Opinion
NOT TO BE PUBLISHED
APPEAL from orders and a judgment of the Superior Court No. BC353140 of Los Angeles County, Paul Gutman, Judge and Joseph R. Kalin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Richard Y. Kim, in pro. per., for Plaintiff and Appellant.
Law Offices of Robert J. McCulloch, Robert J. McCulloch for Defendants and Respondents Robert J. McCulloch and John C. Haedrich.
Ford, Walker, Haggerty & Behar, William C. Haggerty, and Maxine J. Lebowitz for Defendants and Respondents Parviz Azar-Mehr and Han Young Park Azar-Mehr.
Peterson & Bradford, George E. Peterson, Avi Burkwitz, and Oliver Tomas for Defendants and Respondents Alexander Farnoosh and Ahmad Fahid.
Epstein, Turner & Song and Michael R. Weiss for Defendant and Respondent Michael O. Hamada.
TURNER, P. J.
I. INTRODUCTION
This is a consolidated appeal of several rulings concerning a first amended complaint for malicious prosecution, process abuse, and civil conspiracy brought by plaintiff, Richard Y. Kim, D.D.S., against a number of defendants after a jury returned a verdict in his favor in an underlying dental malpractice action. Plaintiff brought this current action against a former patient, John. C. Haedrich, and numerous other defendants. Plaintiff asserted defendants conspired with each other to bring the underlying dental malpractice action against him based on false and fabricated evidence.
Plaintiff appeals from an order granting special motions to strike pursuant to Code of Civil Procedure section 425.16, claims against Mr. Haedrich and an attorney, Robert J. McCulloch. Mr. McCulloch was Mr. Haedrich’s attorney in the underlying dental malpractice action. Plaintiff also appeals from a judgment entered after demurrers were sustained without leave to amend the first amended complaint. The demurrers were brought by defendants, Alexander Farnoosh, D.D.S., Ahmad Fahid, D.D.S., Parviz Azar-Mehr, D.D.S., Han Young Park Azar-Mehr, D.D.S. and Michael O. Hamada, D.D.S. We affirm the rulings in all respects.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Dr. Parvis Azar-Mehr and Dr. Han Young Park Azar-Mehr are spouses. For purposes of clarity and not out of any disrespect, both dentists will be referred to by their first names.
II. BACKGROUND
A. The Intentional Infliction of Emotional Distress Complaint
It must be noted that this is the second complaint brought by plaintiff against Mr. Haedrich which arose out of the patient-dentist relationship. On December 7, 2005, plaintiff filed a complaint for intentional emotional distress infliction against Mr. Haedrich entitled Richard Y. Kim D.D.S. v. John C. Haedrich, Los Angeles Superior Court, case No. EC049112. The intentional emotional distress infliction complaint alleged, among other things, specific incidents of harassment of plaintiff by Mr. Haedrich. The intentional emotional distress infliction complaint was further predicated on the filing of Mr. Haedrich’s underlying dental malpractice action and an administrative complaint against plaintiff with the Dental Board of California (the board). On February 3, 2006, Mr. Haedrich’s special motion to strike plaintiff’s complaint was denied. Mr. Haedrich appealed that order denying the special motion to strike on March 13, 2006. On November 2, 2006, we reversed the order denying the special motion to strike. (Kim v. Haedrich (Nov. 2, 2006, B189947) [nonpub. opn.].)
B. The Present Lawsuit
On May 31, 2006, while the special motion to strike the intentional emotional distress infliction complaint against Mr. Haedrich was pending on appeal, plaintiff filed the complaint in the instant action. In this case, plaintiff sued: Mr. Haedrich, a former patient; Mr. McCulloch, Mr. Haedrich’s former lawyer in the underlying dental malpractice action; and four dentists who had treated Mr. Haedrich or testified for him in the underlying dental malpractice action. Han was sued as she was Parviz’s wife. The complaint contained causes of action for malicious prosecution (first), process abuse (second) and civil conspiracy (third).
On June 2, 2006, plaintiff filed the first amended complaint. The first amended complaint alleged that, on January 17, 2003, Mr. McCulloch, acting as counsel for Mr. Haedrich, instituted the underlying dental malpractice action against plaintiff entitled John C. Haedrich v. Richard Y. Kim, D.D.S., Los Angeles Superior Court, case No. EC036028. Plaintiff alleged that, on May 12, 2004, Mr. Haedrich and Mr. McCulloch wrongfully filed an administrative complaint with the board and falsely stated that plaintiff failed to diagnose periodontal disease.
The first amended complaint also alleged that Mr. Haedrich was assaulted on April 3, 2002. It was further alleged that the dental malpractice action was false and fabricated as part of a conspiracy among defendants to blame the injuries Mr. Haedrich suffered in the assault on plaintiff’s dental treatment. The first amended complaint alleged that: none of the dentists that treated Mr. Haedrich claimed they knew about the assault; none of the dentists recorded the assault in their charts; Parviz examined Mr. Haedrich on April 9, 2002; but Parviz’s records made no reference to the assault or bruising; conflicting evidence was given in depositions as to whether Mr. Haedrich told Parviz about the assault; the deposition testimony was in conflict as to whether Parviz remembered the assault; and an emergency room physician testified that the orofacial damage to Mr. Haedrich resulted from an assault and not from dental treatment.
Plaintiff alleged: Mr. Haedrich and Mr. McCulloch did not introduce evidence of the assault in court; Mr. Haedrich and Mr. McCulloch never introduced “police photographs” in court; and prior to the assault, Mr. Haedrich did not complain about plaintiff’s dental services. The first amended complaint alleged: [Mr.] Haedrich said at deposition and in court, after the assault, he mainly left [p]lainitff’s care because [p]laintiff recommended . . . Porcelain Fused to Metal [] crowns rather than Full Porcelain crowns. However, Defendant [Dr.] Azar-Mehr did PFM crowns but Defendant [Mr.] Haedrich never objected [to] them.” Parviz’s periodontal charting figures of Mr. Haedrich on April 9, 2002, were “basically the same” as that performed by Dr. Farnoosh on April 15, 2002. It was alleged that it is almost impossible for two different dentists to have the same numbers when the periodontal charts were independently prepared. Plaintiff alleged the dentists copied the charts in order to mislead the court in the underlying dental malpractice action. Plaintiff further alleged that Parviz attempted to mislead the court in the underlying dental malpractice action about the quality of plaintiff’s work on Mr. Haedrich.
