Chavez v. Dhaliwal CA1/2

Filed 10/30/20 Chavez v. Dhaliwal CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION TWO

MARCO CHAVEZ et al.,
Plaintiffs and Appellants, A157516
v.
RATTAN DEV. S. DHALIWAL et al., (Alameda County
Defendants and Respondents. Super. Ct. No. HG18921459)

This appeal concerns a SLAPPback action under Code of Civil
Procedure section 425.18,1 that is, a malicious prosecution action arising from
the filing of a prior lawsuit that was dismissed pursuant to a special motion
to strike under section 425.16. The tortuous path of this case has its origins
in a landlord/tenant dispute over a lease of space in a commercial building in
Santa Clara County. There are multiple parties who have nuanced
relationships on each side, but we will introduce the litigation history by
describing the sides simply as landlord and tenant.
In that simplified framework, landlord filed and dismissed without
prejudice two unlawful detainer actions against tenant in Santa Clara

Unless otherwise indicated, all statutory references are to the Code of
1

Civil Procedure.

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County Superior Court. A few months later, landlord filed a third unlawful
detainer action. The day before landlord’s summary judgment motion was
set for hearing, tenant filed a complaint against landlord for malicious
prosecution and seven other causes of action. The trial court granted
summary judgment to landlord in the unlawful detainer action. The
litigation on the malicious prosecution complaint then proceeded; eventually,
after two anti-SLAPP rulings in favor of landlord, tenant’s malicious
prosecution complaint was dismissed in its entirety.
The saga continued in Alameda County Superior Court when landlord
then filed its own malicious prosecution complaint against tenant, as well as
the law firm (and two attorneys from that firm) who had represented tenant
in the first malicious prosecution case—a classic SLAPPback action. One of
the named defendant attorneys (Aliah A. Abdo) responded by filing her own
special motion to strike. The trial court granted Abdo’s motion on the ground
that, as to her, landlord had not met its burden of showing the underlying
lawsuit was initiated with malice. The trial court entered a judgment of
dismissal in favor of Abdo, and this appeal followed. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
From 2002 to 2017, Friendly Wholesalers of California, Inc. (Friendly)
leased space in a commercial building in San Jose, California (property). In
about 2007, a limited liability company known as 2205-2213 Ringwood LLC
(Ringwood) purchased the property and was assigned the lease. Ringwood
hired Chavez Management Group, Inc. (CMG) to manage the property.
Subsequent written amendments and addenda to the lease were entered into
between Ringwood and Friendly, with Marco Chavez signing as manager for
Ringwood and Jalal Shreim signing as owner of Friendly.

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A. Unlawful Detainer Actions
In April 2017, CMG filed an unlawful detainer action, naming Friendly
and two other entities as defendants. The complaint alleged that Friendly
and the other entities continued in possession of the property without
permission. It alleged that there was a “written assignment” from Ringwood
for CMG “to sue and take the property back in its own name.” According to
CMG, the unlawful detainer action was prompted by Friendly’s illegal
sublease of the premises to those entities. According to Friendly, the
sublease had been approved by CMG. The action was voluntarily dismissed
by CMG two months later.
In June 2017, CMG filed a second unlawful detainer action against
Friendly, this time adding a third entity but making the same allegation that
Friendly and the other entities continued in possession of the property
without permission and that CMG was entitled to recover the property. This
action was also voluntarily dismissed by CMG three months later. According
to CMG’s attorney, it was dismissed because Friendly filed a petition for
bankruptcy.
In October 2017, CMG filed a third unlawful detainer action against
Friendly. CMG moved for summary judgment, arguing that Friendly owed
$39,498.72 in rent and had failed to tender the rent pursuant to a three-day
notice to pay rent or quit. The motion was granted after hearing, and
judgment was entered against Friendly.
B. The Underlying Complaint for Malicious Prosecution
in Santa Clara County
On November 16, 2017, the day before the summary judgment hearing
in the third unlawful detainer action, Friendly and Shreim filed a complaint
in Santa Clara County (Santa Clara complaint) against Marco Chavez,

