Opinion
G054325
06-27-2018
Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Defendants and Appellants. Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00867895) OPINION Appeal from an order of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed. Motion to consider additional evidence. Denied. Request for Judicial Notice. Granted. Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Defendants and Appellants. Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiffs and Respondents.
* * *
INTRODUCTION
Defendants Sam Maralan and Parisa Hodjati appeal from an order denying their anti-SLAPP motion brought under Code of Civil Procedure section 425.16 in which they challenged a malicious prosecution complaint against them filed by plaintiffs Javad Mostafavi and Negresh Business Service, Inc. (Negresh). (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) Maralan and Hodjati contend the trial court erroneously concluded Mostafavi and Negresh had demonstrated a probability of prevailing on their claim.
"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728, 732, fn. 1.)
We affirm. Mostafavi and Negresh carried their burden of showing a probability of prevailing on the merits of their malicious prosecution claim.
BACKGROUND
I.
HODJATI'S UNSUCCESSFUL UNDERLYING ACTION
In September 2013, Hodjati filed a complaint against Mostafavi and Negresh which contained claims for attempted extortion and intentional infliction of emotional distress (the underlying action). The complaint in the underlying action alleged that Mostafavi is the owner and editor of the Persian community magazine entitled Payam-e-Ashena which is published through Negresh. Hodjati's claims against Mostafavi and Negresh were based on her allegations that two years earlier, in September 2011, Mostafavi sent her a document in which he had threatened to publish details regarding the then-recent arrest of Hodjati's husband, Saied Maralan, and the charges that had been brought against him, and to place Saied Maralan's picture on the front page of Payam-e-Ashena unless she paid him $3,000.
We refer to Saied Maralan by his first and last name and refer to defendant Sam Maralan by his last name only for clarity sake.
In April 2014, Hodjati retained attorney Isi Mataele to represent her in the underlying action.
At the one-day bench trial in September 2015, the court admitted exhibits into evidence pursuant to the stipulation of the parties' counsel, counsel for both parties presented their opening statements, Hodjati testified, counsel for Mostafavi and Negresh read portions of Hodjati's deposition transcript into the record, and Hodjati rested her case (all of which took place in less than 90 minutes). Mostafavi and Negresh thereafter made an oral motion for nonsuit. The court's minute order stated the court heard oral argument on the motion and "will reserve."
In her appellate opening brief, Hodjati incorrectly suggests the trial court denied Mostafavi and Negresh's motion for a nonsuit.
After Mostafavi and another witness testified during the defense case, and the parties' counsel presented closing arguments, the court stated the judgment should be entered in Mostafavi and Negresh's favor.
At Hodjati's request, the court orally issued a statement of decision in which the court stated the following:
"For the extortion claim, the court heard plaintiff testify, saw her demeanor on the stand, and heard Mr. Mostafavi as well when he testified, had an opportunity to judge his credibility. And the court finds this whole story from the plaintiff about these alleged threats to be not credible. I don't believe that there were ever any threats or suggestions that Mostafavi would publish this magazine cover unless he was paid the $3,000. That story doesn't even make any sense.
"Why would someone, who is a long-respected member of the community, who has had this magazine in operation for a number of years, risk his entire reputation, perhaps even his liberty in a criminal action, all over $3,000? Especially when they were repeated offers, says the invoices, we'll pay it. It just doesn't make any kind of logical sense. It's ludicrous. I don't think there's anything that really ties any kind of these alleged threats—there just is no quid pro quo here.
"I thought that Mr. Mostafavi's testimony was credible. I believe him when he said he did not make any threats or send this e-mail with the cover as some sort of suggestion or inference that if I don't get my money this story gets published and I want my $3,000. I don't think there's any credible evidence to support that whatsoever.
"I think what he wanted as a journalist was to try to get a story. That's what he testified to. And that's what I think was credible. He wanted to investigate this story. He knew the husband, a defendant in a criminal case. And he thought this might give him an inside scoop to publish a story that contained information that no other members of the media had. And I think that's why he was persistent in trying to get that information. But I don't think it was ever done to harass or intimidate or try to threaten anyone. I just think that's just made up out of thin air.