Dr. Farnoosh was alleged to have performed osseous surgery on the upper left quadrant of Mr. Haedrich. The surgery was performed even though Mr. Haedrich’s gum condition was within normal limits. The first amended complaint alleged Dr. Farnoosh claimed Mr. Haedrich had advanced periodontal condition with furcation involved. But Mr. Haedrich admitted that he did not have a periodontal condition. Plaintiff further alleged that periodontal charting done by Dr. Hamada on August 7, 2002, established the absence of furcation involvement. Dr. Hamada confirmed that Mr. Haedrich did not have a periodontal condition. Dr. Farnoosh allegedly took photographs with temporaries in place but had no pictures to show the work that plaintiff had performed. Dr. Fahid was alleged to have attempted to mislead the court in the underlying dental malpractice action by: re-treating Mr. Haedrich on June 18, 2002, after a post and build-up restoration had already been performed by Parviz on June 6, 2002; performing the procedure even though Mr. Haedrich did not show any symptoms on the tooth; and by overly treating Mr. Haedrich with root canals. The first amended complaint alleged that Parviz, Dr. Farnoosh, and Dr. Fahid were friends and acted in concert with each other. Han was alleged to be Parviz’s wife and to have acted in concert with her husband.
Dr. Hamada was alleged to have been Mr. Haedrich’s expert witness. According to the first amended complaint, Dr. Hamada testified mainly for plaintiffs and worked only for Mr. McCulloch. Dr. Hamada formulated his opinion on partial, inadequate, and mistaken documentation and he practiced dentistry after his license lapsed. It was alleged that the dental malpractice action ended in a unanimous verdict in favor of plaintiff and against Mr. Haedrich which was reduced to a judgment on June 28, 2006.
The malicious prosecution cause of action incorporated the foregoing allegations and alleged that Mr. McCulloch: instituted the malpractice action and board complaint against plaintiff; acted without probable cause in bringing the actions against plaintiff with knowledge of the asserted claims were false; conspired with Mr. Haedrich, Parviz, Dr. Farnoosh, Dr. Fahid, and Dr. Hamada; and aided and abetted Mr. Haedrich in filing fabricated and false claims against plaintiff in order to coerce a settlement. There are no allegations against any of the other named defendants in the first cause of action. The process abuse cause of action incorporated the foregoing allegations. The process abuse claim alleged Mr. McCulloch misused the legal and administrative processes for ulterior motives and to obtain a collateral advantage over plaintiff. There are no allegations against any other defendant. The civil conspiracy claim alleged defendants jointly and severally conspired to do the foregoing acts with intent to harm plaintiff.
C. The Special Motions To Strike
On August 10, 2006, Mr. McCulloch and Mr. Haedrich filed section 425.16 special motions to strike. The special motions to strike argued the causes of action arose from the exercise of the petition right. As to the merits, the motions argued: there was good faith reliance of the advice of counsel and medical professionals; medical professionals formed the opinion that plaintiff’s treatment of Mr. Haedrich fell below the standard of care; and the litigation privilege barred the process abuse claim.
Mr. Haedrich filed a declaration in support of the special motion to strike. The declaration related the following: plaintiff had treated Mr. Haedrich from July 1995 through April 3, 2002; plaintiff prepared Mr. Haedrich’s upper front teeth for the purpose of fabricating an upper front bridge; plaintiff made a temporary bridge for Mr. Haedrich; the temporary bridge was broken when Mr. Haedrich was assaulted on April 3, 2002; Mr. Haedrich was told a new temporary bridge would have to be installed; plaintiff said he would charge to make the new temporary bridge; and Mr. Haedrich then decided to go to another dentist.
Mr. Haedrich was referred to Parviz at the University of Southern California School of Dentistry. At the time Mr. Haedrich saw Parviz on April 9, 2002, the facial injuries from the assault had been resolved. Mr. Haedrich did not advise Parviz about the assault. Parviz reviewed Mr. Haedrich’s x-rays and conducted an examination. Parviz informed Mr. Haedrich that plaintiff had been negligent in over-preparing the upper front teeth, Nos.6 through 11. Parviz indicated that the crown preparations had been extended below the bone and would require periodontal consultation and surgery. Parviz referred Mr. Haedrich to Dr. Farnoosh. A referral slip to Dr. Farnoosh stated: “This is a very unusual case. Some dentist has extended the crown preparations below the alveolar bone, perio treatment is required before any restorative treatment.”
Dr. Farnoosh examined Mr. Haedrich on April 15, 2002. Dr. Farnoosh reviewed Parviz’s x-rays and advised Mr. Haedrich that the existing temporary crowns and crown preparations were over-prepared causing gum inflammation. Dr. Farnoosh told Mr. Haedrich that plaintiff had been negligent in over-preparing the upper front teeth and that surgery was needed to restore gum health.
On April 18, 2002, Mr. Haedrich retained Mr. McCulloch. Mr. McCulloch said that there was an adequate basis to have an independent dentist review the dental treatment to determine if it met applicable standard of care for dentists. Dr. Hamada examined Mr. Haedrich on August 7, 2002. Dr. Hamada reviewed Mr. Haedrich’s records and radiographs. Dr. Hamada sent a report to Mr. Haedrich. Dr. Hamada found that plaintiff had over-prepared teeth Nos. 6 through 11. Dr. Hamada concluded the treatment was below the standard of care.
