Filed 3/4/13 The Duringer Law Group v.MacMillan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE DURINGER LAW GROUP, et al.,

 Plaintiffs and Appellants,

v.

ALAN MACMILLAN, et al.,

 Defendants and Respondents.

 G046637

 (Super. Ct. No. 30-2011-00512549)

 O P I N I O N

Appeal from orders of the Superior Court of Orange County, Ronald L. 

Bauer, Judge. Affirmed.

The Duringer Law Group, Stephen C. Duringer, Eric J. Bautista, Edward L. 

Laird II; Law Office of Edward E. Dollar, Edward E. Dollar for Plaintiffs and Appellants.

Hunt & Adams, and John C. Adams III, for Defendant and Respondent 

Alan MacMillan.

Law Offices of Rex T. Reeves, and Rex T. Reeves, for Defendants and 

Respondents Chambers, Noronha & Kubota, Gary L. Chambers, Peter A. Noronha, 

Yoshiaki C. Kubota, and Jonathan Dwork. 
2

The Duringer Law Group, Stephen C. Duringer, and R. Scott Andrews 

(hereafter referred to collectively and in the singular as DLG, unless the context indicates 

otherwise), appeal from the order dismissing its malicious prosecution complaint against 

the respondents after the trial court granted the respondents‟ special motion to strike the 

complaint as a strategic lawsuit against public participation (anti-SLAPP motion). (Code 

Civ. Proc., § 425.16.)1 The respondents are DLG‟s former client Alan MacMillan 

(MacMillan) and his attorneys, the law firm of Chambers, Noronha & Kubota (CNK), 

and attorneys Gary L. Chambers, Peter A. Noronha, Yoshiaki C. Kubota, and Jonathan 

Dwork (sometimes collectively referred to as the attorney defendants, unless the context 

indicates otherwise), who sued DLG for malpractice related to DLG‟s handling of an 

unlawful detainer action on MacMillan‟s behalf. DLG contends the trial court erred by 

granting the anti-SLAPP motion because it presented sufficient evidence of a probability 

of prevailing. DLG also challenges the order awarding the respondents their attorney 

fees as an abuse of discretion. We conclude DLG‟s contentions are meritless, and we 

affirm both orders.

FACTS & PROCEDURE

This malicious prosecution action arises out of DLG‟s representation of 

MacMillan in an unlawful detainer action against one of his commercial real property 

tenants, and like the Hydra of mythology, has grown many heads. We begin with 

background on each piece of litigation the unlawful detainer action has spawned 

summarized from two prior opinions from this court—MacMillan v. Andrews et al.

(July 1, 2011, G044208) [nonpub. opn.] (MacMillan) and Munoz v. MacMillan (2011) 

 

1 Code of Civil Procedure section 425.16 authorizes a special motion to 

strike a Strategic Lawsuit Against Public Participation (SLAPP) action. Section 425.16 is 

referred to as the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, 

fn. 1.) All further statutory references are to the Code of Civil Procedure, unless 

otherwise indicated. 
3

195 Cal.App.4th 648 (Munoz)—supplemented where necessary from the record before us 

in this appeal. 

1. The Unlawful Detainer Action 

MacMillan owns multi-unit commercial real property in Garden Grove, 

managed by Kenski Properties, Inc. (Kenski Properties). DLG is the law firm 

Kenski Properties routinely used to handle evictions on properties it managed. 

(MacMillan, supra, G044208, typed opinion, p. 2.) In 2000, a unit in MacMillan‟s 

building was leased to Mill Inn, Inc. (Mill Inn), for use as an Internet café under a lease 

providing for a term of five years, with an option for two five-year renewal terms. The 

lease required six-months‟ advance written notice to exercise the renewal options. The 

lease also provided that even if the lessor consented to an assignment of the lease, such 

an assignment would not transfer the renewal options unless the lessor specifically 

consented to also transfer the renewal options. (MacMillan, supra, G044208, typed 

opinion, p. 3.) In 2003, Mill Inn assigned “„all of its rights, title and interest in and to the 

lease‟” to Concepcion Munoz, who operated a bar on the premises. The written 

assignment was prepared and signed by Linda Kenski, owner of Kenski Properties, as 

agent for MacMillan. (Ibid.) 

The original lease term expired on May 30, 2006 (the lease had been 

amended once to extend the original term), and Kenski Properties did not want to keep 

Munoz as a tenant. On June 1, 2006, it served a 30-day notice of termination of tenancy 

on Munoz. “On June 7, 2006, Munoz‟s attorney sent a letter to Kenski Properties 

attaching a copy of a letter dated October 23, 2005, from Munoz addressed to Kenski 

Properties stating she wanted to exercise her option to renew. The attorney stated 

Munoz‟s letter had been mailed to Kenski Properties on October 23, 2005.” (MacMillan, 

supra, G044208, typed opinion, p. 3.)

