax headers on the Commission Agreement were genuine.7
Although hardly overwhelming in light of the evidence
supporting Litinsky’s version of events, this evidence was at least
sufficient to show that a jury might ultimately believe
Harutyunov rather than Litinsky.
Citing Arcaro v. Silva & Silva Enterprises Corp. (1999) 77
Cal.App.4th 152 (Arcaro), Litinsky argues that Kaplan lacked
probable cause to prosecute Harutyunov’s lawsuit against her
because Litinsky provided Kaplan with “uncontroverted,
verifiable evidence” that the signatures of Litinsky and Kent on
the Commission Agreement were fraudulent. In Arcaro, an
accountant’s former client forged the accountant’s signature and
used the accountant’s social security number to obtain a credit
line with a hardware store. (Id. at p. 154.) When the store’s
collection agency (Hammer) attempted to collect from the
accountant on an outstanding debt, the accountant, Arcaro, told
Hammer that the signature on the account was not his and
identified the person who likely had forged it. After Hammer
filed suit against Arcaro, Arcaro’s attorney offered handwriting
exemplars to prove the fraud. The lawsuit was later dismissed,
7 Litinsky asserts that Kaplan’s expert was not qualified to
offer that opinion. However, the expert’s curriculum vitae shows
research experience in the history of fax machines and
“fraudulent and frothy firms in emerging technologies.” Litinsky
cites no evidence supporting the conclusion that the expert would
have been precluded from offering an opinion at trial.
17
and Arcaro sued successfully for malicious prosecution. (Id. at
pp. 155–156.)
On appeal, the court affirmed the trial court’s finding that
Hammer lacked probable cause to file its action against Arcaro.
The court noted that Arcaro had denied that he signed the credit
agreement and also provided the name of the person who likely
had forged his signature along with an explanation for how that
person had acquired Arcaro’s personal information. (Arcaro,
supra, 77 Cal.App.4th at p. 157.) Arcaro further provided
exemplars of his signature that “no reasonable person” could
conclude resembled the signature on the credit application.
(Ibid.) The court concluded that Hammer lacked probable cause
to file the action against Arcaro because it had no evidence that
would permit it to prevail on its burden to authenticate Arcaro’s
signature. (Id. at pp. 157–159.)
Unlike in Arcaro, here Kaplan did have evidence
supporting her client’s claim. As discussed above, she had
testimony from both Harutyunov and Petrosyan supporting the
claim. She also had the opinion of an expert witness and
documentary evidence supporting the conclusion that the fax line
on the Commission Agreement was genuine. And, unlike the
signature at issue in Arcaro, the signatures of Litinsky and Kent
on the Commission Agreement were not forgeries on their face;
Litinsky’s claim was that the signatures were real but were
copied and pasted from another source.8
8 Indeed, the basis for Litinsky’s expert opinion that her
signatures were fraudulent was apparently that they were too
similar to the genuine signatures from which they were allegedly
copied.
18
Kaplan was not obligated to drop her client’s claim simply
because her litigation opponent claimed that Kaplan’s client was
lying. Indeed, to do so might have been inconsistent with her
professional obligations. (See Marijanovic, supra, 137
Cal.App.4th at p. 1272, fn. 5.)
Litinsky cites Kent’s declaration as confirmation from a
third party that the Commission Agreement was fraudulent. For
purposes of the anti-SLAPP motion, we credit McAfee’s testimony
that he discussed the contents of Kent’s declaration with Kaplan
in early 2018.
However, Kaplan testified that she did not believe McAfee’s
representations about the declaration. Kaplan was not required
to simply accept McAfee’s description of the declaration. Her
reticence to do so was supported by McAfee’s refusal to provide
her with a copy of the declaration. Litinsky acknowledges in her
brief that she did not provide that declaration to Kaplan until a
week before the July 2, 2018 trial. Kaplan submitted evidence of
e-mail correspondence in which McAffee told Kaplan that she
should “[d]o your own homework—both for Mr. Ken’t’s [sic] phone
number and for any other documents that are work-product
protected. . . . I don’t want this resolved; I want to go to trial so I
can get a perjury finding against your client and a judgment
against same that I can proceed with. . . . I felt it was professional
courtesy to continue to warn you about your client—you have
chosen to ignore the same. I am not required to ‘show my hand’
before trial just to prove to you what due diligence conducted by
you would show you.” Moreover, Kaplan testified that, after her
conversation with McAfee about the Kent declaration, she located
Kent’s signature on a bankruptcy filing (which she also filed as
19
an exhibit to her motion), and that signature appeared to match
Kent’s signature on the Commission Agreement.