Before the dental malpractice suit was filed, Mr. McCulloch spoke to Parviz, Dr. Farnoosh, and Dr. Hamada. Each of these three dentists concluded plaintiff’s treatment of Mr. Haedrich did not comply with the standard of care. Before the dental malpractice suit was filed, Mr. McCulloch discussed the conclusions of Parviz, Dr. Farnoosh, and Dr. Hamada with Mr. Haedrich. Mr. Haedrich denied that he filed the lawsuit because of malice, ill-will, or intent to harm. Mr. Haedrich declared that the underlying dental malpractice lawsuit was filed on advice of counsel and based on the opinions of dental professionals. Mr. Haedrich filed an administrative complaint with the board on May 12, 2004. On December 13, 2004, the board sent a letter to plaintiff and Mr. Haedrich which set forth the conclusions of an unidentified consultant, “This consultant did find that Dr. Kim had negligently prepared teeth [Nos.] 6, 7, 8, 9, 10 and 11 too close to the level of the bone and therefore, the need for periodontal crown lengthening was valid.” Mr. Haedrich denied requesting or directing Parviz and Dr. Farnoosh to falsify their findings. Mr. Haedrich further denied asking Dr. Hamada to falsify or fabricate a negative expert opinion. Mr. Haedrich denied participation in a conspiracy with Mr. McCulloch, Parviz, Dr. Farnoosh, and Dr. Hamada.
Mr. McCulloch declared that he had extensive experience as a dental malpractice attorney since 1985. Mr. Haedrich disclosed the circumstances of the dental treatment, the assault, and the findings of Parviz and Dr. Farnoosh to Mr. McCulloch in the April 18, 2002 meeting. Mr. McCulloch talked to Parviz, Dr. Farnoosh, and Dr. Hamada. Only then was Mr. Haedrich advised he had a meritorious dental malpractice claim. Mr. McCulloch denied there was any conspiracy.
On August 16, 2006, plaintiff filed his opposition to the special motions to strike. He argued each of the malicious prosecution, process abuse and conspiracy claims were viable. He reiterated the allegations in the first amended complaint which accused defendants of conspiring to bring a false and fabricated dental malpractice action against him. Plaintiff also filed a declaration describing Mr. Haedrich’s acts of harassment. One morning in November 2004 at around 3:00 a.m., Mr. Haedrich telephoned plaintiff. In that telephone conversation, Mr. Haedrich harassed plaintiff. On December 23, 2004, Mr. Haedrich sent plaintiff a bidet. On December 28, 2004, Mr. Haedrich sent documents to the board. In May and June 2005, Mr. Haedrich sent North Korean money to plaintiff. Plaintiff stated that the dental malpractice action, which resulted in a unanimous jury verdict in his favor, showed that all defendants falsely and wrongfully pursued the claims against him.
In reply, Mr. Haedrich and Mr. McCulloch argued that plaintiff conceded that the activity on which the first amended complaint arose from the exercise of their petition rights. They further asserted although there were fraud and perjury allegations, defendants have contested the allegations such that their conduct is not illegal as a matter of law under standards set forth in Flatley v. Mauro (2006) 39 Cal.4th 299, 305, 320, 328-333. Mr. Haedrich and Mr. McCulloch further argued the gravamen of the first amended complaint was a malicious prosecution action. With respect to the malicious prosecution claim, they contended, plaintiff did not prove with admissible evidence that: no reasonable person would have relied on the three dentists to establish a tenable claim; Mr. Haedrich and Mr. McCulloch knew that they could not rely on the opinions of the three dentists; Mr. Haedrich could not rely upon the advice of counsel; and documents from plaintiff’s lawsuit against his attorneys and insurance company show that they believed that there was a tenable dental malpractice claim.
Plaintiff filed an answer to the reply. Plaintiff’s answer raised a number of evidentiary objections. Plaintiff’s declaration restated his belief that defendants had perjured themselves and falsely accused him of negligence. He also declared that his attorneys and his insurance company were acting on their own “agenda” including settling the case at its “nuisance value” without regard to whether he had actually committed malpractice.
On August 29, 2006, Mr. McCulloch filed a supplemental declaration in support of the special motions to strike. Attached to the declaration as exhibits were declarations from an action filed by plaintiff, entitled Richard Y. Kim, D.D.S. v. The SCPIE Companies et al., Los Angeles Superior Court, case No. BC353137. Plaintiff’s declarations in that case show he was advised by his attorneys that the underlying dental malpractice claim was viable.
The hearing on the special motions to strike was on September 1, 2006. On September 13, 2006, the special motions to strike were granted. The trial court ruled: Mr. Haedrich and Mr. McCulloch sustained their burden of showing the causes of action arose from the exercise of petition rights; the malicious prosecution, process abuse, and conspiracy claims were all based on defendants’ petitioning activity of filing the underlying dental malpractice action; and plaintiff had failed to show a probability of success on the merits in that all the alleged wrongful conduct was subject to the absolute privilege in Civil Code section 47 for publications of communications made in a judicial proceeding. On September 14, 2006, plaintiff filed a notice of appeal from the order granting the special motions to strike.
D. The Demurrers Of Dr. Farnoosh, Dr. Fahid, And Dr. Hamada
1. The demurrers of Dr. Farnoosh and Dr. Fahid
On July 7, 2006, prior to the filing of the notice of appeal in this case, Dr. Farnoosh and Dr. Fahid demurred to and moved to strike portions of the first amended complaint. Dr. Farnoosh and Dr. Fahid argued the malicious prosecution cause of action did not allege that they initiated a civil or administrative complaint against plaintiff and there are no specific or general facts to show they acted with malice. Dr. Farnoosh and Dr. Fahid contended the process abuse claim failed because: there were no allegations as to how they abused any civil process; the allegations concerning misleading the court were insufficient to establish process abuse; and, to the extent there were allegations they misled the court by providing deposition or trial testimony, their conduct is absolutely privileged under Civil Code section 47. Dr. Farnoosh and Dr. Fahid contended the civil conspiracy claim was inadequately pled because: it did not allege they owed plaintiff any duty; facts related to how the conspiracy was formed, the motive for it, and details about it were missing; no allegation of any civil wrong was alleged other than misleading the court; and their conduct was absolutely privileged.
