Filed 7/7/14 Chavez v. Meneshke Law Firm CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FEDERICO CHAVEZ et al.,

Plaintiffs and Respondents,

v.

MENESHKE LAW FIRM et al.,

Defendants and Appellants.

 H038557

 (Santa Cruz County

 Super. Ct. No. CV172811)

Defendants appeal from the denial of their anti-SLAPP1 motions (Code Civ. Proc., 

§ 425.16) seeking dismissal of plaintiffs’ malicious prosecution action. Defendants claim 

that the court should have granted their motions because plaintiffs did not establish a 

probability of prevailing. They argue that plaintiffs did not make a prima facie showing 

that (1) the prior lawsuit, an action for indemnity by defendants against plaintiffs that 

defendants voluntarily dismissed with prejudice, was terminated in plaintiffs’ favor, (2) 

defendants lacked probable cause for the indemnity action, and (3) defendants initiated 

the indemnity action with malice. We conclude that plaintiffs demonstrated that they had

a probability of prevailing on their malicious prosecution cause of action. Accordingly, 

we affirm the superior court’s order.

 

1

“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ” 

(Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 16, fn. 1.)
2

I. Background

Defendants Jeffrey and Dora Solinas (Solinas)

2

leased an office in a building they 

owned in Watsonville to plaintiffs Federico and Rafael Chavez “dba Truck Driving 

Institute” (Chavez) in 1997.

3

 The lease described the “demised premises” as “OFFICE 

1150 MAIN ST. SUITE No. 8.” Suite 8 was on the second floor of the building and was 

accessible only by an exterior stairway. Solinas at all times took responsibility for 

maintaining the stairway. The lease required Chavez to maintain the “demised premises” 

and “such portions adjacent to the premises, such as sidewalks, driveways, lawn and 

shrubbery” in “good condition.” The lease also provided: “Lessor shall not be liable for 

any damage or injury to Lessee, or any other person, or to any property, occurring on the 

demised premises or any part thereof, and Lessee agrees to hold Lessor harmless from 

any claims for damages, no matter how caused.” 

In November 2004, the City of Watsonville notified Solinas of numerous code 

violations at 1150 Main Street. Several of these code violations pertained to the stairway

to the second floor. The treads were worn, were not slip resistant, and were “recessed,” 

thereby creating a “trip hazard.” The risers were open and were not uniform in height. 

Solinas was notified of the specific deficiencies and ordered to correct the violations 

within 90 days. A few months later, Solinas began the process of looking into correcting 

the deficiencies. An engineer he consulted recommended that the stairway be replaced, 

but no immediate action was taken. 

In December 2005, Maria Chavez-Bello, sister of the Chavezes, visited one of her 

brothers at the 1150 Main Street, Suite 8 office. Solinas had not repaired or replaced the 

 

2

Defendant Plazita Medical Clinic (Plazita) is owned by the Solinases. It also had 

an office in the 1150 Main Street building. We will refer to the Solinases and Plazita 

jointly as Solinas.

3

Chavez operated a business in the leased office from 1997 through 2010. Solinas 

terminated the lease in November 2010. 
3

stairway.

4

After Chavez-Bello left Chavez’s second floor office, she fell down the 

stairway and was seriously injured. In December 2007, Chavez-Bello filed a negligence 

and premises liability action against Solinas seeking damages for her injuries. ChavezBello’s action was based on Solinas’s failure to remedy the code violations after the City 

notified him of them. Solinas’s insurer, defendant California Capitol Insurance 

Company, Inc. (CIC), retained defendants Meneshke Law Firm, Ayhan M. Meneshke,

and Patricia Boyes (Meneshke) to represent Solinas in the Chavez-Bello action. 

