Teren v. Abrolat CA2/8

Filed 9/16/20 Teren v. Abrolat CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PAMELA TEREN et al., B295021

Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC713109)
v.

NANCY ABROLAT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County. Dennis Landin, Judge. Affirmed.
EPPS & Coulson, Dawn M. Coulson and Kari A. Keidser for
Defendant and Appellant
Sherman Law Corporation and Lisa Sherman for Plaintiffs
and Respondents.
_____________________________
 For 12 years now, the parties in this case have been
embroiled in an acrimonious dispute over the dissolution of their
law partnership. In the underlying case, Nancy Abrolat sued
Pamela Teren for allegedly stealing partnership clients, but that
case ended in terminating sanctions because Abrolat refused to
sit for a second day of her deposition when ordered to do so.
Abrolat appealed that ruling but dismissed her appeal at the
11th hour. We found the appeal frivolous and imposed
significant sanctions of over $160,000 on Abrolat for pursuing it.
The dispute perhaps could have ended there. But now,
Teren and her law corporation have sued Abrolat for malicious
prosecution and abuse of process. Only the malicious prosecution
claim is at issue here. Abrolat filed an anti-SLAPP motion to
strike it. (Code Civ. Proc., § 425.16; hereafter section 425.16.) In
opposition, Teren submitted a blanket request for judicial notice
of over 4,000 pages of records in the underlying case and other
related cases. In response, Abrolat lodged nine identical blanket
evidentiary objections to all 4,000-plus pages offered by Teren.
The court denied the anti-SLAPP motion.
Neither party properly approached the evidentiary
requirements for Abrolat’s anti-SLAPP motion. Teren’s en masse
request for judicial notice of thousands of court records did little
to carry her burden to show that she had evidence to support her
claims that would be admissible at trial, which is required to
survive an anti-SLAPP motion. For Abrolat’s part, her blanket
objections to the same thousands of pages did nothing to show
that any particular document would be inadmissible at trial.
Ultimately, the trial court relied on only two documents to
conclude Teren’s malicious prosecution claim had minimal merit.
Following the trial court’s lead, we will do the same. We agree

2
those two documents demonstrate Teren’s claim has minimal
merit, so we affirm. Given both parties’ evidentiary failures, we
deny Teren’s motion for sanctions.
BACKGROUND
The basic background facts are not disputed, so we take
them from Teren’s verified complaint and the trial court’s order
denying the anti-SLAPP motion.
Abrolat and Teren dissolved their law partnership in 2008.
Abrolat sued Teren for breach of contract, fraud, and related
claims, alleging Teren stole potential clients from her (the
underlying case). Abrolat had also filed a lien on one of Teren’s
cases (referred to as the “Lefkir case”), which blocked Teren from
receiving any portion of a $495,000 attorney’s fee she earned from
the resolution of the case. Abrolat also froze a $500,000
partnership fee paid on another case (the “DOE case”), which
Teren alleged should have been split between them.
During discovery in the underlying case, Abrolat failed to
appear for her second deposition and refused to comply with two
court orders compelling her appearance. This resulted in the
trial court issuing an order granting Teren’s motion for
terminating sanctions. In that order, the trial court found
(1) Teren’s counsel deposed Abrolat in a first session; (2) around
the same time, Teren discovered evidence Abrolat had been
“spying” on Teren’s computer and filed a Second Amended Cross-
Complaint alleging claims based on that spying; (3) Abrolat
violated two court orders to appear for a second deposition or
provide a doctor’s note under the penalty of perjury excusing her
absence; (4) Abrolat provided no admissible evidence to excuse
her non-appearance; and (5) monetary and terminating sanctions
were warranted.

3
 At the hearing on the sanctions motion, the court noted the
evidence “shows a pattern, practice of delay in this action on the
part of plaintiffs, as well as the willful disobedience of this court’s
order, given the repeated failure to present admissible evidence
showing that Nancy Abrolat suffers from . . . a serious medical
condition that prevents her from sitting for deposition.” The
court dismissed Abrolat’s operative complaint with prejudice and
entered default judgment in Teren’s favor on her cross-complaint.
Abrolat moved for reconsideration of the default judgment,
which the trial court denied. The court found she failed to show
excusable neglect, believing her behavior was “strategic from the
beginning” and was “strategic now.”1
Abrolat appealed the default judgment. (Abrolat v. Teren,
B260471.) We did not resolve the merits because Abrolat
dismissed the appeal before filing her reply brief, resulting in
issuance of the remittitur. We granted Teren’s motion to recall
the remittitur and imposed significant sanctions on Abrolat.
We called her dismissal of the appeal “part of her continued
gamesmanship after she misled Teren into believing she would
file a reply brief, only to then file a request for dismissal without
notice.” We found “little question” her appeal “was frivolous
because ‘ “any reasonable attorney would agree that th[is] appeal
is totally and completely without merit.” ’ ”
We also inferred Abrolat’s true motive was delay:
“[Abrolat] was subject to a substantial default judgment for the