Critically, unlike the collection agency named as a
defendant in Arcaro, Kaplan is a lawyer who was obligated to
represent her client. The same court that decided Arcaro
subsequently observed that the collection agency’s attorneys in
that case were not defendants in the malicious prosecution
action. The court explained that “Arcaro contains no hint that
the attorneys lacked probable cause to file suit based on the facts
known to them. To the contrary, Arcaro suggests the attorneys
were entitled to rely on the genuineness of Arcaro’s signature on
the guarantee and had no duty to investigate before filing suit.”
(Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 627
(Swat-Fame), citing Arcaro, supra, 77 Cal.App.4th at pp. 158–
159.)9
Other cases similarly hold that an attorney may rely upon
information supporting a client’s claim unless the information is
indisputably false. (See Morrison, supra, 103 Cal.App.4th at
p. 513 [lawyers could reasonably rely on client’s “account of
misrepresentation, reliance, and ensuing damages”]; Marijanovic,
9 In Swat-Fame, the court held that the plaintiff’s attorneys
were not put on notice of any “specific fatal flaw” in their client’s
case based on a “boilerplate denial of the facts” by opposing
counsel, and they therefore had probable cause to file a lawsuit.
(Swat-Fame, supra, 101 Cal.App.4th at p. 627.) The court also
held that, if probable cause exists at the inception of a lawsuit, a
lawyer cannot be liable for malicious prosecution for continuing
to prosecute the lawsuit. (Id. at pp. 627–629.) That portion of
the court’s holding was subsequently disapproved in Zamos v.
Stroud (2004) 32 Cal.4th 958, 973.
20
supra, 137 Cal.App.4th at pp. 1271–1272 [probable cause to
pursue indemnification lawsuit against a subcontractor was not
negated by the subcontractor’s “bald assertion” that the scope of
his work was limited]; Antounian v. Louis Vuitton Malletier
(2010) 189 Cal.App.4th 438, 453–454 [discovery of mistakes in
investigative reports did not negate probable cause to continue
the prosecution of a counterfeiting lawsuit where other evidence
of counterfeiting remained]; compare Daniels, supra, 182
Cal.App.4th at p. 224 [factual dispute existed on the issue of
probable cause where it was unclear whether the client
personally witnessed alleged defamation and there was an
“absence of any witnesses, documents, or other evidence” in
support of the client’s allegations].)
Finally, Litinsky argues that Kaplan lacked probable cause
to prosecute Harutyunov’s claim because Kaplan did not
adequately investigate the facts underlying the claim after
Litinsky denied entering into the Commission Agreement. That
argument is inconsistent with the rule that probable cause is
analyzed based on the facts known to the defendant, not on the
adequacy of an attorney’s investigation or research. In Sheldon
Appel, our Supreme Court explained that once a trial court finds
that the filing of a prior action was objectively reasonable based
upon the facts known to the malicious prosecution defendant,
“the court has necessarily determined that the malicious
prosecution plaintiff was not subjected to an unjustified lawsuit.
When the court has made such a determination, there is no
persuasive reason to allow the plaintiff to go forward with its tort
action even if it can show that its adversary’s attorney did not
perform as thorough an investigation or as complete a legal
research job as a reasonable attorney may have conducted.”