Plaintiff opposed the demurrers of Dr. Farnoosh and Dr. Fahid by arguing they actively participated in the malpractice action by falsely fabricating the claim. Plaintiff contended the malpractice action was bolstered by over-treating Mr. Haedrich. Dr. Farnoosh and Dr. Fahid allegedly perjured themselves and committed a battery on a patient. Plaintiff argued there was a lack of probable cause to support the malicious prosecution cause of action because: Dr. Farnoosh, Dr. Fahid, and Parviz were all friends; Dr. Farnoosh and Dr. Azar-Mehr copied each others’ periodontal charting; Dr. Farnoosh wrongfully claimed Mr. Haedrich had an advanced periodontal disease; Dr. Farnoosh over-treated Mr. Haedrich by performing unnecessary osseous periodontal surgery; Dr. Fahid over-treated Mr. Haedrich by performing root-canal; and Dr. Fahid committed perjury. Plaintiff asserted that the absolute privilege of Civil Code section 47 did not apply to malicious prosecution claims. Plaintiff argued the process abuse claim was sufficient because it alleged that Dr. Farnoosh and Dr. Fahid actively participated in the malpractice action for financial gain. According to plaintiff, the civil conspiracy claim was viable because the record showed Dr. Farnoosh and Dr. Fahid knowingly entered into an agreement to maliciously prosecute the underlying dental malpractice action.
2. Dr. Hamada’s demurrer
On August 8, 2006, Dr. Hamada demurred and moved to strike portions of the first amended complaint. The demurrer was brought on the ground the malicious prosecution claim did not allege that: the prior action was commenced by or act the direction of Dr. Hamada; Dr. Hamada acted without probable cause; and Dr. Hamada acted with malice. The process abuse demurrer argued: there were no allegations that Dr. Hamada had an ulterior purpose; there were no allegations Dr. Hamada committed an actionable misuse of the judicial process; and the only alleged wrong was providing false testimony which is absolutely privileged under Civil Code section 47.
In opposing Dr. Hamada’s demurrer, plaintiff argued that the malicious prosecution allegations were sufficient because it was alleged that all defendants participated in falsifying and fabricating the wrongful dental malpractice action. Plaintiff contended that the action lacked probable cause and defendants had malice towards him because there was no honest and sincere belief in the validity of the dental malpractice action. Plaintiff cited to specific allegations in the first amended complaint that: Dr. Hamada worked with Mr. McCulloch in other cases; Dr. Hamada’s opinion was formulated on a incomplete basis; Dr. Hamada impeached and perjured himself in the trial; and Dr. Hamada found nothing wrong with the work by the other dentists that overly treated Mr. Haedrich. With respect to the process abuse claim, plaintiff asserted that Dr. Hamada actively participated in the false accusations and had an ulterior motive of seeking financial gain. Plaintiff further argued that the civil conspiracy claim was sufficient based on the allegations of the first amended complaint and a declaration he filed in opposition to the demurrer.
In a reply to the opposition, Dr. Hamada argued that plaintiff had improperly filed a declaration with the opposition. Dr. Hamada nevertheless asserted that the declaration coupled with the insufficient allegations of the first amended complaint established that the demurrers should be sustained without leave to amend. This is because the only basis for relief against Dr. Hamada is that he acted as a witness in the dental malpractice action. Dr. Hamada reiterated contentions that: the malicious prosecution cause of action failed to allege that he initiated the action; the process abuse claim was barred by the absolute privilege in Civil Code section 47; and the civil conspiracy was based on conclusory allegations which will not withstand a general demurrer.
Plaintiff filed an answer to the reply in which he asserted that Dr. Hamada needed to negate the allegations in the first amended complaint. Plaintiff argued: Dr. Hamada prematurely formulated his opinion; Dr. Hamada did not actually see the work plaintiff performed on teeth Nos. 6 through 11; Dr. Hamada impeached himself during the trial; Dr. Hamada practiced after his license lapsed; and Dr. Hamada knew Dr. Farnoosh and Dr. Fahid over-treated Mr. Haedrich but praised rather than criticized their work.
3. The rulings on the Farnoosh, Fahid, and Hamada demurrers
On September 15, 2006, the day before the notice of appeal was filed by plaintiff from the order granting Mr. Haedrich’s and Mr. McCulloch’s special motions to strike, the hearing on the demurrers and motions to strike brought by Dr. Farnoosh, Dr. Fahid, and Dr. Hamada was held. The demurrers were sustained to all causes of action without leave to amend. The motions to strike were taken off calendar as moot. On September 29, 2006, the trial court’s written order was filed. As noted, this was after plaintiff filed his notice of appeal from the order granting special motions to strike. The written order stated: the first amended complaint failed to allege that Dr. Farnoosh, Dr. Fahid, or Dr. Hamada initiated the underlying dental malpractice action or acted with malice; the first amended complaint only alleged that Mr. McCulloch initiated the underlying dental malpractice action on behalf of Mr. Haedrich; and there was no reasonable possibility the defects could be cured because plaintiff had already alleged that Mr. McCulloch initiated the underlying dental malpractice action on behalf of Mr. Haedrich. As to the process abuse cause of action, the written ruling stated the claim was predicated on alleged unnecessary dental work but there are no allegations that Dr. Farnoosh, Dr. Fahid, or Dr. Hamada used any process or they acted maliciously. With respect to the civil conspiracy claim, the written ruling stated plaintiff failed to plead that Dr. Farnoosh, Dr. Fahid, or Dr. Hamada committed an underlying wrong.
