Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 06CECG01789. Donald S. Black, Judge.
Joe Flores, in pro. per., for Plaintiffs and Appellants.
Georgeson and Belardinelli, C. Russell Georgeson, for Defendants and Respondents.
OPINION
Wiseman, J.
This case involves a suit by a client against his attorney alleging malicious prosecution, abuse of process, and defamation. This suit arose from an earlier suit by the attorney against the client, which in turn arose from the client’s refusal to pay the attorney fees earned in a yet earlier suit. The trial court granted the attorney defendant’s special motion to strike the complaint pursuant to the anti-SLAPP law (Code Civ. Proc., § 425.16). We affirm the judgment.
Subsequent statutory references are to the Code of Civil Procedure. SLAPP stands for strategic lawsuit against public participation. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
FACTUAL AND PROCEDURAL HISTORIES
Attorney H. Ty Kharazi represented Joe Flores in the early stages of Joe Flores and Connie Flores v. DDJ, Inc. et al. (CVF 99-5878 AWI DLB) (Flores v. DDJ), filed in the United States District Court for the Eastern District of California. Kharazi filed a motion on January 14, 2000, for leave to withdraw as counsel of record on the ground that Flores had stopped communicating with him. The court granted the motion.
Kharazi sued Flores for fees earned in Flores v. DDJ. He filed H. Ty Kharazi v. Joe Flores et al. (02CECL04035) (Kharazi v. Flores) in Fresno County Superior Court on April 8, 2002. As later amended, the complaint alleged breach of contract, common counts, and quantum meruit.
While Kharazi v. Flores was pending, judgment was entered for the plaintiffs in Flores v. DDJ on March 11, 2004. The District Court granted plaintiff Flores’s motion for attorney fees on October 6, 2004. It awarded him $5,887.50 for Kharazi’s work and $1,891.50 for the work of Kharazi’s staff, a total of $7,779.
Kharazi v. Flores subsequently ended in a settlement in which Kharazi received $7,779. On June 2, 2005, the Superior Court filed a stipulated order and judgment stating that Kharazi was the prevailing party on the quantum meruit claim while Flores was the prevailing party on the breach of contract claim and the common counts.
At oral argument in this appeal, Flores provided the court with a copy of a docket printout from Flores v. DDJ. He requested that we take judicial notice of this document. The document appears to indicate that Kharazi represented an entity called California Farmers Advocates and that Flores was self-represented. According to Flores, this proves that Kharazi represented a corporate entity and not Flores himself. In turn, Flores claims, this shows that Kharazi defrauded the court by claiming entitlement to attorney fees in Kharazi v. Flores and that he should not have received any money in the settlement of that action. We are not here to review the settlement in Kharazi v. Flores. We deny the request for judicial notice on the ground that the submitted material is irrelevant to the issues in this case. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn. 4.)
Then, on June 2, 2006, Flores filed the present action. Connie Flores, originally a plaintiff and a party to this appeal, has withdrawn. As later amended, Flores’s complaint alleged that defendants subjected him to malicious prosecution and abuse of process by filing Kharazi v. Flores. It also alleged that Kharazi defamed Flores by referring the claim for fees to a collection agency. Named as defendants were Kharazi, his law firm, another attorney employed by the firm, the collection agency, and the collection agency’s principals (collectively Kharazi).
Kharazi filed, and the court granted, a special motion to strike under the anti-SLAPP law, section 425.16. The court ruled that each cause of action sought to impose liability for an activity protected by the anti-SLAPP law and that Flores did not show a probability of success on any of his claims. The court ordered the complaint stricken without leave to amend. It also awarded attorney fees to Kharazi.
In this appeal, Flores asserts that the motion to strike was granted erroneously. He does not, however, contend that, had it been properly granted, the court still should not have awarded attorney fees.
DISCUSSION
Standard of review
We review de novo an order granting or denying a section 425.16 motion to strike. We consider the pleadings and the affidavits supporting and opposing the motion, but we do not weigh credibility or compare the weight of the evidence on each side. Instead, we assume the plaintiff’s evidence is true and determine whether the defendant’s evidence defeats it as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
Applicable law
“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” is subject to a special motion to strike under the anti-SLAPP law. (§ 425.16, subd. (b)(1).) The activities the statute protects include statements before judicial and other official bodies, statements in connection with judicial and other official proceedings, and statements regarding issues of public interest. (§ 425.16, subd. (e).) The motion must be denied, however, if “there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
The moving party—i.e., the defendant—has the burden of showing that the activity for which it is being sued is a protected activity under the statute. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the defendant shows this, the burden shifts to the nonmoving party—the plaintiff—to show a probability that it will prevail on the challenged claims. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) The plaintiff “‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) We will apply these principles to each of the causes of action alleged in the complaint.