"The fact that the cover story was sent and then later in the day the invoices were sent, I believe his story that he was asked to send those invoices, and that's why it's the same day, and that's why there's really no logical connection to this notion of threats. It's just fabricated.
"And even beyond that, there's no secret here that can be exposed. The record is replete here with numerous press releases documenting just how widely this story spread.
"[¶] . . . [¶]
"So I don't know that there's—and there is no secret. Even if you believe this story or inference that somehow there's a threat here, there's no secret to reveal. It's just absolute nonsense. I can't even imagine why any reasonable person would throw out that idea. It's just baffling.
"As to intentional infliction of emotional distress, again, based on my findings, there's no outrageous conduct here. Plaintiffs' counsel failed completely, even if there was, to put on any evidence of net worth. But that's besides the point.
"Again, there's no secret to reveal, no credible evidence that defendants were intending to cause any harm. They were going after a story as journalists. At the same time, I think it's pretty well-documented that if there was any emotional distress it probably was due almost certainly to the arrest of the husband. Plaintiff attempted to say, well, somehow this added on to other existing emotional distress. But nothing really corroborates that other than her testimony. And I haven't found her to be much of a credible witness. I mean, there's really no corroborating of any emotional distress at all because she says she didn't seek any treatment or didn't see a doctor because she distrusts doctors and, apparently, elected to pursue only home remedies. So I don't know how credible that is either. Again, certainly no evidence that there was an intent to cause any emotional harm on the defendant's part."
Hodjati filed a notice of appeal with the help of her son, Maralan, from the judgment entered against her. This court dismissed the appeal after her default.
II.
MOSTAFAVI AND NEGRESH FILE THE MALICIOUS PROSECUTION ACTION
Mostafavi and Negresh filed a complaint for damages for malicious prosecution against Hodjati, her attorney Mataele, and her son, Maralan, who participated in the underlying action. The malicious prosecution complaint alleged that in September 2011, several sexual assault charges that had been brought against Saied Maralan had been extensively covered by all types of news media. As owner of Negresh, which published Payam-e-Ashena, Mostafavi attempted to contact Hodjati for a statement. After Hodjati refused to give a statement, Mostafavi sent her a copy of an ABC News clip to show her that he was going to run a cover article anyway, in case she wanted to change her mind and give a statement. In the same time frame, Mostafavi sent an e-mail to the corporation that owns Sirous & Sons Rug Gallery (where both Saied Maralan and Hodjati had worked) inquiring about whether outstanding invoices would be paid soon.
The malicious prosecution complaint further alleged that two years later, Hodjati filed the underlying action; Mostafavi and Negresh believed the complaint was drafted by Maralan, who managed the underlying action even after Mataele took over as attorney of record for Hodjati. The complaint asserted that Mostafavi's conduct of trying to get a statement from Hodjati was appropriate and privileged and did not constitute an attempt to extort Hodjati. The complaint asserted that, in any event, Mostafavi never asked Hodjati to pay any money at all. Furthermore, Hodjati had no ownership interest in the corporation that owned Sirous & Sons Rug Gallery, which did owe Negresh money for advertising. In addition, the complaint asserted that any alleged effort to leverage a threat to run a story about Saied Maralan in order to collect money from Hodjati could not constitute attempted extortion because at that time, the information about Saied Maralan that Mostafavi intended to publish was not a secret but had already been widely and publicly disseminated by the media.
The malicious prosecution complaint alleged that not only was the underlying action itself filed without probable cause and with malice, it alleged that, after the trial court entered judgment for Mostafavi and Negresh in the underlying action, Hodjati and Maralan filed a frivolous appeal.
III.
HODJATI AND MARALAN FILE THE ANTI-SLAPP MOTION; MOSTAFAVI AND NEGRESH
FILE AN OPPOSITION TO THE MOTION; AFTER THE TRIAL COURT DENIES THE MOTION,
HODJATI AND MARALAN APPEAL.
In September 2016, Hodjati and Maralan filed the instant anti-SLAPP motion challenging the malicious prosecution action.
Mataele did not join in the anti-SLAPP motion and is not a party in this appeal. The status of the malicious prosecution action as against Mataele is not clear in this record. --------
A.