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George Chavez,2 CMG and Ringwood. The complaint asserted eight causes of
action: (1) malicious prosecution; (2) breach of contract; (3) breach of the
implied covenant of good faith and fair dealing; (4) intentional interference
with contractual relations; (5) negligent interference with contractual
relations; (6) intentional interference with prospective economic advantage;
(7) negligent interference with prospective economic advantage; and (8)
violation of California’s Unfair Competition Law. (Bus. & Prof. Code,
§ 17200.) The complaint alleged that the first two unlawful detainers actions
were “frivolous” and “malicious” because Friendly’s sublease was authorized,
and Friendly’s attempts to pay rent had been rejected. It alleged that Marco
and George Chavez, CMG and Ringwood had breached “various contracts”
with Friendly and Shreim, and had interfered with the business relationship
that Friendly and Shreim had with their subtenant, as well as a business
relationship that Friendly and Shreim had with third party Everest
California (Everest). The caption page of the Santa Clara complaint
identifies Rattan Dev S. Dhaliwal and Aliah A. Abdo of the Dhaliwal Law
Group, Inc. (DLG) as attorneys for Friendly and Shreim. The typed signature
line at the end of the complaint identifies Dhaliwal as the attorney for
Friendly and Shreim. But it appears that Abdo provided the handwritten
signature above that signature line, signing “for” Dhaliwal.
On December 21, 2017 and January 5, 2018, respectively, Marco and
George Chavez, CMG and Ringwood filed two special motions to strike the
Santa Clara complaint under the anti-SLAPP statute: one to dismiss the
claims brought by Shreim, and the other to dismiss the claims brought by
Friendly. The trial court granted the motions on March 19, 2018 and June

2 George Chavez and Marco Chavez were each alleged to own and
control CMG and Ringwood.

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13, 2018, respectively, concluding that Friendly and Shreim had not
established a probability of prevailing on the merits of their claims. On the
malicious prosecution claim, the trial court found that Shreim did not have
standing because he was not a party in the unlawful detainer actions, and
Friendly had not shown the actions were initiated without probable cause or
with malice. On the contractual claims, the trial court found that Shreim
and Friendly had not shown they were parties to any contracts with Marco
and George Chavez, and CMG. On the interference claims, the trial court
found Shreim did not show he had a relationship with any third parties, and
neither Shreim nor Friendly presented evidence of any interference with
those relationships. DLG did not contest the tentative rulings and did not
make an appearance at either hearing.3
C. Plaintiffs File Their Own Complaint for Malicious Prosecution
in Alameda County
In September 2018, Marco Chavez, George Chavez, CMG and
Ringwood (plaintiffs) filed their own complaint for malicious prosecution in
Alameda County Superior Court (Alameda complaint), naming Friendly,
Shreim, the DLG law firm, and attorneys Dhaliwal and Abdo as defendants.4
The complaint alleged that the defendants participated in a “wrongful and
malicious scheme” to use the Santa Clara complaint as a “bargaining chip” to
settle the third unlawful detainer action. Plaintiffs alleged that, having filed
the Santa Clara complaint, attorney Dhaliwal appeared at the summary
judgment hearing, discussed plaintiffs’ exposure on the Santa Clara

3As we will discuss, Abdo declares that she resigned from DLG in
February 2018—after the special motions to strike were filed, but before the
rulings on the motions.
4Defendants Friendly, Shreim, DLG, and Dhaliwal are not parties to
this appeal.