As to Dr. Hamada, the trial court ruled plaintiff failed to allege a valid cause of action for malicious prosecution. The trial court ruled: “[Dr.] Hamada argues that plaintiff has failed to allege that [Dr.] Hamada initiated any action or that he acted with malice. [Dr. Hamada’s] argument is well taken. Nowhere in the [first amended complaint] does plaintiff allege that defendant initiated any action against plaintiff, rather, plaintiff alleges that [Mr.] McCulloch ‘instituted a dental malpractice suit against plaintiff, as counsel of record for [Mr.] John C. Haedrich . . . .’ [Citation.] Inasmuch as there is no allegation that [Dr. Hamada] commenced any action against plaintiff, plaintiff has failed to state a claim against [Dr.] Hamada for malicious prosecution. [¶] Moreover, there is no reasonable possibility of curing this defect as to this defendant inasmuch as the only action forming the basis for this claim is the malpractice action which plaintiff has already alleged was commenced by [Mr.] McCulloch on behalf of [Mr.] Haedrich.” Further, as to the process abuse claim against Dr. Hamada, the written ruling stated: “Here, the basis for the abuse of process claim against [Dr.] Hamada is that he misled the court when he testified in the malpractice action regarding [Mr.] Haedrich’s intra-oral condition. Thus, plaintiff seeks to impose liability on [Dr. Hamada] for communications made during a judicial proceeding in relations to that proceeding. Based on [Civil Code section 47, subdivision (b)], plaintiff cannot do so.” As to the civil conspiracy claim against Dr. Hamada, the demurrer was sustained without leave to amend because plaintiff did not plead the requisite element of an underlying civil wrong.
Judgment in favor of Dr. Hamada was entered on October 19, 2006. On December 20, 2006, plaintiff’s motion to vacate the judgment of dismissal in favor of Dr. Hamada was denied. Also on December 20, 2006, the dismissal order in favor of Dr. Farnoosh and Dr. Fahid was entered. On January 4, 2007, plaintiff filed a notice of appeal from the judgment dismissing Dr. Hamada from the present matter and the dismissal order as to Dr. Farnoosh and Dr. Fahid.
E. The Demurrer Of Parviz And His Wife Han
On July 7, 2006, Parviz and Han demurred to and moved to strike the first amended complaint. They argued the malicious prosecution cause of action was defective because: it did not allege that either of them initiated an action against plaintiff; testifying as a witness did not make Parviz a party to the dental malpractice action; and the only allegation against Han was that she is the Parviz’s wife. Parviz and Han contended that the process abuse cause of action contained no allegations that they initiated any legal process against plaintiff or they had any ulterior motives. They further argued that any testimony by Parviz, whether perjured or not in the underlying dental malpractice trial, was absolutely privileged under Civil Code section 47. They asserted the first amended complaint did not allege a civil conspiracy against them because any testimony was absolutely privileged. Parviz and Han also argued plaintiff had alleged no civil wrong against either of them other than the malicious prosecution and abuse of process theories which were inadequate to state causes of action.
Plaintiff opposed the demurrers of Parviz and Han by arguing that they instituted and pursued the malpractice action without probable cause. Plaintiff argued that they actively participated in the presentation of false testimony and over-treating Mr. Haedrich in order to establish a malpractice claim. Plaintiff contended that facts to support his causes of action were made in the first amended complaint and in a declaration he filed in opposition to the demurrer. In addition, plaintiff argued the litigation privilege did not apply to malicious prosecution claims. Plaintiff claimed his process abuse claim against them was sufficient because it alleged that they actively participated in the dental malpractice action for financial gain. Plaintiff contended the civil conspiracy cause of action alleged the formation and operation of an agreement to do wrongful acts as alleged in the first amended complaint.
In reply, Parviz and Han argued the opposition failed to show the first amended complaint was deficient. The malicious prosecution claim of over-treatment is at most a claim for dental malpractice but does not show Parviz and Han initiated an action. There was no malicious prosecution because Parviz may have testified as a witness. Plaintiff answered the reply by arguing Parviz and Han failed to negate specific allegations. Plaintiff contended they made no response to allegations: as to whether Parviz impeached himself under oath; why they did not save work to prove their contentions about plaintiff’s alleged malpractice; why there was conflicting evidence about whether Mr. Haedrich advised the dentists his injuries resulted from an assault; why their reports focused on plaintiff’s dental work without addressing Mr. Haedrich’s other problems; and why the dentists did not question the over-treatment of Mr. Haedrich.
On September 28, 2006, after the notice of appeal from the order granting the special motions to strike of Mr. Haedrich and Mr. McCulloch were filed, the demurrers were sustained without leave to amend. Notice of ruling of the hearing was included in the respondents’ appendix; however, no minute order from the hearing or the reporter’s transcript from that September 28, 2006 hearing have been provided on appeal.
On October 13, 2006, Parviz and Han moved to dismiss the entire complaint pursuant to section 581, subdivision (f)(1). Plaintiff objected to entry of dismissal in favor of Parviz and Han on the ground that his September 14, 2006 appeal following the grant of the special motions to strike in favor of Mr. Haedrich and Mr. McCulloch stayed the entire action under section 916, subdivision (a). Parviz and Han replied that the proceedings in their demurrer were completely unrelated to the special motion to strike appeal. On December 14, 2006, after conducting a hearing, the dismissal motion was granted. The record on appeal does not include the reporter’s transcript from the December 14, 2006 hearing. On December 20, 2006, the first amended complaint was dismissed as to Parviz and Han. Plaintiff filed a notice of appeal from the dismissal order on January 4, 2007.
III. DISCUSSION
A. The Automatic Stay
The parties raise two different issues about the effect of the section 916, subdivision (a) automatic stay. Mr. Haedrich and Mr. McCulloch argue that the first amended complaint should have been stricken on the ground it was filed while the appeal was pending from the order denying the section 425.16 motion in case No. B189947. While the appeal was pending, Mr. Haedrich and Mr. McCulloch argue the automatic stay prevented plaintiff from filing this lawsuit. Plaintiff argues the trial court should not have considered the demurrers after plaintiff filed a notice of appeal in this case from the order granting the special motions to strike brought by Mr. Haedrich and Mr. McCulloch.