Summary of Hodjati and Maralan's Evidence in Support of the Anti-SLAPP Motion
Hodjati and Maralan's anti-SLAPP motion was supported by their declarations and by their request for judicial notice. Although Mostafavi and Negresh filed evidentiary objections to certain evidence offered in support of the anti-SLAPP motion, it does not appear that the trial court ruled on them.
Hodjati and Maralan filed a request for judicial notice of several documents. The trial court granted their request for judicial notice as to the complaint that was filed in the underlying action, and also as to the court's minute order overruling Mostafavi's demurrer to the complaint in the underlying action.
1.
Hodjati's declaration
In a declaration filed in support of the anti-SLAPP motion, Hodjati stated she helped manage "our family business known as Sirous & Sons Rug Gallery." No evidence was presented explaining how Sirous & Sons Rug Gallery could be characterized as her family business. She stated that for years Sirous & Sons Rug Gallery had placed advertisements in Payam-e-Ashena through Negresh and Mostafavi and that there had never been any billing disputes between Sirous & Sons Rug Gallery and Negresh or Mostafavi. She stated, "Mostafavi would be in frequent contact with [Sirous & Sons Rug Gallery] for advertisement inquiry or to collect payment."
Hodjati stated that on September 19, 2011, Mostafavi began to call her which, she stated, "was in regards to [her] husband's arrest and whether [she] was willing to negotiate with him." She stated that "Mostafavi repeatedly asked [her] to pay him $3,000 or else he was going to run the story regarding [her] husband's arrest in Payam-[e-]Ashena." She denied that Mostafavi ever stated anything about an outstanding invoice dispute with Sirous & Sons Rug Gallery.
In her declaration, Hodjati also stated that on September 20, 2011, she received an e-mail from Mostafavi with the subject titled "next cover for you" which contained an attachment. Our record does not include the attachment which, according to Hodjati, distressed her and caused her to worry about Mostafavi's alleged threats to her family and repeated demand for $3,000. Hodjati contacted Detective Julia Bowman of the Laguna Beach Police Department and told Bowman "what Mostafavi had said and his demands." She forwarded Mostafavi's e-mail to Bowman. She told Bowman that she had never personally owed any money to Mostafavi and that his $3,000 demand was to secure Mostafavi's agreement not to publish his draft cover regarding her husband's arrest. Bowman told Hodjati that, if what Hodjati reported was true, Mostafavi had committed a felony; Bowman stated she would investigate further.
In October 2011, Hodjati received a phone call from Bowman notifying her that Mostafavi had been arrested for felony extortion. Bowman told Hodjati to immediately contact Bowman in the event Mostafavi made any attempt to contact Hodjati. Bowman also told Hodjati that an investigator from the Orange County District Attorney's office might contact her in the future.
2.
Maralan's declaration
In his declaration, Maralan stated that Hodjati retained him in January 2016 to represent her in the underlying action. The same day Maralan was retained was the day he filed the notice of appeal in the underlying action on Hodjati's behalf. Maralan stated he also had previously made special appearances for Mataele on behalf of Hodjati at a status conference and at a mandatory settlement conference in the underlying action.
Matalan stated he communicated with Negresh and Mostafavi's attorney, Mark B. Plummer, but never asked for a waiver of a potential malicious prosecution claim in discussing the case with Plummer. After Matalan received an e-mail from Plummer regarding the notice of appeal Matalan had filed for Hodjati, in which Plummer advised Matalan that Plummer was considering filing a malicious prosecution action, Matalan warned Plummer to "look up what [a]nti-SLAPP and [the] litigation privilege are." Matalan did not receive a response from Plummer.
After the notice of appeal was filed in the underlying action, Matalan had several conversations with Hodjati; he advised her of the appellate process, the costs, and potential outcomes. After providing such "full disclosure" to her, Hodjati agreed to abandon her appeal immediately.
On January 15, 2016, this court issued a notice of default and ordered the appeal dismissed on February 4, 2016.
B.
Summary of Mostafavi and Negresh's Evidence in Opposition to the Anti-SLAPP Motion
Mostafavi and Plummer filed declarations in support of Mostafavi and Negresh's opposition to the anti-SLAPP motion.
1.