On July 6, 2006, DLG filed the unlawful detainer action for MacMillan 

(MacMillan v. Munoz (Super. Ct. Orange County, 2006, No. 06WL03662)) (the Unlawful 
4

Detainer Action) based on the 30-day notice. On October 20, 2006, the trial court entered 

judgment for MacMillan and a writ of possession was issued. Munoz appealed but did 

not seek a stay of the writ of possession. In January 2007, MacMillan recovered 

possession of the premises and found new tenants. (MacMillan, supra, G044208, typed 

opinion, pp. 3-4.)

In January 2008, the Appellate Division of the Superior Court of Orange 

County, in an unpublished decision, reversed the unlawful detainer judgment and 

remanded with directions to enter a judgment in Munoz‟s favor. (MacMillan v. Munoz

(Super. Ct. Orange County (2008) App. Div. No. AP14837.) The issues tried in the 

unlawful detainer trial included whether the renewal option was ever assigned to Munoz 

and whether she timely exercised the option. As to the former issue, the appellate 

division concluded the written assignment encompassed the options because it stated 

Mill Inn was assigning to Munoz all of its rights under the lease. As to the latter issue, 

the appellate division concluded Munoz had timely exercised her option to renew the 

lease via the October 25, 2005, letter to Kenski Properties, and MacMillan had not 

produced sufficient evidence to rebut the Evidence Code section 641 presumption that a 

letter properly addressed and mailed is received.

On remand, Kenski Properties did not place Munoz back in possession. 

The trial court awarded her approximately $25,000 in costs and attorney fees against 

MacMillan. (MacMillan, supra, G044208, typed opinion, p. 4.)

2. Munoz’s Breach of Contract Action 

In May 2009, Munoz filed a breach of contract action against MacMillan 

(the Munoz Breach of Contract Action), alleging MacMillan breached the lease by 

wrongfully evicting her from the premises. (Munoz, supra, 195 Cal.App.4th at 

pp. 651-652.) By this time, MacMillan was no longer being represented by DLG and had 

retained CNK as his counsel. Although CNK had already filed MacMillan‟s separate 

legal malpractice action against DLG (described below), on August 3, 2009, it filed a 
5

cross-complaint for MacMillan against DLG in the Munoz Breach of Contract Action 

alleging the same causes of action alleged in the legal malpractice action. On October 

30, 2009, DLG‟s demurrer to the cross-complaint was sustained without leave to amend 

on the ground there was another action pending encompassing the same causes of action. 

MacMillan obtained a summary judgment in the Munoz Breach of Contract 

Action on the theory that Munoz‟s eviction was not “wrongful” because it was pursuant 

to a valid and enforceable court order that was acted upon by law enforcement. (Munoz, 

supra, 195 Cal.App.4th at pp. 652-653.) This court reversed the summary judgment 

concluding Munoz “was entitled to seek compensation for losses she allegedly incurred 

following enforcement of the erroneous initial judgment in the unlawful detainer action. 

Munoz could have suffered economic loss as a result of her eviction even if the eviction 

was not „wrongful‟ as a matter of tort law. Munoz‟s most straightforward remedy was to 

seek restitution in the underlying unlawful detainer action, not to bring a subsequent 

action for breach of contract. But the law does not bar Munoz from seeking contract 

damages in a separate action.” (Id. at p. 650.) 

3. MacMillan’s Legal Malpractice Action

On December 30, 2008, MacMillan, through the defendant attorneys, filed 

the underlying legal malpractice action against DLG alleging professional negligence 

arising out of its representation of MacMillan in the unlawful detainer action (the 

Malpractice Action). In short, “[MacMillan] alleged [DLG] failed to properly raise, 

investigate, and litigate issues concerning assignment and exercise of the renewal options 

and whether the lease also could have been terminated due to Munoz‟s violation of the 

lease‟s use provisions. MacMillan‟s complaint contained causes of action for legal 

malpractice and breach of fiduciary duty.” (MacMillan, supra, G044208, typed opinion, 

p. 5.) The complaint also alleged causes of action for intentional and negligent infliction 

of emotional distress. 
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On March 5, 2010, DLG filed a motion for summary judgment/summary 

adjudication, which was set for hearing May 20, 2010. In its moving papers, DLG 

presented evidence concerning how it received unlawful detainer cases (five to 10 cases a 

month) from Kenski Properties, stating the actions were virtually always based upon the 

notice Kenski Properties had already served on the tenant (e.g., three-day notice to pay 

rent or quit; 30-day notice to terminate tenancy). Around June 23, 2006, 

Kenski Properties asked DLG to begin eviction proceedings to evict Munoz from the 

premises and the case was assigned to DLG associate attorney Andrews. Duringer 

generally supervised Andrews, but he had no direct involvement in this case. 