Malicious prosecution
Flores’s malicious prosecution claim arose from the fact that defendant earlier sued him for fees in Kharazi v. Flores. This activity is protected under the anti-SLAPP law. “The constitutional right of petition encompasses ‘“‘the basic act of filing litigation.’”’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.) Our Supreme Court has rejected the notion that malicious prosecution actions are exempt from the anti-SLAPP law. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) The trial court was correct when it concluded that Flores’s malicious prosecution claim was directed against a protected activity and that the burden then shifted to Flores to show a probability of success.
He did not sustain this burden. The tort of malicious prosecution of a civil action has four elements: (1) the initiation of a prior civil proceeding; (2) a termination of that proceeding favorable to the party now bringing the malicious prosecution action; (3) a lack of probable cause for bringing the prior proceeding; and (4) malice. (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 318; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 486, p. 712.) Flores could not show a probability of success because, as a matter of law, the underlying action was not terminated favorably to Flores. The case was settled by means of a stipulated judgment, but the bottom line was that Kharazi got what he was seeking. Kharazi’s goal was to receive compensation for his firm’s work in Flores v. DDJ. The judge in that case examined billing records submitted in support of the fee motion and found, by multiplying hours worked by a reasonable hourly rate, that Kharazi and his firm earned $7,779. The stipulated judgment in Kharazi v. Flores awarded Kharazi $7,779. This was less than the amount ($14,047.86) prayed for in Kharazi’s complaint, but it still represents payment for the work his firm performed, which was the object of the suit.
Flores argues that the underlying case was terminated favorably to him because the stipulated judgment stated he was the prevailing party on the breach of contract theory and the common counts; the monetary judgment in favor of Kharazi was based only on quantum meruit. The judgment for Flores on those two legal theories does not amount to a termination of the underlying proceeding in Flores’s favor, as we will explain now.
A malicious prosecution plaintiff’s success on some aspects of the underlying case will not establish the favorable-termination element of the tort where the underlying case as a whole was terminated in the opposing party’s favor. In discussing what happens when a malicious prosecution plaintiff has lost on some claims presented in the underlying case but won on others, the California Supreme Court has distinguished between the favorable-termination element of the tort and the lack-of-probable-cause element. (Crowley v. Katleman (1994) 8 Cal.4th 666, 686 (Crowley).) While a lack of probable cause for making any one claim can suffice to satisfy the probable-cause element of the tort, there still must be “‘a favorable termination of the entire action’” to support the favorable-termination element. (Id. at p. 686.) In other words, the question of whether probable cause was lacking for making one or more of the claims in the prior action can arise only after that action as a whole is terminated in the malicious prosecution plaintiff’s favor. (Ibid.) Since the stipulated judgment in the underlying case awarded Kharazi the fees Flores had refused to pay, the entire underlying action was not terminated in Flores’s favor.
It has sometimes been held that a partially favorable result in the prior action can support a malicious prosecution claim if the malicious prosecution plaintiff won in the prior action on a claim that is severable from the claim on which that party lost. In Paramount General Hospital Co. v. Jay (1989) 213 Cal.App.3d 360 (Paramount General Hospital), the Court of Appeal held that a malicious prosecution action could be brought—even though the malicious prosecution plaintiff had lost on some causes of action advanced in the prior action—because those on which he had lost were severable and could have been brought in a separate proceeding. (Id. at p. 363.)
The holding of Paramount General Hospital and similar cases are in conflict with Crowley, which states that the entire underlying case must be terminated in the malicious prosecution plaintiff’s favor. (See StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1402-1405.) Even if Paramount General Hospital states the law correctly, Flores had no favorable termination because the issues on which he prevailed were not severable. As in Freidberg v. Cox (1987) 197 Cal.App.3d 381, 389, “[t]here was but one injury and one cause of action for recovery of attorney’s fees,” even though there were several legal theories. In Freidberg, the attorney plaintiff in the underlying case sought to recover fees from the defendant, his former co-counsel, under theories of joint venture, reasonable value of services rendered (i.e., quantum meruit), and tortious interference with contract. (Id. at p. 383.) He won at trial on the reasonable-value-of-services theory—thereby recovering the fees he sought—and lost on the others, which the trial court dismissed. (Id. at pp. 383-384.) The theories on which the plaintiff won and those on which he lost were parts of a single cause of action, and an attempt to bring separate lawsuits based on them would have constituted claim-splitting. This meant the case was not terminated favorably for the defendant, who consequently could not bring a malicious prosecution suit based on the dismissed claims. (Id. at pp. 388-389.)