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complaint, and made multiple proposals to plaintiffs’ counsel regarding a
“global settlement” of both cases.
Abdo filed a special motion to strike the Alameda complaint under the
anti-SLAPP statute. Abdo argued that the plaintiffs could not demonstrate a
probability of prevailing on their malicious prosecution claim as to her.
After extensive briefing and argument, the trial court granted Abdo’s
special motion to strike in a lengthy written decision. First, the trial court
explained in detail why it was “not clear that Plaintiffs have met their
burden of showing a probability of prevailing on the element that the
underlying lawsuit ‘was litigated without probable cause.’ ” But regardless of
their showing on probable cause, the trial court determined that “Plaintiffs
have not met their burden of introducing evidence supporting the element
that the underlying lawsuit ‘was initiated with malice’ as it pertains to Ms.
Abdo.” It found that “Plaintiffs introduced no evidence as to Ms. Abdo’s
subjective intent in connection with the underlying action, or even evidence
as to her actual participation in drafting or filing the complaint in the
underlying action. Instead, the only evidence as to her role is that her name
appears as the second name in the caption of the pleading, below the name of
Mr. Dhaliwal.”
On May 30, 2019, the trial court entered judgment dismissing the
Alameda complaint against Abdo.
DISCUSSION
I. ARGUMENTS ON JURISDICTION
Before we turn to the merits of the appeal, we address Abdo’s
arguments that we lack jurisdiction to decide it.
The Alameda complaint is a “SLAPPback” action, defined in the statute
as “any cause of action for malicious prosecution or abuse of process arising

6
from the filing or maintenance of a prior cause of action that has been
dismissed pursuant to a special motion to strike under Section 425.16.”
(§ 425.18, subd. (b)(1).) The complaint is a SLAPPback because it asserts a
cause of action for malicious prosecution based on the filing of the Santa
Clara complaint, and the Santa Clara complaint was subsequently dismissed
pursuant to plaintiffs’ special motions to strike under the anti-SLAPP
statute.
A motion to strike a SLAPPback action is subject to special rules for
appellate review that differ from the rules applicable to anti-SLAPP motions
generally. Under section 425.18, subdivision (c), an order granting or
denying a special motion to strike a SLAPPback is not directly appealable. If
a trial court denies the special motion to strike a SLAPPback or grants the
motion “as to some but less than all causes of action alleged in a complaint,”
section 425.18, subdivision (g) provides that the aggrieved party may petition
for a peremptory writ. Where a trial court grants a special motion to strike a
SLAPPback that disposes of all causes of action, the aggrieved party may
seek a judgment of dismissal and then appeal from that judgment. (§ 904.1,
subd. (a)(1).) Here, the trial court granted Abdo’s motion to strike as to the
only cause of action alleged against her in the Alameda complaint. Plaintiffs
followed the correct procedure by obtaining a judgment of dismissal and filing
a timely notice of appeal from that judgment.
Abdo makes three arguments to the contrary, none of which are
persuasive. First, Abdo argues that plaintiffs’ appeal should be dismissed
because it is untimely. California Rules of Court, rule 8.104(a)(1)(A) provides
that a notice of appeal must be filed within 60 days after the clerk serves a
filed-endorsed copy of the judgment. Here, the clerk served a filed-endorsed
copy of the judgment dismissing plaintiffs’ action against Abdo on May 30,

7
2019. Plaintiffs filed their notice of appeal on June 14, 2019. Plaintiffs filed
a timely notice of appeal.
Second, Abdo argues that plaintiffs’ notice of appeal is “facially
defective” because it only identifies the May 30, 2019 judgment and not the
May 8, 2019 order granting her special motion to strike. As described above,
plaintiffs’ notice of appeal correctly identifies the judgment of dismissal as
the appealable judgment because, under section 425.18, subdivision (c),
plaintiffs cannot directly appeal the motion to strike order.
Third, Abdo argues that plaintiffs’ appeal is procedurally improper
because they failed to file a peremptory writ pursuant to section 425.18,
subdivision (g). As we have described above, this provision is inapplicable
because the trial court’s order on Abdo’s motion to strike disposed of the only
cause of action alleged against her in the SLAPPback action.
Having rejected Abdo’s three arguments regarding jurisdiction, we now
turn to the merits of plaintiffs’ appeal.
II. ARGUMENTS ON ANTI-SLAPP MOTION
A. Standard of Review
The anti-SLAPP statute is “designed to protect defendants from
meritless lawsuits that might chill the exercise of their rights to speak and
petition on matters of public concern.” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 883–884.) Under the anti-SLAPP statute, a defendant
may file a special motion to strike claims “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).)
Resolution of a special motion to strike requires the court to engage in
the now familiar two-step process. “First, the court decides whether the