Kenski Properties sent DLG the relevant documents and the 30-day notice it had already 

prepared and served on Munoz on June 1, 2006, and based on those documents, DLG 

filed the unlawful detainer action. 

DLG asserted that at the time of the Unlawful Detainer Action trial, 

Kenski Properties had no documentary evidence to show it did not receive Munoz‟s 

October 23, 2005, letter exercising her option to renew the lease and had no evidence 

regarding the processing of mail in its office. Kenski Properties and MacMillan 

acknowledged Munoz had the option to renew because Linda Kenski sent an e-mail to 

MacMillan after the unlawful detainer action was filed advising him Munoz had not 

timely exercised her option to renew. Moreover, in responding to interrogatories 

propounded by Munoz, Kenski Properties employee Carleen Kezeor answered “No,” to 

the question asking “whether MacMillan contends that Munoz was never granted an 

option to . . . extend the lease . . . .” (MacMillan, supra, G044208, typed opinion, p. 6.) 

With regards to allegations DLG failed to adequately investigate potential 

violations of the lease use restrictions, or to pursue eviction of Munoz on the theory she 

was not in compliance with lease conditions, or was committing waste or nuisance on the 

premises, DLG asserted Kenski Properties never served Munoz with notice she must 

comply with conditions in the lease. It also asserted Kenski Properties did not have 
7

sufficient evidence to give notice terminating the tenancy due to failure to comply with 

lease terms or waste. (MacMillan, supra, G044208, typed opinion, p. 7.) Finally, DLG 

asserted MacMillan could not prove causation or damages. 

MacMillan‟s opposition to the summary judgment motion in the 

Malpractice Action suffered from several procedural problems with regard to his separate 

statement of undisputed facts. At his April 28, 2010, deposition MacMillan waived his 

emotional distress claims (more on that anon), and although he did not amend his 

pleading, in his opposition he conceded summary adjudication of those causes of action 

was proper. (MacMillan, supra, G044208, typed opinion, p. 5, fn. 2.) 

MacMillan contended there were material issues of fact as to his causes of 

action for professional negligence and breach of fiduciary duty. He included a 

declaration from Kezeor, Kenski Properties‟ vice president of administration, regarding 

complaints she had received about Munoz‟s customers‟ behavior around the premises 

(littering, defecating, and urinating around the buildings and cars, gang activity, threats to 

other tenants), and she wrote to Munoz about the problems warning her they could 

constitute a breach of the lease. Kezeor declared she did not receive a copy of the letter 

dated October 23, 2005, saying Munoz was exercising her option to renew, until after she 

served Munoz with the 30-day notice. Kezeor declared she spoke to Andrews before 

sending DLG any of the documents pertaining to the Munoz eviction telling him about 

the potential nuisance issues. She also told Andrews that Kenski Properties had not 

previously received the October 2005 letter. (MacMillan, supra, G044208, typed 

opinion, pp. 8-9.)

Kezeor declared no one from DLG had discussed the unlawful detainer 

complaint with anyone from Kenski Properties before it was filed. Andrews did not 

review Kezeor‟s responses to special interrogatories propounded by Munoz, including the 

question, “„Do [you] contend that when [you] consented to the assignment of [Mill Inn‟s] 

interest in the [lease], [you] did not consent to [Munoz] being assigned an option to 
8

extend . . . [,]‟” to which Kezeor replied, “No.” Kezeor declared she was the only 

witness Andrews called at trial and he presented no evidence about nuisance conditions at 

the premises even though Andrews was given a declaration from another tenant about the 

conditions. (MacMillan, supra, G044208, typed opinion, p. 9.) 

MacMillan also submitted a declaration from a litigation attorney with 

expertise in commercial unlawful detainer actions, who opined Andrews lacked the 

requisite experience to handle the case, and breached the standard of care by failing to 

adequately investigate or present evidence concerning Munoz‟s exercise of the option to 

renew the lease. (MacMillan, supra, G044208, typed opinion, p. 10.)