Mostafavi's declaration
In his declaration, Mostafavi stated Sirous & Sons Rug Gallery, which is a corporation that sells Persian rugs at two locations in Orange County, regularly advertised in Payam-e-Ashena in 2010 and 2011, incurring $1,500 a month in advertising fees. By September 2011, Sirous & Sons Rug Gallery had not placed any advertising orders in a few months, but were $3,000 in arrears.
Mostafavi's declaration stated that on September 21, 2011, "while acting as the company 'account,' [he] sent the corporation that owns SIROUS & SONS RUG GALLERY an email asking [if] it was going to pay its invoices sometimes soon." This was Mostafavi's practice with all accounts receivable. He stated that at no time did he ever ask Hodjati, or any of her family members, to pay anything. Although Hodjati claimed it was a family business, neither Hodjati nor her husband had any ownership interest in the corporation that owns Sirous & Sons Rug Gallery.
Mostafavi's declaration also stated that in September 2011, Saied Maralan, who managed one of the Sirous & Sons Rug Gallery locations, was arrested for sexually assaulting 11 women, including one minor. Information about the charges against Saied Maralan, which included felony counts for committing forcible rape, attempted forcible rape, sexual penetration with a foreign object by force, and distributing pornography to a minor at Sirous & Sons Rug Gallery's Laguna Beach location, was first published on September 6, 2011 by the Laguna Beach Coastal Pilot. On September 14, 2011, the Laguna Beach Police Chief issued a press release about the charges and on September 16, 2011, the Orange County District Attorney issued a press release as well. Several other newspapers and news outlets published information about the charges, including the Orange County Register on September 14, 2011 and the Los Angeles Times on September 16, 2011.
Mostafavi declared that because Saied Maralan was of Persian descent, lived in Orange County, and some of the sexual assaults had occurred at the Laguna Beach store, the charges against Saied Maralan constituted a "highly newsworthy event" which Payam-e-Ashena would naturally want to have as its cover story. As part of covering this event, Mostafavi attempted to contact Hodjati for a statement.
After Hodjati declined to give a statement, Mostafavi sent her an e-mail to show that if she did not give her statement, he would "have to go with the negative information already featured in other media sources." Mostafavi declared: "At no time did I ever threaten Ms. Hodjati or her family in any way or even vaguely suggest that I would not print a story about this newsworthy event in exchange . . . for $3,000.00 which the corporation that owns Sirous & Sons Rug Gallery already owed Negresh." He further declared Hodjati subsequently made false claims to the local police with the "obvious intent" of attempting to prevent him from publishing the cover story he intended to publish. In his declaration, Mostafavi confirmed he was never charged "with anything" because Hodjati's claims were entirely fabricated and without any evidentiary support. He further stated in his declaration: "At no time has Ms. Hodjati or her son, Sam Maralan, ever claimed to me that any of their claims were actually true; rather they have just wanted money. It cost me thousands of dollars to defend myself in court and to win on the merits. My health was also negatively affected, in particular my heart condition. Something I have been hospitalized for."
2.
Plummer's Declaration
In his declaration, Plummer declared that he had "multiple conversations regarding the underlying case with Sam Maralan, who has always been the only person actually making demands, both before and after the trial. Mr. Maralan has always refused to discuss the merits, or lack thereof, to the underlying case, and has always told [Plummer] that the blatant lack of merit is simply not important. He has told [Plummer] on several occasion[s] that the only thing that matters is how much money [Plummer's] clients were willing to pay in order to get his mother to go away." Plummer also authenticated several exhibits, including several articles about Saied Maralan, that had been admitted at trial in the underlying action.
C.
The Trial Court Denies the Anti-SLAPP Motion; Hodjati and Maralan Appeal.
In November 2016, the trial court denied Hodjati and Maralan's anti-SLAPP motion. In the court's minute order, the court stated that, although section 425.16 applies to claims for malicious prosecution, here, Mostafavi and Negresh presented a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by them was credited.
The court also stated that Mostafavi declared that "[a]t no time did [he] ever ask Ms. Hodjati, or any of her family members, to pay anything." The court's minute order continued:
"If credited, [Mostafavi]'s testimony demonstrates that he did not request money from [Hodjati] in an attempt to extort her. Thus, assuming [Mostafavi] did not request payment from [Hodjati], [Hodjati] had no 'probable cause' to bring her prior action.