Section 916, subdivision (a) provides, subject to exceptions not relevant here, “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” Our Supreme Court has held the perfecting of an appeal from an order denying a special motion to strike under section 425.16 divests the trial court of jurisdiction to conduct proceedings on the merits of causes of action affected by the motion. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192-193; see also Norvartis Vaccines and Diagnostics, Inc. v. Stop Huntington Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1302; Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1189-1190.) After the notice of appeal is filed, the trial court lacks subject matter jurisdiction over the matters “embraced in or affected by” the appeal. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at pp. 196-197; Norvartis Vaccines and Diagnostics, Inc. v. Stop Huntington Animal Cruelty USA, Inc., supra, 143 Cal.App.4th at p. 1302.) In Varian, our Supreme Court explained the test for whether a matter was “embraced or affected by” the appeal: “In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381[].) ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938 [].)” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 189; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 7:8, p. 7-4 (rev. # 1, 2007).) Varian explained: “Because granting a motion to strike under section 425.16 results in the dismissal of a cause of action on the merits [citation], an appellate reversal of an order denying such a motion may similarly result in a dismissal. Such an appellate outcome is irreconcilable with a judgment for the plaintiff on that cause of action following a proceeding on the merits. Moreover, such a proceeding is inherently inconsistent with the appeal because the appeal seeks to avoid that very proceeding. Indeed, ‘[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.’ [Citations.]” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 193.) Section 916, subdivision (a) stays all further proceedings on the merits while an appeal is pending on an order denying a special motion to strike relating to the causes of action which are affected by the motion.
But Varian also held that an appeal from the denial of a special motion to strike does not stay proceedings related to causes of action not affected by the motion. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 195, fn. 8.) Moreover, Varian does not hold and no other decisional authority has concluded that an order granting a special motion to strike divests the trial court of jurisdiction as to matters relating to other defendants, as is the case here. (Compare Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426-1434 [holding that plaintiff’s perfection of an appeal from an order granting a special motion to strike did not automatically stay enforcement of a judgment awarding attorney fees and costs pursuant to section 425.16].)
In applying these standards to this case, there is no merit to Mr. Haedrich’s and Mr. McCulloch’s contention the section 916, subdivision (a) automatic stay was violated when the present lawsuit was litigated. These are two separate lawsuits. In fact, Mr. McCulloch was not even a party to the litigation we resolved in case No. B189947.
Similarly, we disagree with plaintiff that when he filed his notice of appeal from the September 13, 2006 order granting the special motion to strike, the trial court in this case had no jurisdiction to decide the demurrers brought by other defendants who had neither moved to strike the complaint nor were parties to the appeal. In that regard, we note that plaintiff has raised the stay issue in the context of an appeal from the order granting the special motion to strike. However, as we stated above, neither Varian nor any other published opinion has concluded that perfecting an appeal from an order granting a special motion to strike divests the trial court of jurisdiction as to codefendants. In other words, Dr. Farnoosh, Dr. Fahid, Dr. Hamada, Parviz, and Han all chose to attack the pleading by testing the sufficiency of the pleadings on its face rather than filing a special motion to strike. Thus, the merits of the causes of action affected by the special motions as to Mr. Haedrich and Mr. McCulloch do not embrace or affect the merits of the action against the remaining defendants
B. The Special Motions To Strike
1. Special motion to strike procedure
A special motion to strike may be filed in response to “‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Section 425.16, which was enacted in 1992, authorizes a court to summarily dismiss such meritless suits. (Stats.1992, ch. 726, pp. 3523-3524.) There is no requirement though that the suit be brought with the specific intent to chill the defendant’s exercise of free speech or petition rights. (Jarrow Formula, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734; Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-67.) The purpose of the statute was set forth in section 425.16, subdivision (a), as follows: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process . . . .”
Under section 425.16, any cause of action against a person “arising from any act . . . in furtherance of the . . . right of petition or free speech . . .” in connection with a public issue must be stricken unless the courts finds a “probability” that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Dowling v. Zimmerman, supra, 85 Cal.App.4th at p. 1415; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 783.) Section 425.16, subdivision (e) provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” In order to protect the constitutional rights of petition and free speech, the statute is to be construed broadly. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 199; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1121.)
When a special motion to strike is filed, the trial court must consider two components. First, the moving party has the initial burden of establishing a prima facie case that the plaintiff's cause of action arose out of the defendant’s actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Flatley v. Mauro, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-1043; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 784; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 819-821.) Section 425.16 does not apply to every claim which may have some tangential relationship to free expression or petition rights. The Supreme Court has held: “[Section 425.16] cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77, quoting ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002, orig. italics.) Quoting from ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at page 1002, the Supreme Court in City of Cotati v. Cashman, supra, 29 Cal.4th at page 77 explained: “California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one “arising from” an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’ [Citation.]” A defendant who meets the burden of showing the cause of action arises out of the exercise of the rights of petition or free speech has no additional burden of proving either plaintiff’s subjective intent to chill or a chilling effect. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-68.)
Second, once the defendant establishes the complaint’s claims arise out of the exercise of petition or free expression rights, the burden shifts to plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Flatley v. Mauro, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907; Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1450; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at pp. 784-785.) The Supreme Court has defined the probability of prevailing burden as follows: ‘“[T]he plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of the facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited.” [Citations]”’ (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.)
In reviewing the trial court’s order granting the motion, we use our independent judgment to determine whether the defendants were engaged in a protected activity (Flatley v. Mauro, supra, 39 Cal.4th at pp. 325-326; Rushen v. Cohen, supra, 37 Cal.4th at p. 1055) and whether the plaintiffs met their burden of establishing a probability of prevailing on the claim. (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) The trial court can strike one or more causes of action and permit others to remain. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.)