The trial court granted DLG‟s motion for summary judgment because of 

the procedural defects in MacMillan‟s separate statement. (MacMillan, supra, G044208,

typed opinion, p. 10.) On appeal, in our opinion filed July 1, 2011, we concluded the trial 

court abused its discretion by granting the summary judgment motion solely due to 

procedural defects. However, upon the requisite de novo review, we concluded 

MacMillan had not carried his burden to demonstrate there were triable issues of fact as 

to his causes of action—in particular because he had not demonstrated causation, i.e., that 

but for the alleged negligence, he would have prevailed on the appeal of the unlawful 

detainer judgment he obtained against Munoz. 

There were three issues MacMillan claimed Andrews had botched in the 

Unlawful Detainer Action: “(1) whether Mills Inn‟s assignment of the lease to Munoz 

included assignment of the option terms; (2) whether Munoz timely exercised the 

options; and (3) whether Munoz was committing waste or maintaining a nuisance in 

violation of the use provisions of the lease.” (MacMillan, supra, G044208,

typed opinion, p. 18.) As to the first issue, the appellate division of the superior court 

concluded the plain meaning of the assignment language was that the option terms had 

been assigned to Munoz, and MacMillan‟s separate statement contained no objective 

evidence that an assignment of the options was not intended. (MacMillan, supra, 
9

G044208, typed opinion, at pp. 19-20.) As to the second issue, MacMillan claimed 

Andrews was negligent in failing to present evidence to overcome the presumption of 

mailing, but he made no showing as to what evidence existed that would have overcome 

the presumption. (MacMillan, supra, G044208, typed opinion, pp. 20-22.) And as to the 

third issue, MacMillan made no showing as to how the claimed obnoxious behavior by 

Munoz‟s customers violated the lease terms or would have supported her eviction. 

(MacMillan, supra, G044208, typed opinion, pp. 22-23.)

4. DLG’s Malicious Prosecution Action 

On October 3, 2011, DLG filed the instant malicious prosecution action 

(the Malicious Prosecution Action) against the respondents (i.e., MacMillan and the 

attorney defendants). The original complaint contained two malicious prosecution causes 

of action: one premised on the filing and maintenance of the Malpractice Action and one 

premised on the filing and maintenance of the cross-complaint in the Munoz Breach of 

Contract Action. On December 2, 2011, DLG filed a first amended complaint containing 

the same allegations, and attaching the same exhibits, but deleting headings for two 

causes of action and combing all the allegations concerning the Malpractice Action and 

the cross-complaint in the Munoz Breach of Contract Action into a single malicious 

prosecution cause of action. 

A. Anti-SLAPP Motion

The respondents jointly filed an anti-SLAPP motion contending the 

Malicious Prosecution Action arose out of protected activity and DLG would not be able 

to demonstrate a probability of prevailing on the merits, in particular with regards to the 

probable cause and malice elements of the cause of action. They additionally asserted the 

“de facto” second cause of action for malicious prosecution premised on prosecution of 

the cross-complaint in the Munoz Breach of Contract Action was time-barred. 

MacMillan separately asserted he acted on advice of counsel in filing the 

Malpractice Action, and DLG would not be able to overcome this defense. The
10

anti-SLAPP motion was accompanied by declarations from the attorney defendants, 

MacMillan, and employees of Kenski Properties, describing the circumstances 

surrounding the Unlawful Detainer Action and the Malpractice Action. 

i. Attorneys’ Declarations

Chambers was the attorney who primarily handled the Malpractice Action 

for MacMillan, and the only attorney in the CNK office involved in filing the Malpractice 

Action complaint or the cross-complaint in the Munoz Breach of Contract Action. One 

of his associate attorneys, Dwork, did some work on the matter, but always under 

Chambers‟ direction and supervision. The other two attorneys in the office, Noronha and 

Kubota, had only “de minimis” involvement in the Malpractice Action—one covered for 

Chambers by appearing at a status hearing and on the motion to tax costs; the other

handled processing payment of costs and discovery sanctions awarded to DLG in the 

Malpractice Action. 