8
defendant has made a threshold showing that the challenged cause of action
is one arising from protected activity.” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court finds a showing has been
made under the first step, “it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim.” (Ibid.) We review a
trial court’s order granting an anti-SLAPP motion de novo.5 (Robles v.
Chalilpoyil (2010) 181 Cal.App.4th 566, 573.)
B. First Step: Protected Activity
The first step of the anti-SLAPP analysis requires us to decide whether
plaintiffs’ malicious prosecution claim arises from protected activity. Here,
there is no dispute that Abdo’s initiation of the Santa Clara complaint is
protected activity. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th
728, 735.)
C. Second Step: Probability of Prevailing
The second step of the anti-SLAPP analysis requires us to decide
whether plaintiffs have demonstrated a probability of prevailing on their
malicious prosecution claim. This determination follows a “summary-
judgment-like procedure.” (Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180, 192.) We “consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.”
(§ 425.16, subd. (b)(2).) Looking at those affidavits, “[w]e do not weigh

5 A SLAPPback claim can trigger particular additional requirements
for filing a special motion to strike. (§ 425.18, subds. (c)–(i).) For example, a
special motion to strike “may not be filed against a SLAPPback by a party
whose filing or maintenance of the prior cause of action from which the
SLAPPback arises was illegal as a matter of law.” (§ 425.18, subd. (h).) But
we need not address this requirement because plaintiffs concede that the
filing and maintenance of the Santa Clara County Complaint “cannot be
characterized as ‘illegal as a matter of law’[.]”

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credibility, nor do we evaluate the weight of the evidence. Instead, we accept
as true all evidence favorable to the plaintiff and assess the defendant’s
evidence only to determine if it defeats the plaintiff’s submission as a matter
of law.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699–700.) That is the framework in which we determine
whether plaintiffs have met their required showing, a showing that is “not
high.” (Id. at p. 699.)
The sole cause of action in plaintiffs’ Alameda complaint is for
malicious prosecution. To establish their claim, plaintiffs must plead and
prove that the Santa Clara complaint was (1) commenced by or at the
direction of Abdo and pursued to a legal termination in plaintiffs’ favor; (2)
brought without probable cause; and (3) initiated with malice. (Bertero v.
National General Corp. (1974) 13 Cal.3d 43, 50 (Bertero).)
While their burden may not be “high,” plaintiffs must demonstrate that
their malicious prosecution claim is legally sufficient and supported by a
sufficient prima facie showing. (Hecimovich v. Encinal School Parent
Teacher Organization (2012) 203 Cal.App.4th 450, 469.)
Abdo does not seriously dispute the legal sufficiency of plaintiffs’
malicious prosecution claim, although she emphasizes that pleadings are not
proof, chastises plaintiffs for attempting to rely on allegations and group
pleading as a substitute for admissible evidence, and argues that plaintiffs’
complaint contains “conspiracy allegations” that are “inconsistent” with Civil
Code section 1714.10’s requirement to obtain pre-filing judicial approval to
assert such allegations. These arguments are unpersuasive. (See Olivares v.
Pineda (2019) 40 Cal.App.5th 343, 353, fn. 6 [explaining that the legal
sufficiency threshold is about the adequacy of the allegations supporting the
challenged causes of action]; Alden v. Hindin (2003) 110 Cal.App.4th 1502,

10
1506 [determining that the malicious prosecution cause of action was not
subject to the prefiling approval requisites of section 1714.10].) We agree
with the trial court that the Alameda complaint sufficiently alleges the three
required elements of a malicious prosecution claim.
Instead, this appeal focuses on whether plaintiffs met their burden to
demonstrate a probability that they will prevail on those three elements,
supported by a sufficient prima facie showing made with “competent and
admissible evidence.”6 (Tuchscher Development Enterprises, Inc. v. San Diego
Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236.) We address each
element in turn.
1. Favorable Termination
To determine whether a party has received a favorable termination in
the prior action, we consider the judgment as a whole. (Siebel v. Mittlesteadt
(2007) 41 Cal.4th 735, 741.) “Victory following a trial on the merits is not
required.” (Ibid.) Instead, a favorable termination “ ‘ “must reflect the merits
of the action and the plaintiff’s innocence of the misconduct alleged in the
lawsuit.” ’ ” (Ibid., quoting Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th
336, 342.) For example, a termination is considered favorable where the
court grants summary judgment based on insufficient evidence to establish a
triable issue of fact. (Sierra Club Foundation v. Graham (1999) 72
Cal.App.4th 1135, 1149–1150.)