1
Teren attached the transcripts from the hearings on the
motion for terminating sanctions and motion for relief from
default judgment as exhibits to her malicious prosecution
complaint.

4
fees she continuously withheld from Teren, putting a serious
financial strain on Teren. The longer the appeal remained open,
the more serious the strain became and the greater the
advantage to Abrolat. Any doubt about her motive was
eliminated when she waited until the last possible moment and
out of the blue to dismiss the appeal without even a hint of notice
to Teren, thereby cutting off Teren’s ability to file any sanctions
motion.”
We imposed $160,718.92 in sanctions on Abrolat,
representing Teren’s attorney’s fees in litigating the appeal (with
an offset for some fees already paid by Abrolat).2
Teren then filed the verified complaint at issue here
alleging claims for malicious prosecution and abuse of process
based on the underlying case. Abrolat demurred and filed an
anti-SLAPP motion. The court sustained the demurrer for the
abuse of process claim, but overruled the demurrer as to the
malicious prosecution claim. It also denied Abrolat’s anti-SLAPP
motion as to the malicious prosecution claim.
In denying the anti-SLAPP motion, the court granted
Teren’s blanket request for judicial notice, which identified four
“exhibits” that contained over 4,000 pages of records in the
underlying case, the prior appeal, a related bankruptcy case, and
the malicious prosecution case here.3 Abrolat asserted nine
identical blanket evidentiary objections to all 4,000-plus pages,

2
Teren attached a copy of our order in the underlying case
as an exhibit to her malicious prosecution complaint.

3 The trial court also granted Abrolat’s request for judicial
notice of “various court filings,” but the request is not in the
record.

5
claiming every document lacked foundation and was inadmissible
hearsay, incompetent, uncertified, and not subject to judicial
notice. The trial court declined to rule on the objections because
they were not material to its ruling.
On the merits, the court held the malicious prosecution
claim was subject to the anti-SLAPP statute, and Teren
demonstrated a probability of prevailing. As we discuss in more
detail below, the court relied on only two documents in the
record—the order imposing terminating sanctions in the
underlying case; and a 2011 declaration from Laid Lefkir, who
declared the fee agreement he signed with Teren’s law firm after
the parties’ partnership dissolved was the only one he ever
signed.
Abrolat appealed the denial of her anti-SLAPP motion.
DISCUSSION
I. Standard of Review
“ ‘Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.’ ” (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).)
We review de novo the denial of an anti-SLAPP motion. (Ibid.)4

4 Teren argues Abrolat misstated the standard of review.
In Teren’s view, our review is for abuse of discretion because
Abrolat “focuses exclusively [on] the Trial Court’s decision to
overrule Abrolat’s evidentiary objections.” True, Abrolat’s
opening brief focused on her evidentiary objections, but she also
addressed the merits. The trial court did not rule on Abrolat’s

6
 The parties do not dispute Abrolat’s malicious prosecution
claim is subject to the anti-SLAPP statute. (Daniels v. Robbins
(2010) 182 Cal.App.4th 204, 215 (Daniels) [“every claim of
malicious prosecution is a cause of action arising from protected
activity”].) Thus, we address only the second step. To prevail on
her malicious prosecution claim, Teren must show “ ‘ “the prior
action (1) was commenced by or at the direction of the defendant
and was pursued to a legal termination in [the plaintiff’s] favor
[citations]; (2) was brought without probable cause [citations];
and (3) was initiated with malice [citations].” ’ ” (Zamos v.
Stroud (2004) 32 Cal.4th 958, 965, italics omitted.)
The analysis at the second step is “ ‘a “summary-judgment-
like procedure.” [Citation.] The court does not weigh evidence or
resolve conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment. It accepts the plaintiff’s evidence as true,
and evaluates the defendant’s showing only to determine if it
defeats the plaintiff’s claim as a matter of law. [Citation.]
“[C]aims with the requisite minimal merit may proceed.” ’ ”
(Sweetwater, supra, 6 Cal.5th at p. 940.)
II. Plaintiff’s Evidentiary Burden to Show Probability
of Success
Generally, “a plaintiff seeking to demonstrate the merit of
the claim ‘may not rely solely on its complaint, even if verified;
instead, its proof must be made upon competent admissible

objections, and as we explain, they are forfeited for the lack of
specificity. Thus, our review is de novo, and Abrolat’s recitation
of the law was correct.