2. The conduct of Mr. Haedrich and Mr. McCulloch arose from petition related conduct
Here, the allegations in the first amended complaint are predicated on actions and communications taken in connection with filing the underlying dental malpractice action as well as making a complaint to the board. The causes of action for malicious prosecution, process abuse, and conspiracy are each predicated upon the conduct of filing a lawsuit and making the administrative complaint to the board. The alleged wrongs clearly implicate defendants’ exercise of the petition right. (See Zamos v. Stroud (2004) 32 Cal.4th 958, 965 [malicious prosecution action arose from acts in furtherance of right to petition or free speech]; Navellier v. Sletten, supra, 29 Cal.4th at pp. 89-90 [filing a lawsuit]; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115 [right to petition includes filing litigation or seeking administrative action].) Accordingly, the burden shifted to plaintiff to establish the probability of prevailing on the merits. As shown below, plaintiff failed to present a prima facie showing he could establish any of his three causes of action.
3. Plaintiff did not provide a prima facie showing of each element
a. malicious prosecution
A malicious prosecution claim requires proof a prior action: was commenced by or at the direction of defendant and was terminated in plaintiff’s favor; lacked probable cause; and was initiated with malice. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740; Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.) There is no question the dental malpractice action which was filed by Mr. McCulloch on behalf of Mr. Haedrich ended in plaintiff’s favor. Rather, the dispute here is whether the probable cause element can be proved. The probable cause element is a question of law for the court to determine. (Zamos v. Stroud, supra, 32 Cal.4th at p. 971; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.) A probable cause determination, as to whether prosecution of the lawsuit was legally tenable, is made under an objective standard of reasonableness based on the known facts. (Zamos v. Stroud, supra, 32 Cal.4th at p. 971; Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 878.) Our Supreme Court has explained: “The test applied to determine whether a claim is tenable is ‘whether any reasonable attorney would have thought the claim tenable.’ [Citations.]” (Zamos v. Stroud, supra 32 Cal.4th at p. 971; Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 878.)
In his opposition to the special motions to strike, plaintiff relied on the fact there was a unanimous jury verdict in his favor in the underlying dental malpractice action. Plaintiff also raised his unsupported allegations from the first amended complaint that the moving defendants had conspired with the other dentists to falsify and fabricate a malpractice claim. Plaintiff, however, failed to produce any admissible evidence showing a lack of probable cause to prosecute the underlying dental malpractice action or to file the complaint with the board. Indeed, plaintiff presented no evidence that established that he would prevail on the malicious prosecution cause of action. By contrast, the moving defendants produced admissible evidence that the underlying dental malpractice claim was tenable: declarations which showed that two dentists told Mr. Haedrich and Mr. McCulloch that plaintiff had acted below the standard of care; Dr. Hamada believed the treatment was below the standard of care; and Mr. McCulloch advised Mr. Haedrich that there was a viable claim. Based on the known facts, any reasonable attorney would have concluded that there was a tenable dental malpractice claim against plaintiff. Furthermore, although the underlying dental malpractice action resulted in a defense verdict, it is undisputed a board consultant concluded that plaintiff’s treatment was below the standard of care. In addition, plaintiff’s own attorneys and insurance company believed there was a potentially viable malpractice claim against their client and insured. The trial court properly granted the special motions to strike the entire malicious prosecution claim because plaintiff failed to establish that there was any likelihood of prevailing on the probable cause element. We need not address Mr. Haedrich’s advice of counsel contentions.
b. process abuse
The process abuse claim asserts that Mr. McCulloch misused the legal and administrative process to obtain a collateral advantage over plaintiff. Presumably Mr. McCulloch did so as a means for obtaining money from plaintiff as a result of the dental treatment provided to Mr. Haedrich. The process abuse claim in the first amended complaint only addresses conduct by Mr. McCulloch, Mr. Haedrich’s lawyer. A process abuse claim requires allegations and proof the defendant had an ulterior motive in using the processes of court. And it must be alleged and proven the defendant willfully acted in the use of the legal process for a purpose other than the one for which it was designed. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168; Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 466.) The first amended complaint was based on allegations the underlying dental malpractice lawsuit was filed and an administrative complaint was made to the dental board. Although the mere filing or maintenance of a lawsuit may be actionable as a malicious prosecution, such an action, even for an improper purpose is not a proper matter for a process abuse claim. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1169; Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 521.) Here, the sole allegation of actionable conduct was that the underlying dental malpractice action and the board complaint were maliciously filed against plaintiff. In any event, given the evidence on the malicious prosecution cause of action, plaintiff failed to carry his burden of presenting a prima facie showing in regard to the process abuse allegations.
Moreover, the only challenged conduct is that Mr. McCulloch, on behalf of Mr. Haedrich, filed a lawsuit and an administrative complaint against plaintiff. Such conduct was subject to the absolute privilege of Civil Code section 47 which provides in part: “A privileged publication or broadcast is one made: . . [¶] (b) In any . . . (2) judicial proceeding, . . . (4) in the initiation or course of any other proceeding authorized by law . . . . [¶] (d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.” All of Mr. McCulloch’s alleged conduct in the process abuse cause of action subject is privileged. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194; Pacific Gas & Electric Co. v. Bears Stearns & Co. (1990) 50 Cal.3d 1118, 1132; Silberg v. Anderson (1990) 50 Cal.3d 205, 216; Ribas v. Clark (1985) 38 Cal.3d 355, 364.)
c. conspiracy allegations
Plaintiff also failed to produce a prima facie showing he could prevail on his conspiracy claim. There is no independent tort of conspiracy. The conspiracy must be to commit some other unlawful act or tort. (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511; Everest Investors 8 v. Whitehall Real Estate Limited Partnership (2002) 100 Cal.App.4th 1102, 1106.) In this case, the only allegations are that the underlying dental malpractice action and a dental board complaint were filed. Plaintiff’s theory is that there was a conspiracy to maliciously prosecute him and abuse the judicial and administrative process. However, as noted, plaintiff failed to make a prima facie showing of any merit to the malicious prosecution and process abuse claims. No other wrongful acts are alleged. In the absence of allegations or proof of a wrongful act other than the filing of the underlying dental malpractice action and board complaint, the conspiracy cause of action was properly stricken.