6 Abdo argues that plaintiffs’ opening brief on appeal improperly
references evidence that the trial court excluded as inadmissible, and that
plaintiffs have waived any challenge to the trial court’s evidentiary rulings.
We need not address these arguments because plaintiffs do not challenge the
evidentiary rulings and our analysis does not rely on any evidence excluded
by the trial court.

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 It is unclear whether Abdo disputes plaintiffs’ showing on this element.
On the one hand, Abdo explains that plaintiffs achieved a “Clear Win” by
prevailing on their anti-SLAPP motions. On the other hand, she states in a
footnote that: “One could even argue that there was no decision on the merits
. . . because the prior that [sic] anti-SLAPP motions filed were granted for
procedural defects and other reasons apart from the merits.” An aside in a
footnote, without any authority, is not sufficient to raise an argument on
appeal. (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947; Cal. Rules of
Court, rule 8.204(a)(1)(B).)
To the extent Abdo actually makes such an argument, we do not find it
persuasive. The Santa Clara complaint identifies Abdo as an attorney in the
caption and appears to be signed by her “for” Dhaliwal. The trial court was
clear that it granted plaintiffs’ anti-SLAPP motions to strike the Santa Clara
complaint because Shreim and Friendly had not shown a probability of
prevailing on the merits of their claims. We readily conclude that plaintiffs
met their burden on favorable termination.
2. Lack of Probable Cause
Plaintiffs argue next that they have met their burden to demonstrate a
likelihood of prevailing on the lack of probable cause element because each of
the causes of action in the Santa Clara complaint was legally untenable, at
least as to some of the parties.
“Where there is no dispute as to the facts upon which an attorney acted
in filing the prior action, the question of whether there was probable cause to
institute that action is purely legal.” (Ross v. Kish (2006) 145 Cal.App.4th
188, 202.). “The resolution of that question of law calls for the application of
an objective standard to the facts on which the defendant acted.” (Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 (Sheldon Appel).) “An

12
action is deemed to have been pursued without probable cause if it was not
legally tenable when viewed in an objective manner as of the time the action
was initiated or while it was being prosecuted.” (Sycamore Ridge
Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402 (Sycamore
Ridge).) “Only those actions that ‘ “any reasonable attorney would agree [are]
totally and completely without merit” ’ may form the basis for a malicious
prosecution suit.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
811, 817 (Wilson), quoting Sheldon Appel, supra, 47 Cal.3d at p. 885.)
“On the other hand, 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, there becomes a fact question that must be
resolved before the court can determine the legal question of probable cause.”
(Medley Capital Corp. v. Security National Guaranty, Inc. (2017) 17
Cal.App.5th 33, 48 (Medley Capital).) In such circumstances, and where
plaintiffs have made a sufficient prima facie showing, their burden to
demonstrate a probability of prevailing on the merits is satisfied. (Id. at pp.
45, 48.)
Probable cause “must exist for every cause of action advanced in the
underlying action. ‘[A]n action for malicious prosecution lies when but one of
[the] alternate theories of recovery is maliciously asserted . . . .’ ” (Soukup v.
Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup), quoting
Bertero, supra, 13 Cal.3d at p. 57, fn. 5.) Plaintiffs argue that Abdo lacked
probable cause on each of the eight causes of action alleged in the Santa
Clara complaint. We need not address this argument because, even
assuming plaintiffs met their burden on lack of probable cause, plaintiffs
have failed to meet their burden on the element of malice, to which we now
turn.