7
evidence.’ ” (Sweetwater, supra, 6 Cal.5th at p. 940, italics
added.) “The anti-SLAPP statute describes what evidence a court
may consider at the second step. It provides that ‘[i]n making its
determination, the court shall consider the pleadings, and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based.’ ([Code Civ. Proc.,] § 425.16,
subd. (b)(2), italics added.)” (Id. at p. 941.)
Sweetwater addressed two evidentiary issues: the form
evidence must take in opposing an anti-SLAPP motion, and
whether that evidence will be admissible at an eventual trial.
(Sweetwater, supra, 6 Cal.5th at p. 937.) As to form, the court
rejected the notion that affidavits and declarations signed under
penalty of perjury were barred as inadmissible hearsay. The
court explained, “[a]lthough affidavits and declarations constitute
hearsay when offered for the truth of their content, section
425.16, subdivision (b)(2) permits their consideration in ruling on
a pretrial anti-SLAPP motion. . . . These declarations may be
considered, not because they satisfy some other hearsay
exception, but because they qualify as declarations or their
equivalent under [Code of Civil Procedure] section 2015.5,[5] and
can be considered under section 425.16.” (Id. at p. 942.) The
court reached a similar conclusion for recorded testimony given
under oath at a prior proceeding. (Id. at pp. 943–944.)

5 Code of Civil Procedure section 2015.5 essentially provides
that a declaration may serve as an alternative to an affidavit if it
is “signed and recite[s] that the person making it certifies it to be
true under penalty of perjury. The document must reflect the
date and place of execution, if signed in California, or recite that
it is executed ‘under the laws of the State of California.’ ”
(Sweetwater, supra, 6 Cal.5th at p. 941.)

8
 On the issue of admissibility, the court held “evidence may
be considered at the anti-SLAPP motion stage if it is reasonably
possible the evidence set out in supporting affidavits,
declarations or their equivalent will be admissible at trial.”
(Sweetwater, supra, 6 Cal.5th at p. 947.) In other words, “at the
second stage of an anti-SLAPP hearing, the court may consider
affidavits, declarations, and their equivalents if it is reasonably
possible the proffered evidence set out in those statements will be
admissible at trial. Conversely, if the evidence relied upon
cannot be admitted at trial, because it is categorically barred or
undisputed factual circumstances show inadmissibility, the court
may not consider it in the face of an objection. If an evidentiary
objection is made, the plaintiff may attempt to cure the asserted
defect or demonstrate the defect is curable.” (Id. at p. 949.)
Applying Sweetwater in this case is complicated by the
parties’ problematic approaches to the evidence presented to the
trial court. First, as noted, Teren attempted to carry her
evidentiary burden by requesting judicial notice of the entire
court file in the underlying case and related cases. On appeal,
Teren cites hundreds of those pages as substantive proof of her
version of the facts. Undoubtedly, some of those documents could
be substantive proof under Sweetwater if they constitute prior
recorded testimony under oath like declarations or deposition
testimony. But she hasn’t made that particularized showing.
The trial court could properly take judicial notice of “[r]ecords
of . . . any court of this state” (Evid. Code, § 452, subd. (d)), but it
generally could not take judicial notice of the truth of statements
in those records. (See, e.g., Steed v. Department of Consumer
Affairs (2012) 204 Cal.App.4th 112, 120 (Steed).) Thus, the trial
court’s grant of blanket judicial notice established that thousands