The same analysis applies to the present case. Kharazi’s three legal theories were only different avenues for seeking redress of a single injury; they comprised a single cause of action. Kharazi obtained the relief he was seeking: payment of the attorney fees awarded in the underlying federal case for the hours worked by him and his firm.
For all these reasons, the stipulated damages judgment for Kharazi in Kharazi v. Flores means Flores could not establish the favorable-termination element of malicious prosecution as a matter of law. The anti-SLAPP motion therefore was granted properly on that cause of action. We need not discuss the remaining elements of malicious prosecution.
Abuse of process
Like Flores’s malicious prosecution claim, his abuse of process claim arose from Kharazi’s filing of Kharazi v. Flores. Again, the filing of litigation is a protected activity under the anti-SLAPP law. (Navellier v. Sletten, supra, 29 Cal.4th at p. 90.) It has been held that an abuse of process claim is among those that can be stricken pursuant to section 425.16. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) The trial court correctly concluded that Flores’s abuse of process claim was directed against a protected activity and that the burden then shifted to plaintiff to show a probability of success.
Again, Flores did not sustain his burden. The elements of the tort of abuse of process are (1) “‘a wilful act in the use of [a judicial procedure] not proper in the regular conduct of the proceeding’”; and (2) an “‘ulterior purpose’” on the part of the person allegedly abusing process, usually taking the form of “‘coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club.’” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232 (italics omitted).)
Flores’s attempt to show a probability of success fails because he relies on alleged facts which, as a matter of law, cannot be an abuse of process. As described in his appellate brief, Flores’s abuse of process claim is based on the allegation that “Kharazi purposely with full knowledge of the innocence of [the defendants in Kharazi v. Flores], filed a civil complaint for breach of contract and common counts against them .… Kharazi’s action was purposeful, with full knowledge of his vile and malicious action, knowing full well that he was prosecuting this action with vengeance and retribution .…” The essence of the claim is that Kharazi sued Flores because other parties associated with Flores had filed litigation against Kharazi; Flores claims Kharazi did this even though he had assigned his fee claim to a collection agency and therefore could not prevail in the litigation. The filing of a lawsuit cannot, however, be an abuse of process. The wrongful filing of lawsuits is within the province of another tort theory—malicious prosecution. The California Supreme Court has explained:
“The relevant California authorities establish … that while a defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis of an abuse of process action.… [¶] The rationale underlying these decisions is not difficult to ascertain. The elements of the common law malicious-prosecution cause of action have evolved over time as an appropriate accommodation between the freedom of an individual to seek redress in the courts and the interest of a potential defendant in being free from unjustified litigation. In order to avoid an improper ‘chilling’ of the right to seek redress in court, the common law provides that to prevail in a tort action for malicious prosecution a party must demonstrate [favorable termination, lack of probable cause, and malice].… Because the lack-of-probable-cause requirement in the malicious prosecution tort plays a crucial role in protecting the right to seek judicial relief [citation], we agree with the prior decisions which have concluded that this element may not be circumvented through expansion of the abuse of process tort to encompass the alleged improper filing of a lawsuit.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169-1170.)
For this reason, Kharazi’s anti-SLAPP motion properly was granted with respect to the abuse of process claim.
Defamation
The third cause of action in Flores’s complaint is denominated “Submitting False Information to a Collection Agency; Slander; Libel; and Defamation of Character Against All Defendant[s].” Like the trial court, we interpret this as a claim of defamation. As described in the complaint, the claim arises from Kharazi’s employment of a collection agency to attempt to collect fees from Flores.