3. Mr. Haedrich is entitled to attorney fees.
Mr. Haedrich has requested his attorney fees pursuant to section 425.16, subdivision (c). An attorney fee award is mandatory for a prevailing defendant of a section 425.16 motion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 338.) This includes an attorney fee award incurred for responding to an appeal. (Carpenter v. Jack In the Box Corp. (2007) 151 Cal.App.4th 454, 461; Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21.) However, the attorney fee award does not apply to Mr. McCulloch’s representation of himself in the section 425.16 motion. (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207-1209.) Nevertheless, Mr. Haedrich is entitled to recover attorney fees even though Mr. McCulloch is a self-represented co-defendant. (Ramona Unified School Dist v. Tsiknas, supra, 135 Cal.App.4th at p. 524.) Any attorney fee award should, thus, be based on Mr. McCulloch’s representation of Mr. Haedrich.
C. The Demurrers
1. Standard of review
Our Supreme Court has defined our task as follows, “‘Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The reviewing court assumes the truth of allegations in the complaint which have been properly pleaded and gives it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The Supreme Court has held: “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on [Mr. Bernardino], however, to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
2. The Farnoosh, Fahid, and Hamada demurrers were properly sustained.
a. malicious prosecution
As previously noted, the elements of a malicious prosecution cause of action are: the defendant initiated a prior action which was terminated in the plaintiff’s favor; the prior action was brought without probable cause; and the action was brought with malice. (Siebel v. Mittlesteadt, supra, 41 Cal.4th at p. 740; Casa Herrera, Inc. v. Beydoun, supra, 32 Cal.4th at p. 341.) The first amended complaint contains no allegations that Dr. Farnoosh, Dr. Fahid, and Dr. Hamada initiated a prior action against plaintiff or filed an administrative complaint against plaintiff. Moreover, the first amended complaint conceded that the malpractice action and dental board complaint were filed by Mr. McCulloch on behalf of Mr. Haedrich. The trial court properly ruled that the defect could not be cured as to Dr. Farnoosh, Dr. Fahid, and Dr. Hamada.
b. process abuse
With respect to the process abuse claim, it was alleged that Dr. Farnoosh, Dr. Fahid, and Dr. Hamada presented false and perjured testimony to the court. The testimony of witnesses is subject to the absolute privilege of Civil Code section 47, subdivision (b). (Silberg v. Anderson, supra, 50 Cal.3d at pp. 213-214; accord Rubin v. Green, supra, 4 Cal.4th at p. 1194.) Likewise, the abuse of process cause of action is barred against Dr. Hamada who allegedly provided reports and testimony which were based on false, incomplete, and fabricated evidence. The preparation of the reports by witnesses offering opinion testimony and any testimony given in that regard are protected by the absolute privilege. (Civ. Code, § 47, subd. (b); Moore v. Conliffe (1994) 7 Cal.4th 634, 640-647; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 912-916.) The demurrers to the process abuse claims against Dr. Farnoosh, Dr. Fahid, and Dr. Hamada were correctly sustained.
c. civil conspiracy
As noted, a civil conspiracy requires an agreement, a wrongful act, and damages. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 511; Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.) Plaintiff must allege some other underlying tort or civil wrong other than the conspiracy itself because a conspiracy is not an independent cause of action. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at pp. 510-511; Richard B. Levine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574.) Here, the civil conspiracy claim alleged that defendants conspired to falsify and fabricate evidence against plaintiff which led to the filing of the dental malpractice action and a dental board complaint by Mr. McCulloch on behalf of Mr. Haedrich. There is no independent wrongful act on which to base a civil conspiracy claim against Dr. Farnoosh, Dr. Fahid, and Dr. Hamada. The trial court properly sustained the demurrers without leave to amend.
2. The demurrers of Parviz and Han
Plaintiff has also appealed from an order of dismissal entered after the demurrers brought by Parviz and Han were sustained without leave to amend. Plaintiff did not include any court order sustaining the demurrers without leave to amend on September 28, 2006. Plaintiff also did not designate the reporter’s transcript from the September 28, 2006 hearing sustaining the demurrers without leave to amend. In addition, plaintiff failed to designate the reporter’s transcript from a December 14, 2006 hearing granting the dismissal request by Parviz and Han.
Plaintiff’s failure to provide the trial court’s September 28, 2006 order sustaining the demurrers without leave to amend requires that the order dismissing Drs. Azar-Mehr be affirmed. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; In re Kathy P. (1979) 25 Cal.3d 91, 102; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809; disapproved on a different point in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328, fn. 30; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Likewise, plaintiff’s failure to designate transcripts from the September 28 and December 14, 2006 hearings or provide a suitable substitute requires that the order be affirmed on the basis of an inadequate record. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P., supra, 25 Cal.3d at p. 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at p. 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc. Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit, supra, 88 Cal.App.3d at pp. 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming arbitration award].) The failure to provide an adequate record of the two pertinent hearings requires that we affirm the dismissal order.
IV. DISPOSITION
All orders and the judgment under review are affirmed in their entirety. Defendant, John Haedrich, is awarded his costs on appeal, including attorney fees incurred on appeal from plaintiff, Richard Kim, D.D.S. Defendants, Robert J. McCulloch, Alexander Farnoosh, Ahmad Fahid, D.D.S., Parviz Azar-Mehr, D.D.S., Han Young Park Azar-Mehr, D.D.S. and Michael O. Hamada, D.D.S., are each awarded their costs on appeal from plaintiff.
We concur: ARMSTRONG, J. KRIEGLER, J.