9
of pages had been filed. Without a more specific showing, it did
not prove the facts contained in them.
For Abrolat’s part, she asserted nine blanket evidentiary
objections to Teren’s 4,000-plus pages of judicially noticed court
records, arguing they were all inadmissible hearsay, lacked
foundation, were incompetent, were not certified, and were not
subject to judicial notice.6 She did not single out any specific
documents or explain why any particular document would be
inadmissible at trial. This made it impossible for the trial court
to rule on her objections and for us to review any ruling. We
recognize Abrolat’s responsibility for raising specific objections
was complicated by Teren’s blanket request for judicial notice.
Yet, Teren cited many specific pages throughout her opposition to
Abrolat’s anti-SLAPP motion. Abrolat could have at least
attempted to identify the most relevant documents and assert
targeted objections for the trial court’s review. By failing to offer
specific objections, she has forfeited those challenges. (See In re
E.A. (2012) 209 Cal.App.4th 787, 790 [“General objections are
insufficient to preserve issues for review.”].)
Helpfully, the trial court sidestepped both parties’ failures.
It granted judicial notice of the entire underlying record but
relied on only two documents—the order imposing terminating
sanctions and a 2011 declaration from Laid Lefkir made under

6 In passing on appeal, Abrolat renews her argument that
none of the judicially noticed documents were “certified copies”
pursuant to rule 3.1306 of the California Rules of Court. Rule
3.1306 contains no such requirement.

10
penalty of perjury—to deny the anti-SLAPP motion.7 We will do
the same. These two documents demonstrate the “minimal
merit” for Teren’s claim to proceed.8
III. Probability of Prevailing
Again, malicious prosecution requires proof of (1) a
favorable termination; (2) a lack of probable cause; and
(3) malice. (Zamos v. Stroud, supra, 32 Cal.4th at p. 965.)
Abrolat does not address malice on appeal, so we focus on Teren’s
showing as to the first two elements.
When a case is terminated for discovery sanctions, that
termination is favorable if it “ ‘reflect[s] on the merits of the case
and the malicious prosecution plaintiff’s innocence of the
misconduct alleged in the underlying lawsuit.’ ” (Daniels, supra,
182 Cal.App.4th at p. 217.) We must ask whether an inference
can be drawn that the refusal to submit to discovery is “a
concession the claims . . . lacked merit.” (Ross v. Kish (2006)
145 Cal.App.4th 188, 200 (Ross).) “Should a conflict arise as to
the circumstances of the termination, the determination of the
reasons underlying the dismissal is a question of fact.” (Id. at
p. 198.)

7 We don’t know what the court meant when it declined to
rule on Abrolat’s objections because they were not “material” to
the court’s resolution of the anti-SLAPP motion. The objections
were at least potentially material since the court relied on two
documents in Teren’s request for judicial notice. Again, however,
Abrolat’s failure to raise specific objections to these documents
forfeited any evidentiary challenge to them at this stage.

8 For this reason, we need not address Abrolat’s argument
that Teren cannot rely on her verified complaint to demonstrate a
probability of prevailing.

11
 To find the underlying case was terminated in Teren’s
favor, the trial court relied on the order imposing terminating
sanctions against Abrolat and dismissing her case. As noted
above, the order contained findings Abrolat failed to sit for a
second deposition despite two court orders to do so and failed to
offer a valid doctor’s note to excuse her failure. The order also
found that refusal came after Teren discovered evidence Abrolat
had been “spying” on Teren’s computer and filed a Second
Amended Cross-Complaint alleging claims based on that spying.
The trial court here explained these findings formed a
“sufficient basis to infer a lack of evidence for Abrolat’s claims,”
and provided “ample basis to infer that Abrolat’s failure to
comply with the discovery orders is susceptible to a concession
that her claims lack evidence or are invalid. . . . As such, the
dismissal of Abrolat’s case qualifies as a termination in Teren’s
favor.”
Abrolat argues the trial court could take judicial notice that
findings were made in the terminating sanctions order but could
not take judicial notice of their truth. (See Steed, supra,
204 Cal.App.4th at p. 120.) That is correct generally, but Abrolat
does not—and could not—dispute the foundational facts
contained in the order that led to dismissal. In fact, she presents
those same facts in her opening brief on appeal. Specifically,
there is no dispute she sat for one deposition, but did not sit for
another, even after she was ordered to do so twice. There is no
dispute she failed to provide a doctor’s note under penalty of
perjury as the court requested. There is also no dispute over the
timing of her refusal to sit for her deposition, which came after
Teren added claims to her cross-complaint alleging Abrolat was
spying on her computer. Those basic matters were readily