Not every claim of defamation is subject to an anti-SLAPP motion. Defamation claims that have been held subject to an anti-SLAPP motion are those in which the alleged defamatory statements were made in connection with official proceedings or were related to an issue of public interest. (See, e.g., Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043-1049 [defamation claim against newspaper based on activity protected by section 425.16 because articles from which claim arose were about issue of public significance and were connected with issue under consideration in official proceedings]; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1173-1175 [defamation claim against individual by charitable organization, based on individual’s comments in opposition to organization’s project, based on activity protected by section 425.16 because comments concerned issue of public significance].) Some other defamation claims, where the alleged defamatory statements were not made in connection with official proceedings and were not related to an issue of public interest, have been held not to be subject to an anti-SLAPP motion. (See, e.g., Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130-1131, 1132-1134 [defamation claim based on accusation of theft did not arise from activity protected by section 425.16 because accusation not connected with official proceedings and not related to matter of public interest].)
Here, the claimed defamatory statements were those by which defendants allegedly referred to a collection agency plaintiff’s claimed debt for attorney fees arising from a prior lawsuit. Plaintiff has not sufficiently challenged the trial court’s determination that these statements are the type of activity protected by the anti-SLAPP law. His appellate brief makes a general assertion that all “the challenged claims do not arise from an act or acts in furtherance of Kharazi’s right of petition or free speech,” but he makes no argument and cites no authority about how his defamation claim, in particular, is not based on a protected activity. An appellate court is not required to resolve a question about which an appellant has not argued or cited authority. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Therefore, we will not further consider whether Flores’s defamation claim arose from an activity protected by section 425.16.
Flores contends that he showed a probability of success on his defamation claim. We disagree and conclude the claim was barred by the statute of limitations. The limitations period for defamation is one year. (§ 340, subd. (c).) A cause of action for defamation is traditionally held to accrue at the time the allegedly defamatory statement is communicated, but the rule that the claim does not accrue until the plaintiff discovers the defamation has sometimes been applied instead. (See Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247-1251.) Giving Flores the benefit of the doubt, and assuming that the discovery rule applies, we still conclude that the limitations period expired long before he filed this action. According to Flores’s own allegations in the complaint, he discovered the alleged defamation in 2001. The complaint alleged that the collection agency contacted him seeking payment of Kharazi’s fees on July 25, 2001. Flores attached a copy of the collection agency’s letter of that date to the complaint. The complaint further alleged that Flores disputed the claim for fees and received additional correspondence from the agency on August 21, 2001. The agency’s letter of that date, attaching an itemized bill from Kharazi, was also attached to the complaint. In addition, Flores attached to the complaint a document he faxed to Kharazi on December 13, 2002, asserting that Kharazi “damaged [his] character” by “submitting [the] alleged claim for monies owed to a collection agency.” Flores filed his original complaint in this case on June 2, 2006, and an amended complaint on July 5, 2006. The limitations period expired years earlier.
Flores argues that the limitations period did not begin to run until Kharazi v. Flores was settled in 2005. This is so, he says, because Kharazi’s claim was assigned to the collection agency and never assigned back to Kharazi, even though Flores asked the agency to reassign it. Flores claims these alleged facts “[constitute] a continuing tort.” He further contends that the collection agency “conspired with Kharazi” and that the limitations period did not begin to run until the “last overt act” of the conspirators, which, he says, was the settlement of Kharazi v. Flores.
Flores’s argument lacks merit. A defamation occurs when the defendant communicates a defamatory statement to an audience. There is no authority for Flores’s position that the alleged defamation was repeated or continued because the collection agency did not agree to his request to assign the debt back to Kharazi. Similarly, it is incorrect to say Kharazi and the collection agency were engaged in a conspiracy to defame Flores on the basis of these alleged facts.
Due to the fact that Flores’s defamation claim was barred by the statute of limitations, he could not, as a matter of law, show a probability of success on that claim. We need not discuss the trial court’s additional ruling that the litigation privilege barred the defamation claim.
Kharazi’s method of submitting evidence
Finally, Flores makes a procedural argument that Kharazi’s motion was inadequate because it was not supported with a declaration by Kharazi. He relies on the following language in the anti-SLAPP statute: “In 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.” (§ 425.16, subd. (b)(2).) He also relies on the statement in the trial court’s ruling that “[t]he motion must be supported by declarations stating facts upon which the defense is based.”
Kharazi supported his motion with a request for judicial notice of several documents filed in Kharazi v. Flores and other actions involving the parties. These documents, combined with the pleadings, were the basis of the trial court’s conclusion that Kharazi carried his burden as the moving party. There is no requirement that the evidence the moving party submits must include his own declaration.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
WE CONCUR: Harris, Acting P.J., Gomes, J.