On August 20, 2009, Meneshke filed a motion on Solinas’s behalf seeking an 

order shortening time for a hearing on a request for leave of court to file a crosscomplaint for indemnity against Chavez in the Chavez-Bello action. Meneshke attached 

a declaration to his motion in which he stated that he had realized that an indemnity cause

of action existed only after Chavez-Bello testified at her deposition on August 9, 2009

that she had gone to the building to visit her brother. Meneshke also claimed that he did 

not previously notice the lease provision regarding indemnity. Chavez-Bello’s attorney 

opposed the request and produced indisputable evidence that CIC and Meneshke had long 

known of the reason for Chavez-Bello’s visit to the building that day. On August 21, the 

court denied the request on the ground that there had been no showing of good cause for 

the “11th hour” request. 

On August 25, 2009, Meneshke sent to Chavez on Solinas’s behalf a demand for 

indemnity in the Chavez-Bello action. At that time, the Chavez-Bello action was 

scheduled for trial on September 14, 2009. On September 1, 2009, Meneshke filed a 

complaint on behalf of Solinas against Chavez for indemnity, breach of contract, and 

negligence (the indemnity action).

5

 The indemnity action alleged that Chavez was

required under the lease to indemnify Solinas for any damages suffered by Chavez-Bello

 

4

Solinas replaced the stairway in 2007 or 2008. 

5

The complaint was essentially identical to the proposed cross-complaint. 
4

and to reimburse Solinas for any attorney’s fees and costs incurred in the Chavez-Bello 

action.

6

The Chavez-Bello action was ultimately tried to a jury in September 2010, and 

Chavez-Bello obtained a judgment for over $800,000 against Solinas. CIC subsequently 

negotiated a settlement of the Chavez-Bello action.

In April 2011, Meneshke dismissed with prejudice the indemnity action against 

Chavez. In December 2011, Chavez filed a malicious prosecution action against Solinas, 

Meneshke, and CIC. Solinas, Meneshke, and CIC filed special motions to strike the 

malicious prosecution cause of action under Code of Civil Procedure section 425.16. 

Meneshke’s motion claimed that Chavez would not be able to show a lack of

probable cause, a necessary element of malicious prosecution, because the lease itself 

provided probable cause. He maintained that Chavez would not be able to show that the 

indemnity action had terminated in Chavez’s favor due to lack of merit, another requisite 

element of malicious prosecution, because the dismissal of the indemnity action occurred 

due to the settlement of the Chavez-Bello action and Solinas’s desire to avoid 

unnecessary expenses. Meneshke’s argument in this respect depended solely on his own 

declaration. Meneshke declared: “Due to that settlement, [CIC] did not want to continue 

to pursue the indemnity claims against [Chavez] but wanted to close its file on the case, 

and the Solinas defendants were unwilling and unable to pursue the case themselves at 

their own expense. [CIC] instructed [Meneshke] to dismiss the indemnity lawsuit with 

prejudice and [Meneshke] did so.” Meneshke also declared: “The decision to dismiss 

the indemnity lawsuit with prejudice was a business decision by [CIC] and in no way 

 

6

In October 2009, Meneshke filed a motion on Solinas’s behalf seeking 

consolidation of the indemnity action and the Chavez-Bello action. This motion was 

apparently denied.
5

reflected on a lack of merit of that lawsuit.”7 Meneshke claimed that he at all times 

believed that the lease obligated Chavez to indemnify Solinas. 

Solinas’s motion claimed that Chavez would not be able to establish any of the 

elements of malicious prosecution. He produced no evidence other than Meneshke’s 

declaration in support of his argument regarding the favorable termination element, 

instead claiming that Chavez would not be able to produce admissible evidence of a 

favorable termination. Solinas relied on the lease to support his argument that there was 

probable cause for the indemnity action. He claimed that there was no evidence of 

malice because the indemnity action was intended to obtain indemnity. CIC’s motion 

was premised solely on its contention that Chavez would not be able to show a lack of 

probable cause. 

Chavez opposed the motions. He objected on competence, hearsay, and 

foundation grounds to the portion of Meneshke’s declaration concerning CIC’s rationale 

for requesting dismissal of the indemnity action and Solinas’s reasons for not pursuing it 

himself. Chavez renewed this objection at the hearing on the motions. The superior 

court did not expressly rule on this objection.