12
verifiable from the underlying record, so they reasonably fell
within the scope of judicial notice. (See Evid. Code, § 452,
subd. (h) [court may judicially notice “[f]acts 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”]; Lockley v. Law Office of
Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th
875, 882 [“The underlying theory of judicial notice is that the
matter being judicially noticed is a law or fact that is not
reasonably subject to dispute.”].)
Abrolat could potentially dispute why she didn’t sit for her
deposition and whether her refusal was justified. She could also
argue against the inference that her failure reflected a belief her
claims lacked merit. But those are issues for the factfinder at a
later stage. For now, the findings in the sanctions order reflected
undisputed events and could support an inference she refused to
sit for her deposition because she believed her claims lacked
merit. If the factfinder were to draw that inference, the
factfinder could conclude the underlying case was terminated in
Teren’s favor.
Ross and Daniels support this result. Each case involved
an anti-SLAPP motion to strike a malicious prosecution claim
when the underlying case was terminated as a discovery
sanction. In Ross, the court held the defendant’s refusal to sit for
his deposition in the underlying case could reasonably be
construed as a concession his claims lacked merit. (Ross, supra,
145 Cal.App.4th at pp. 192, 200.) The court examined the record
and concluded the defendant’s claims actually lacked merit, and
the defendant was a “relatively sophisticated litigant” who was
familiar with the relevant facts. (Id. at p. 200.) In Daniels, the

13
court found a prima facie showing of a favorable termination
because “the record from the underlying action is devoid of any
attempt during discovery to substantiate allegations in the
complaint, and the court’s dismissal is justified by the plaintiff’s
lack of evidence to submit the case to a jury at trial.” (Daniels,
supra, 182 Cal.App.4th at p. 219.)
As Abrolat points out, neither case is exactly on point.
Unlike in Daniels, Abrolat participated in the underlying lawsuit,
sat for one day of a deposition, and responded to some discovery.
Ross is closer—like Abrolat, the Ross defendant responded to
some discovery and participated in the underlying case. But
unlike Abrolat, that defendant “failed to make any showing he
would comply in the future, failed to appear at the motion for
terminating sanctions and failed to file any opposition to the
motion.” (Ross, supra, 145 Cal.App.4th at p. 200). Here, Abrolat
did oppose the sanctions motion, sought reconsideration of the
sanctions order, and appealed. But Abrolat was an attorney, and
a factfinder could infer she was motivated to pursue her case and
fight dismissal not because she thought her claims were valid,
but because she wanted to use the litigation to keep the financial
pressure on Teren through delay. We inferred a similar motive of
delay when we sanctioned Abrolat for pursuing a frivolous
appeal.
Abrolat analogizes to Pattiz v. Minye (1998) 61 Cal.App.4th
822, but it is entirely distinguishable. The defendant’s cross-
complaint was dismissed as a sanction for her incomplete and
disorderly document production as well as her daughter’s failure
to appear for a deposition; the defendant herself appeared for a
deposition and participated in discovery. (Id. at p. 825.) The
court held this was not a favorable termination on the merits

14
because the undisputed facts showed the defendant “did not
abandon the action or refuse to cooperate in discovery. Moreover,
it would be unfair to ascribe a lack of cooperation by [the
defendant] to her daughter’s act of refusing further deposition
due to illness.” (Id. at pp. 827–828.)
Here, the circumstances leading to the terminating
sanctions order could very well support a reasonable inference
Abrolat refused to sit for her deposition because she believed her
claims lacked merit. As in Ross and Daniels, we are satisfied the
terminating sanctions order meets the low bar to overcome
Abrolat’s anti-SLAPP motion.
Turning to probable cause, “ ‘[t]he existence of probable
cause is a question of law to be determined as an objective
matter’ [citation] by deciding whether ‘ “ ‘any reasonable attorney
would agree’ ” ’ that the prior action was ‘ “ ‘totally and
completely without merit’ ” ’ [citation]. ‘ “A litigant will lack
probable cause for his action either if he relies upon facts which
he has no reasonable cause to believe to be true, or if he seeks
recovery upon a legal theory which is untenable under the facts
known to him.” ’ ” (Kinsella v. Kinsella (2020) 45 Cal.App.5th
442, 455.) “ ‘When there is a dispute as to the state of the
defendant’s knowledge and the existence of probable cause turns
on resolution of that dispute . . . the jury must resolve the
threshold question of the defendant’s factual knowledge or
belief.’ ” (Daniels, supra, 182 Cal.App.4th at p. 223.)
For the probable cause element, the trial court considered a
2011 declaration from Teren’s former client Laid Lefkir. Lefkir
declared in pertinent part, “ ‘The fee agreement I signed with
Teren Law Group on October 13, 2008, is the only fee agreement
I have ever signed with any lawyer regarding my Claims. I never