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 3. Malice
The element of malice goes to a defendant’s subjective intent in
initiating or continuing the prior action. (Medley Capital, supra, 17
Cal.App.5th at p. 48.) “The motive of the defendant must have been
something other than that of bringing a perceived guilty person to justice or
the satisfaction in a civil action of some personal or financial purpose.”
(Soukup, supra, 39 Cal.4th at p. 292.) However, malice is not limited to
actual hostility or ill will. (Ibid.) It may also be present when proceedings
are instituted or maintained primarily for an improper purpose. (Ibid.)
Accordingly, we must determine whether plaintiffs have met their burden to
show that Abdo’s subjective intent in initiating the Santa Clara complaint
was malicious.
Plaintiffs’ primary argument on the malice element is that their
showing on Abdo’s lack of probable cause essentially compels the inference
that Abdo acted with malice. California courts have repeatedly rejected this
argument. “Malice cannot be established simply by a showing of the absence
of probable cause, although the fact that the prior suit was objectively
untenable is a factor that may be considered on the issue of malice.” (Paulus
v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 675.) To establish
malice, a lack of probable cause must be “supplemented with proof that the
prior case was instituted largely for an improper purpose.” (Cole v. Patricia
A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1114.) In other
words, a plaintiff cannot “equate” malice with lack of probable cause.
(Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1465.) This makes sense,
since to hold otherwise would render two separate elements of a malicious
prosecution claim—lack of probable cause and malice—superfluous.

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 Our decision in Lanz provides an example of the supplemental proof
required to show that an attorney acted with malicious intent. In that case,
attorney Lanz filed a complaint against his former client regarding a fee
dispute. (Lanz, supra, 243 Cal.App.4th at p. 449.) The client, who brought in
a new attorney to represent her (Goldstone), filed a cross-complaint against
Lanz alleging breach of fiduciary duty, declaratory relief, and professional
negligence. (Id. at p. 450.) After Lanz defeated the cross-complaint in its
entirety, Lanz filed a malicious prosecution complaint against Goldstone. (Id.
at p. 456.) Goldstone filed an anti-SLAPP motion to strike the malicious
prosecution complaint. (Ibid.) We concluded that Lanz had met his burden
to show a probability of prevailing on his malicious prosecution claim,
including on the element of malice. (Id. at p. 459.) That was because Lanz
came forward with evidence to show Goldstone’s malicious intent, including
that Goldstone personally delivered the unfiled cross-complaint to Lanz’s
office and threatened to file it unless Lanz dismissed his underlying
complaint in the fee dispute, stating that the cross-complaint would be so
expensive and protracted to litigate that the costs would exceed any amounts
owed to Lanz in the fee dispute. (Id. at p. 449.) At his deposition, Goldstone
admitted that he “ ‘may have said that to [Lanz].’ ” (Id. at p. 467.)
Similarly, in Sycamore Ridge, a landlord brought a malicious
prosecution action against a former tenant, the tenant’s attorneys who filed
the underlying action on its behalf, and the attorneys who entered the
underlying action as associated counsel. (Sycamore Ridge, supra, 157
Cal.App.4th at p. 1390–1391.) The attorney defendants filed anti-SLAPP
motions to strike. (Id. at p. 1395.) The appellate court determined that the
landlord had established a prima facie showing that the attorneys lacked
probable cause to support at least some of the 18 causes of action alleged on

15
their client’s behalf. (Id. at p. 1403.) On the element of malice, the landlord
presented evidence that the attorney defendants had provided interrogatory
responses in which their client stated she had suffered no compensable
personal injuries and no property loss. (Id. at p. 1408.) Nevertheless, the
attorneys subsequently provided a statement of damages asserting that their
client had suffered more than $22,000 in compensatory damages and an
additional $50,000 in punitive damages. (Ibid.) The attorneys then
continued with the litigation despite their knowledge that the tenant’s claims
had no basis in fact. (Ibid.) The appellate court determined that the landlord
had presented evidence demonstrating a probability of prevailing on the
element of malice sufficient to defeat the special motion to strike. (Id. at p.
1409.)
Unlike Lanz and Sycamore Ridge, plaintiffs here have not met their
burden of coming forward with evidence to show that Abdo’s subjective intent
in initiating the Santa Clara complaint was malicious.
The linchpin of plaintiffs’ argument is that Abdo filed the complaint to
“coerce” the settlement of the third unlawful detainer action, and that this
conclusion is “inescapable” and “may be inferred” from the testimony of
attorney Mercedes Gavin. We disagree. Gavin represented CMG in the three
unlawful detainer actions. Her declaration in opposition to Abdo’s special
motion to strike describes how attorney defendant Dhaliwal appeared at the
summary judgment hearing on the third unlawful detainer action and served
her with a copy of the Santa Clara complaint. Gavin’s declaration states that
when she asked Dhaliwal “ ‘what [the complaint] was about’ ” he said that he
“ ‘did not know all the details of the suit because another attorney in his
office specializing in civil litigation had prepared the complaint[.]’ ” Gavin’s
declaration continues, “However, he was quick to point out to me that my