In support of his opposition, Chavez asked the court to take judicial notice of a 

number of documents, including portions of Solinas’s deposition testimony. Solinas had 

testified at his deposition that he maintained the stairway and that he had not yet 

 

7

CIC asks this court to take judicial notice under Evidence Code section 452, 

subdivision (g) “that it is common practice for liability insurance carriers to close a file 

without pursuing indemnity rights because such carriers put great value on closing claims 

files.” CIC provides no support for the alleged indisputability of this proposition. 

Evidence Code section 452, subdivision (g) permits judicial notice of “[f]acts and 

propositions that are of such common knowledge within the territorial jurisdiction of the 

court that they cannot reasonably be the subject of dispute.” Since CIC has provided no 

support for its claim that this proposition is a matter of common knowledge, and we are 

aware of none, we reject its request. 
6

corrected the code violations at the time of Chavez-Bello’s fall despite the fact that he 

had known of the code violations for a year. 

The court found that Chavez had shown a probability of prevailing and denied the 

motions to strike. Meneshke, CIC, and Solinas timely filed notices of appeal. 

II. Analysis

“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 shall be 

subject to a special motion to strike, unless the court determines that the plaintiff has 

established that there is a probability that the plaintiff will prevail on the claim.” (Code 

Civ. Proc., § 425.16, subd. (b)(1).) “In making its determination, the court shall consider 

the pleadings, and supporting and opposing affidavits stating the facts upon which the 

liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

“ ‘Section 425.16 posits . . . a two-step process for determining whether an action 

is a SLAPP. First, the court decides whether the defendant has made a threshold showing 

that the challenged cause of action is one arising from protected activity. . . . If the court 

finds that such a showing has been made, it must then determine whether the plaintiff has 

demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of 

action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from 

protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to 

being stricken under the statute.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 

Cal.4th 260, 278-279 (Soukup).)

“To establish a probability of prevailing, the plaintiff ‘must demonstrate that the 

complaint is both legally sufficient and supported by a sufficient prima facie showing of 

facts to sustain a favorable judgment if the evidence submitted by the plaintiff is 

credited.’ [Citations.] For purposes of this inquiry, ‘the trial court considers the 
7

pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, 

subd. (b)(2)); though the court does not weigh the credibility or comparative probative 

strength of competing evidence, it should grant the motion if, as a matter of law, the 

defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish 

evidentiary support for the claim.’ [Citation.] In making this assessment it is ‘the court’s 

responsibility . . . to accept as true the evidence favorable to the plaintiff . . . .’ [Citation.] 

The plaintiff need only establish that his or her claim has ‘minimal merit’ . . . .” (Soukup, 

supra, 39 Cal.4th at p. 291.) “In assessing the probability of prevailing, a court looks to 

the evidence that would be presented at trial, similar to reviewing a motion for summary 

judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must 

adduce competent, admissible evidence.” (Roberts v. Los Angeles County Bar Assn.

(2003) 105 Cal.App.4th 604, 613-614.) Our standard of review is de novo. (Flatley v. 

Mauro (2006) 39 Cal.4th 299, 325.) 

“To prevail on a malicious prosecution claim, the plaintiff must show that the prior 

action (1) was commenced by or at the direction of the defendant and was pursued to a 

legal termination favorable to the plaintiff; (2) was brought without probable cause; and 

(3) was initiated with malice.” (Soukup, supra, 39 Cal.4th at p. 292.) 

A. Favorable Termination

Defendants claim that Chavez failed to submit admissible evidence that could 

have supported a finding that the prior action was terminated in his favor.

“A voluntary dismissal is presumed to be a favorable termination on the merits, 

unless otherwise proved to a jury.” (Sycamore Ridge Apartments LLC v. Naumann

(2007) 157 Cal.App.4th 1385, 1400, italics added.) Therefore, defendants’ voluntary 

dismissal of the indemnity action is presumed to be a favorable termination on the merits 

unless defendants established otherwise as a matter of law. They did not. The only 

evidence defendants produced on the favorable termination issue was Meneshke’s 
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declaration. Chavez objected on hearsay and foundation grounds to the declaration, 

which purported to state CIC’s and Solinas’s reasons for not pursuing the case. Chavez 

adequately preserved this issue for appellate review (cf. Reid v. Google (2010) 50 Cal.4th 

512, 526), and he renews it on appeal.