21
(Sheldon Appel, supra, 47 Cal.3d at p. 883; see Ecker v. Raging
Waters Group, Inc. (2001) 87 Cal.App.4th 1320, 1331 [“Whether
the malicious prosecution defendant conducted a sufficient or
adequate investigation is legally irrelevant to the probable cause
determination”].)10
Based upon the facts she knew, Kaplan had probable cause
to prosecute Harutyunov’s lawsuit against Litinsky. Litinsky
10 In Arcaro, the court stated that “when a party is put on
notice a fundamental element of its case is disputed, it should not
proceed without evidence sufficient to support a favorable
judgment on that element or at least information affording an
inference such evidence can be obtained.” (Arcaro, supra, 77
Cal.App.4th at pp. 158–159.) The statement must be viewed in
light of the court’s holding. The critical element of the holding in
Arcaro was that, in light of the information that Arcaro provided
about the fraudulent nature of his purported signature on the
credit application, without further investigation the plaintiff
collection agency did not have sufficient evidence that could
support a judgment in its favor. Thus, in Arcaro the plaintiff
simply did not have probable cause to file an action based on the
information that it already knew. As discussed above, that is not
the case here. We do not understand Arcaro to suggest that
probable cause may be absent if a plaintiff’s lawyer does not
perform an adequate investigation whenever an opposing party
disputes some element of the plaintiff’s claim. Such a reading
would be inconsistent with Sheldon Appel. (See Sheldon Appel,
supra, 47 Cal.3d at p. 883.) Our interpretation is also consistent
with the court’s subsequent explanation in Swat-Fame that
Arcaro presented “unusual circumstances,” and that “[n]ormally,
the adequacy of a prefiling investigation is not relevant to the
determination of probable cause.” (Swat-Fame, supra, 101
Cal.App.4th at p. 627.)
22
therefore failed to meet her burden in opposing Kaplan’s anti-
SLAPP motion to show a probability of success on her malicious
prosecution claim.11
4. The Trial Court’s Evidentiary Rulings Do Not
Provide a Ground for Reversal
Litinsky argues that the trial court erred in overruling all
her objections to Kaplan’s declaration. We review a trial court’s
decision to admit or exclude evidence under an abuse of
discretion standard. (Morrow v. Los Angeles Unified School Dist.
(2007) 149 Cal.App.4th 1424, 1444.) “ ‘The burden is on the party
complaining to establish an abuse of discretion, and unless a
clear case of abuse is shown and unless there has been a
miscarriage of justice a reviewing court will not substitute its
opinion and thereby divest the trial court of its discretionary
power.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566,
quoting Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348–349;
see Evid. Code, § 353.)
A miscarriage of justice from the alleged erroneous
admission of evidence is found only when “the appellate court,
after examining all the evidence, is of the opinion that ‘ “it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.” ’ ”
(Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455, quoting
Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
Litinsky’s brief includes only a lengthy list of her objections
to Kaplan’s declaration and the claimed reasons why the
11In light of our decision on this issue, we need not
consider Kaplan’s additional argument that Litinsky failed to
provide sufficient evidence of malice.
23
identified testimony was inadmissible. Litinsky does not provide
any argument or citations showing that any particular
evidentiary ruling was prejudicial. Other than the conclusory
statement that the trial court “clearly weighed and applied”
Kaplan’s declaration in its ruling, Litinsky does not provide any
explanation of why the trial court’s ruling would likely have been
different in the absence of particular testimony that she claims
was inadmissible. She has therefore failed to identify any
grounds for reversal. (See Evid. Code, § 353.)
Nor do we see any ground to conclude that the trial court
abused its discretion in overruling Litinsky’s objections. Many of
Litinsky’s arguments in support of her objections on appeal
simply attack the credibility of Kaplan’s statements. Such
arguments go only to the weight of Kaplan’s testimony, not its
admissibility.
Litinsky’s relevance objections to testimony about Kaplan’s
state of mind were also not well taken. Kaplan’s knowledge of
particular facts was relevant to the element of probable cause,
and her subjective belief in the merits of Harutyunov’s claim was
relevant to the element of malice. (See Sheldon Appel, supra, 47
Cal.3d at pp. 880–881.)
The trial court also acted within its discretion in rejecting
Litinsky’s objections that particular testimony lacked foundation
or offered a legal conclusion. Some of Kaplan’s statements were
conclusory (e.g., “I had probable cause to file and maintain the
Underlying Action on behalf of [Harutyunov]”). However, such
statements were in the nature of a summary or introduction to a
more specific factual discussion. Moreover, “[t]estimony in the
form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be
24
decided by the trier of fact.” (Evid. Code, § 805.) We see no basis
for reversal based upon the trial court’s evidentiary rulings.
DISPOSITION
The trial court’s order striking Litinsky’s claims against
Kaplan is affirmed. Kaplan is entitled to her costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
25