15
retained Abrolat & Teren to represent me and never had any
understanding that Abrolat & Teren represented me.’ ” The trial
court relied on this declaration to find “Teren has created a
triable issue as to whether Abrolat lacked an objectively
reasonable basis for suing Teren for the proceeds from the Lefkir
case.”
Abrolat did not mention, let alone address, the Lefkir
declaration in her opening brief on appeal. She only addressed it
for the first time in her reply brief. She has forfeited any
argument that the trial court improperly relied on it to find a
lack of probable cause. (In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1477–1478 [contentions first raised in
9
reply brief are forfeited].)
On the merits, the Lefkir declaration could support a lack
of probable cause. First, we may consider the declaration under
Sweetwater. Lefkir’s testimony was limited to facts within his
personal knowledge—he only ever signed one fee agreement and

9
In her reply brief, Abrolat also argues Lefkir was only one
client among several that formed the basis for her breach of
fiduciary duty claim. Again, this argument is forfeited for raising
it only in reply. She also has not developed this argument or
cited authority to show how this would justify granting her anti-
SLAPP motion. We note “a suit for malicious prosecution lies for
bringing an action charging multiple grounds of liability when
some but not all of those grounds were asserted with malice and
without probable cause.” (Crowley v. Katleman (1994) 8 Cal.4th
666, 671.) Likewise, “[w]here a complaint identifies a number of
acts of alleged misconduct and theories of recovery, for purposes
of reviewing an anti-SLAPP motion, it is sufficient to focus on
just one.” (Golden State Seafood, Inc. v. Schloss (2020)
53 Cal.App.5th 21, 32.)

16
it was with Teren after dissolution of the partnership. He signed
the declaration under penalty of perjury pursuant to the laws of
California. Under Sweetwater, his declaration is the equivalent
of an affidavit under the anti-SLAPP statute, and Abrolat has
pointed to no substantive categorical bar to his testimony.
If the factfinder were to credit Lefkir’s testimony, that
evidence could show Abrolat’s claim to the Lefkir fees was
meritless and no reasonable attorney would have pursued it.
The factual underpinning for Abrolat’s complaint was the
allegation Teren withheld fee awards in several partnership
matters. Lefkir’s declaration demonstrated his case was never a
partnership matter—he did not retain the partnership and only
signed a fee agreement with Teren. From his testimony, the
factfinder could infer Abrolat knew she had no claim to the fees,
so her complaint was baseless. (Cf. Greene v. Bank of America
(2013) 216 Cal.App.4th 454, 464 (Greene) [crediting plaintiff’s
denials that he threatened to blow up bank to draw inference
bank employee knowingly made false police report].)
Abrolat argues the underlying case had merit because she
filed a summary adjudication motion, her attorney thought her
claims were tenable, and she retained an expert who declared
Teren breached her fiduciary duties. She also points out in her
reply brief that Lefkir had no personal knowledge of any
agreements between her and Teren or the distribution of client
leads that came through partnership marketing efforts. These
points merely create a potential factual dispute. At the anti-
SLAPP stage, we must credit Lefkir’s declaration, which was
sufficient to show the minimal merit necessary on the lack of
probable cause element. (See Greene, supra, 216 Cal.App.4th at
p. 465 [“ ‘When the evidence bearing on the question of probable

17
cause is in conflict, it is the province of the jury to determine
whether facts exist which will warrant or reject an inference of
probable cause.’ ”].)
As to the malice element, Abrolat has not addressed the
trial court’s finding the evidence supported an inference Abrolat
acted with malice. We will not disturb the trial court’s ruling.
Teren has shown the minimal merit necessary to defeat Abrolat’s
anti-SLAPP motion.
IV. Sanctions Motion
We deny Teren’s motion requesting that we impose
sanctions on Abrolat for pursuing a frivolous appeal. Given
Teren’s problematic blanket request for judicial notice, Abrolat’s
appeal was not “ ‘totally and completely without merit.’ ”
(Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32.) Our denial does
not preclude Teren from seeking attorney’s fees pursuant to Code
of Civil Procedure section 425.16, subdivision (c)(1).
DISPOSITION
The order is affirmed. Teren is entitled to costs on appeal.

BIGELOW, P. J.
We Concur:

GRIMES, J. SALTER, J.*

* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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