"While [Hodjati] disputes this testimony [citation], the Court does not weigh the evidence or determine credibility, for purposes of an [a]nti-SLAPP Motion. [Citation.]
"Additionally, as to Defendant Sam Maralan, Counsel Mark Plummer declares: 'Mr. Maralan has always refused to discuss the merits, or lack thereof, to the underlying case, and has always told me that the blatant lack of merit is simply not important.' [Citation.]
"Counsel further declares: 'He has told me on several occasion[s] that the only thing that matters is how much money my clients were willing to pay to get his mother to go away.' [Citation.]
"The above appears sufficient to establish a lack of probable cause and malice, as the testimony, if credited, indicates Defendants were pursuing the action in awareness of its lack of merit, in order to obtain money.
"Lastly, while Defendant Maralan asserts the litigation privilege, 'the absolute privilege found in [Civil Code] section 47(b) bars all tort causes of action, except for a claim of malicious prosecution.' [Citations.]"
The court, however, denied Mostafavi and Negresh's request for attorney fees and declined to find the anti-SLAPP motion itself frivolous.
In its minute order, the court stated it granted Hodjati and Maralan's request for judicial notice only as to the complaint filed in the underlying action and as to a minute order from the underlying action. The court explained it denied the remainder of the request for judicial notice because the moving papers cited "no basis for judicially noticing an Arrest Report . . . or a privately sent email." The court noted that Hodjati and Maralan also failed to specify which items were admitted into evidence in the underlying action.
Hodjati and Maralan appealed.
DISCUSSION
I.
SECTION 425.16 AND STANDARD OF REVIEW
Section 425.16 provides for a special motion to strike "[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 Constitution or the California Constitution in connection with a public issue." (Id., subd. (b)(1).) "Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "'The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.'" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) To establish a probability of prevailing on a claim, "'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."'" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)
We independently review the trial court's order denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) "'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." [Citation.] However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citation.]" (Id. at p. 326.) We further observe that the anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)
II.
HODJATI AND MARALAN MET THEIR BURDEN OF DEMONSTRATING THE CONDUCT
UNDERLYING PLAINTIFFS' MALICIOUS PROSECUTION CLAIM AROSE FROM PROTECTED
ACTIVITY.
A defendant can meet his or her burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating the acts underlying the plaintiff's cause of action fall within one of the categories of section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Section 425.16, subdivision (e) provides in relevant part: "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."
Hodjati and Maralan met their burden of showing the malicious prosecution action was based on conduct protected by the anti-SLAPP statute. That conduct consisted of Hodjati and Maralan's acts of filing and/or continuing to prosecute the complaint in the underlying action, and later filing a notice of appeal from the judgment entered against Hodjati. Such conduct squarely falls within section 425.16, subdivision (e)(1). As Hodjati and Maralan satisfied their burden of showing the conduct underlying the malicious prosecution action came within section 425.16, subdivision (e)(1), the burden shifted to Mostafavi and Negresh to show a probability of prevailing on the merits.
III.
MOSTAFAVI AND NEGRESH CARRIED THEIR BURDEN OF SHOWING A PROBABILITY OF
PREVAILING ON THE MERITS OF THEIR MALICIOUS PROSECUTION ACTION.
The elements of a cause of action for malicious prosecution are (1) a favorable determination on the merits of the underlying action, (2) which was brought without probable cause, and (3) which was initiated or maintained with malice. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.) For the reasons discussed post, the trial court did not err by denying the anti-SLAPP motion because Mostafavi and Negresh carried their burden of making a prima facie showing of each of the elements of their malicious prosecution claim.
First, it is undisputed Mostafavi and Negresh obtained a favorable determination on the merits of the underlying action. The trial court entered judgment in their favor after the bench trial, having found Hodjati's claims to be without any merit. Hodjati, with Maralan's assistance, initially pursued an appeal of that judgment, which she later abandoned.