8

 We conclude that this portion of Meneshke’s 

declaration was inadmissible because Meneshke failed to show any foundation for his 

statements based on personal knowledge. 

Meneshke declared: “Due to that settlement, [CIC] did not want to continue to 

pursue the indemnity claims against [Chavez] but wanted to close its file on the case, and 

the Solinas defendants were unwilling and unable to pursue the case themselves at their 

own expense. [CIC] instructed [Meneshke] to dismiss the indemnity lawsuit with 

prejudice and [Meneshke] did so.” Meneshke also declared: “The decision to dismiss 

the indemnity lawsuit with prejudice was a business decision of [CIC] and in no way 

reflected on a lack of merit of that lawsuit.” 

While Meneshke’s declaration was crafted to avoid explicitly recounting specific

hearsay statements, he did not provide any foundation for his alleged personal knowledge 

of Solinas’s or CIC’s reasons for the dismissal. Meneshke maintains that his statements 

were not hearsay because he did not “‘recount “a statement”’” and did not lack 

 

8

Instead of fully addressing defendants’ contentions regarding the favorable 

termination element, Chavez’s appellate brief states that the “analysis [in Chavez’s trial 

court brief] is incorporated herein by this reference thereto.” “California Rules of Court, 

rule 8.204(a)(1)(B) requires that appellate briefs ‘support each point by argument and, if 

possible, by citation of authority.’ ‘It is well settled that the Court of Appeal does not 

permit incorporation by reference of documents filed in the trial court. (Colores v. Board 

of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [130 Cal.Rptr.2d 347] [“[I]t is not 

appropriate to incorporate by reference, into a brief, points and authorities contained in 

trial court papers, even if such papers are made a part of the appellate record”].)’ 

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 20, 46 

Cal.Rptr.3d 638, 139 P.3d 30.) A Court of Appeal may refuse to consider arguments 

incorporated by reference.” (McGuan v. Endovascular Technologies, Inc. (2010) 182 

Cal.App.4th 974, 987.) We decline to consider Chavez’s trial court briefs.
9

foundation because he represented Solinas in the Chavez-Bello action. Meneshke’s 

representation of Solinas did not provide a foundation for Meneshke’s personal 

knowledge of Solinas’s reasons for the dismissal other than to imply that Solinas told

Meneshke of his reasons, which would be hearsay and would not establish personal 

knowledge. Meneshke’s claim to have personal knowledge of CIC’s reasons for 

directing Meneshke to dismiss the Chavez-Bello action was similarly flawed. He made 

no foundational showing that he had personal knowledge of CIC’s reasons. On the face 

of his declaration, one could only infer that a CIC representative had told him those 

reasons, which would be hearsay and would not establish Meneshke’s personal 

knowledge of those reasons. It follows that Chavez’s objections to this portion of 

Meneshke’s declaration were valid, and this evidence was inadmissible.

Since a voluntary dismissal is presumed to be a favorable termination, and the 

only evidence produced by defendants to rebut this presumption was inadmissible, 

Chavez did not fail to make out a prima facie showing on the favorable termination 

element.

B. Lack of Probable Cause

Defendants contend that Chavez failed to make a prima facie showing that they 

lacked probable cause for the indemnity action. 

The presence or absence of probable cause is a question of law. Probable cause 

exists if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel 

Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886 (Sheldon Appel).) “[P]robable cause to 

bring an action does not depend upon it being meritorious, as such, but upon it being 

arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable 

attorney would have thought the claim tenable.” (Wilson v. Parker, Covert & Chidester

(2002) 28 Cal.4th 811, 824.) “[T]he probable cause issue is properly determined by the 

trial court under an objective standard; it does not include a determination whether the 
10

attorney subjectively believed that the prior claim was legally tenable.” (Sheldon Appel,

at p. 881.) 