16
clients listed on the caption had great exposure.” Gavin states that she was
“a little perplexed” by that statement at the time, because she only
represented CMG. Gavin goes on to describe Dhaliwal’s repeated reference to
the Santa Clara complaint throughout the day of the summary judgment
hearing. Although the summary judgment motion was set to be heard at 9:00
a.m., the court did not decide the motion until “late afternoon.” As Gavin
describes in her declaration: “Throughout the day, during recess, Defendant
Dhaliwal approached me several times to talk to me about the parties
entering into a ‘global settlement’ of both cases with a waiver of the back rent
owed by Friendly and granting it a new lease. At the time, Friendly owed
more than $40,000 in unpaid rent to the landlord. When I told Mr. Dhaliwal
that it was unlikely that my client would accept his proposal, he said that his
clients had ‘deep pockets’ and were willing to heavily litigate the underlying
case [Santa Clara complaint] unless the parties reached a quick settlement of
both cases. [CMG] rejected Defendants’ proposal.”
It is undisputed that Abdo was not present for these conversations, let
alone at court that day, and plaintiffs have presented no evidence that she
shared the same motivation, or even had knowledge of the conversations
between Gavin and Dhaliwal.7 In her declaration in support of the motion to
strike, Abdo states that she was unaware of any such conversations.
Plaintiffs raise questions regarding why Abdo failed to declare whether
or not she drafted the Santa Clara complaint, why Abdo did not press the
action between the time it was filed on November 16, 2017 and her departure
from DLG in February 2018, and why she did not prepare Friendly and

7Gavin mentions that another “junior associate,” who she identifies by
name, appeared in court with Dhaliwal for the summary judgment hearing.
That attorney is not named as a defendant.

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Schreim’s oppositions to plaintiffs’ anti-SLAPP motions in that lawsuit before
she left DLG.8 (Abdo’s declaration states that she left employment at DLG
prior to the litigation of the anti-SLAPP motions or court orders in the Santa
Clara complaint, and that she “did not even read Plaintiffs’ anti-SLAPP
motions or respond to them, the related court orders, or have any idea what
was occurring” until she was served with the Alameda complaint.) Plaintiffs
argue that these questions suggest Abdo knew the underlying lawsuit was
meritless. But plaintiffs’ burden is satisfied by presenting evidence regarding
Abdo’s subjective intent, not posing questions that amount only to
speculation. The record does not show any attempt by plaintiffs to get the
answers to these questions, or request a continuance to obtain necessary
discovery to oppose the special motion to strike, as is permitted under section
425.18, subdivision (e).
Here, the only evidence regarding Abdo’s participation in the Santa
Clara complaint is her name listed under attorney Dhaliwal on the caption
page, and her signature “for” attorney Dhaliwal. The evidence shows that,
whatever her participation, Abdo acted on behalf of, if not at the direction of,
attorney Dhaliwal. It does not show her subjective intent in initiating or
continuing the Santa Clara complaint with malice.
In sum, we conclude that plaintiffs did not meet their burden on the
element of malice as to Abdo.
DISPOSITION
The judgment is affirmed. Defendant Abdo is entitled to her costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

8 Recall that the anti-SLAPP motions to the Alameda complaint were
filed on December 21, 2017 and January 5, 2018.

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 _________________________
Miller, J.

WE CONCUR:

_________________________
Richman, Acting P.J.

_________________________
Stewart, J.

A157516, Chavez et al. v. Dhaliwal, et al.

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