Second, Mostafavi and Negresh carried their burden of showing the underlying action was brought without probable cause. Hodjati's attempted extortion and intentional infliction of emotional distress claims were both based on her allegation that Mostafavi threatened to expose the sexual assault charges that had been brought against Saied Maralan unless she paid him $3,000. As pointed out by the trial court in its minute order, Mostafavi and Negresh produced evidence, in the form of Mostafavi's declaration, showing Hodjati's claims lacked probable cause. In his declaration, Mostafavi unequivocally denied ever asking Hodjati for money in exchange for an agreement to refrain from publishing information about her husband. Mostafavi and Negresh also produced evidence (including evidence that had been admitted at trial in the underlying action) showing the information Mostafavi allegedly threatened to expose had already been widely published and circulated. Hodjati's attempted extortion claim was based on Mostafavi's alleged threat to expose a secret. (See Cross v. Cooper (2011) 197 Cal.App.4th 357, 386.) The charges against Saied Maralan were far from a secret by the end of September 2011 when Mostafavi was alleged to have threatened Hodjati. There is no contention that Mostafavi was in possession of any information that had not already been reported in the news media.
We are to credit Mostafavi's evidence in considering whether he carried his burden in opposing the anti-SLAPP motion. (See Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) In doing so, we conclude Mostafavi and Negresh have carried their burden of making a prima facie showing the attempted extortion claim was brought without probable cause. As Hodjati's intentional infliction of emotional distress claim was entirely predicated on Mostafavi's alleged outrageous conduct of exposing a secret, Mostafavi and Negresh carried their burden of showing it too was brought without probable cause for the same reason.
Finally, Mostafavi and Negresh made a prima facie showing the underlying action was initiated or maintained with malice. The California Supreme Court has explained that the malice element of malicious prosecution claims "'relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] 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. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292, italics omitted.)
In Daniels v. Robbins, supra, 182 Cal.App.4th at page 224, a panel of this court stated that in the context of malicious prosecution claims, "[i]mproper purposes can be established in cases in which, for instance (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primarily because of hostility or ill will; (3) the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim."
Mostafavi and Negresh produced the declaration of their attorney Plummer in which Plummer stated that Maralan "always refused to discuss the merits, or lack therefore, to the underlying case, and ha[d] always told [Plummer] that the blatant lack of merit is simply not important." Plummer also stated that Maralan stated "on several occasions that the only thing that matters is how much money [Mostafavi and Negresh] were willing to pay in order to get [Hodjati] to go away." Such evidence constitutes prima facie evidence Hodjati and Maralan did not believe the underlying action or the appeal from the judgment entered after trial in the underlying action was valid and that the underlying action was initiated in order to force a settlement out of Mostafavi and Negresh that had no relation to the merits of the claim.
In their appellate opening brief, Hodjati and Maralan argue the trial court's reliance on Plummer's declaration regarding "settlement demands and communications was improper" because they were made at the mandatory settlement conference during the underlying action. Nothing in the record shows that Plummer's declaration recited comments made during the mandatory settlement conference. Furthermore, Hodjati and Maralan did not file any evidentiary objections to the evidence produced by Mostafavi and Negresh in opposition to their anti-SLAPP motion, and did not object to Plummer's declaration on the ground it contained inadmissible statements under Evidence Code section 1152.
IV
MOTION TO CONSIDER ADDITIONAL EVIDENCE
Hodjati and Maralan filed a motion in this court to take additional evidence. They specifically ask this court to grant the motion to allow the court to consider an investigative/arrest report purportedly prepared by a police officer on March 24, 2017, and a minute order from the September 16, 2015 trial in the underlying action. Section 909 permits an appellate court, in limited circumstances, to take additional evidence and make factual findings in addition to those made by the trial court.
"'"Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and rule [8.252(b)] of the California Rules of Court, the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made."' [Citation.] 'The power created by the statute is discretionary and should be invoked sparingly, and only to affirm the case.' [Citation.] 'The power to take evidence in the Court of Appeal is never used where there is conflicting evidence in the record and substantial evidence supports the trial court's findings.'" (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213.)
Hodjati and Maralan seek admission of additional evidence on appeal in the form of an investigative/arrest report in an effort to obtain a reversal of the trial court's order in this case. We deny the motion to take additional evidence. In their memorandum of points and authorities filed in support of their motion to take additional evidence, Hodjati and Maralan also request that we take judicial notice of the trial court's September 16, 2015 minute order in the underlying action under Evidence Code section 452, subdivision (d). We grant the request to take judicial notice.
DISPOSITION
The order is affirmed. Respondents shall recover costs on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.