The question is whether any reasonable attorney would have thought the lease 

provided a tenable basis for an indemnity action. The lease indisputably established that 

the “demised premises” was limited to Suite 8. Nothing in the lease suggested that the 

“demised premises” included the stairway. While the lease required Chavez to maintain

the “demised premises” and “such portions adjacent to the premises, such as sidewalks, 

driveways, lawn and shrubbery” in “good condition,” the lease’s indemnity provision did 

not purport to encompass any damage or injury that occurred on “portions adjacent to the 

premises.”9 It provided: “Lessor shall not be liable for any damage or injury to Lessee, 

or any other person, or to any property, occurring on the demised premises or any part 

thereof, and Lessee agrees to hold Lessor harmless from any claims for damages, no 

matter how caused.” (Italics added.) 

Since the stairway indisputably was not “any part” of the “demised premises”

under the clear provisions of the lease, no reasonable attorney would have believed that 

the indemnity provision applied. The indemnity provision was explicitly limited to 

“damage or injury . . . occurring on the demised premises or any part thereof.” (Italics 

added.) Chavez-Bello’s injuries indisputably “occurr[ed] on” the stairway, which clearly 

was not “part of” Suite 8. Hence, there was a lack of probable cause for the indemnity 

action.

Defendants claim that the lease was “sufficiently ambiguous” to permit the 

introduction of extrinsic evidence to determine its meaning. But the express indemnity 

cause of action in the indemnity action did not allege that it was based on anything other 

 

9

We need not consider whether a reasonable attorney would have believed that it 

was legally tenable to claim that the stairway was included in “such portions adjacent to” 

Suite 8 as the indemnity provision, which was the sole basis for the express indemnity 

cause of action, did not extend to such “portions.”
11

than the express language of the lease. Defendants also argue that there may have been 

probable cause for the negligence cause of action or one of the other causes of action in 

the indemnity action. That is irrelevant. A malicious prosecution cause of action may 

succeed even if some of the theories or causes of action in the underlying action were 

based on probable cause so long as one or more theories or causes of action lacked 

probable cause. (Crowley v. Katleman (1994) 8 Cal.4th 666, 679.) Here, the express 

indemnity cause of action lacked probable cause. Chavez could prevail in his malicious 

prosecution action based on the lack of probable cause for that cause of action alone. 

C. Malice

Defendants claim that Chavez failed to show that he had a probability of 

prevailing on the malice element. 

“The malice element of malicious prosecution goes to the defendants’ subjective 

intent for instituting the prior case. [Citation.] Malice does not require that the 

defendants harbor actual ill will toward the plaintiff in the malicious prosecution case, 

and liability attaches to attitudes that range ‘“from open hostility to indifference. 

[Citations.]”’ [Citation.] Malice may be inferred from circumstantial evidence, such as 

the defendants’ lack of probable cause, supplemented with proof that the prior case was 

instituted largely for an improper purpose. [Citation.] This additional proof may consist 

of evidence that the prior case was knowingly brought without probable cause or was 

brought to force a settlement unrelated to its merits.” (Cole v. Patricia A. Meyer & 

Associates, APC (2012) 206 Cal.App.4th 1095, 1113-1114.) 

Here, defendants initiated the indemnity action without probable cause just before 

the underlying action brought by Chavez’s sister was scheduled to be tried. Solinas was 

obviously aware of the lease’s indemnity provisions much earlier, and the explanation 

proffered by Meneshke for the late filing was rebutted. A reasonable inference could be 

drawn from the timing of the indemnity action and its lack of probable cause that 
12

defendants filed it for the purpose of trying to force Chavez-Bello to settle her action 

against Solinas. Such an improper purpose would qualify as malice. Chavez did not fail 

to show a probability of prevailing on the malice element.

III. Disposition

The order is affirmed. 

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.