Chambers declared the Malpractice Action was referred to his firm by Tom 

Cummings, the attorney who picked up where DLG left off in handling the Unlawful 

Detainer matter. Cummings explained to Chambers that although DLG had initially 

succeeded in the Unlawful Detainer Action, Andrews did such a poor job, failing to rebut 

defenses or present available evidence, that the judgment could not withstand appeal, and 

the resulting reversal had left MacMillan responsible for Munoz‟s costs in the Unlawful 

Detainer Action and exposed to significant liability in the Munoz Breach of Contract 

Action. MacMillan, a retired veterinarian, lived primarily in Hawaii and was not 

intimately involved in management of the property—Kezeor and Linda Kenski were the 

persons most knowledgeable about the facts. Chambers learned from Kezeor and Linda 

Kenski that MacMillan was “shocked” about what had happened in the Unlawful 

Detainer Action—he was “scared, very concerned, worried and fearful” over being left 

responsible for costs and exposed to significant liability in the Munoz Breach of Contract 

Action. After discussing the facts about the Unlawful Detainer Action with Kezeor, 
11

Linda Kenski, and MacMillan, Chambers was convinced MacMillan had viable claims 

against DLG. Chambers filed the cross-complaint in the Munoz Breach of Contract 

Action out of an abundance of caution because the claims were related and he did not 

want to take a chance of the malpractice claim being deemed a compulsory 

cross-complaint. The cross-complaint was extremely short-lived—it was dismissed on 

DLG‟s demurrer within two months of being filed. Chambers denied he filed or 

prosecuted the Malpractice Action with malice—he had no feeling of malice or ill will 

toward any of the defendants in the Malpractice Action. 

Attorneys Dwork, Noronha, and Kubota each filed a declaration confirming 

their limited involvement in the Malpractice Action and denying they had any ill will or 

feeling of malice towards DLG. 

ii. MacMillan’s Declaration 

MacMillan declared he had hired Kenski Properties as his agent to manage 

the property in 1998. To MacMillan‟s knowledge, when the Mill Inn lease was assigned 

to Munoz in 2003, Kenski Properties did not specifically consent to assignment of the 

options to renew, and at no time did he consent to the renewal options being assigned to 

Munoz. MacMillan believed the end date for Munoz‟s lease term was May 30, 2006, 

with no option to renew. Before expiration of Munoz‟s lease, Linda Kenski and Kezeor 

both told him about nuisance-type conditions at the premises, and MacMillan concurred 

with their recommendation that when the lease term expired, Munoz should not be 

continued as a tenant. 

MacMillan was extremely distressed about what happened after the initial 

favorable judgment in the Unlawful Detainer Action. First, although Munoz had been 

evicted and MacMillan thought he was “„in the clear,‟” he learned Munoz was pursuing 

her appeal of the Unlawful Detainer Action and was not told by DLG the appeal was still 

active until a few days before his brief was due. When he learned Munoz had obtained a 

reversal of the unlawful detainer judgment, MacMillan was told he had to “„appeal the 
12

appeal,‟” and Andrews was optimistic the Court of Appeal would reverse. In March 

2008, MacMillan was informed that according to Andrews, “the higher court had refused 

to hear the „appeal of the [Unlawful Detainer Action] appeal‟ and that we were basically

out of options.” MacMillan later learned (in the course of the current litigation), that this 

court refused to review the appellate division‟s ruling for jurisdictional reasons—the 

appeal (i.e., the transfer request) was not timely filed by DLG—and DLG had billed 

MacMillan for the untimely appeal and its efforts at obtaining a writ from this court 

directing the superior court to accept the untimely transfer request. MacMillan knew 

Munoz was planning on filing a lawsuit against him seeking $5 million in damages and 

$1 million in attorney fees. MacMillan was “seriously frightened and extremely 

concerned about losing [his] life savings and retirement.” 

MacMillan was certain DLG had mishandled the Unlawful Detainer Action 

from the beginning and authorized Kenski Properties to find new counsel to file suit 

against DLG. In authorizing the Malpractice Action to be filed, MacMillan was acting on 

facts and information known to himself and his agents that were provided fully to 

Chambers, and upon Chambers‟ advice that he had viable claims. MacMillan declared 

that while he was extremely upset about DLG‟s mishandling of the Unlawful Detainer 

Action and the disastrous outcome, he did not hold any malicious or other bad feelings 

against DLG, Duringer, or Andrews. 

iii. Lewis Kezeor’s Declaration 

Lewis Kezeor (Lewis) was employed by Kenski Properties since 2002 and 

was the person responsible for all mail collection, handling, and distribution; he was also 

the bookkeeper. Had Lewis been called as a witness at the Unlawful Detainer Action 

trial, he would have testified he was the only person who picked up mail from 

Kenski Properties‟ post office box or building. Lewis explained in detail the office 

procedures for handling incoming mail and was very familiar with how Kenski Properties 

maintained tenant files. A letter exercising an option to renew was considered a very 
13

important document and would be placed in the tenant file. Had such a letter been 

received it would have been opened first by Lewis, then distributed by him to Linda 

Kenski for review, and placed in the tenant file. Lewis declared he had no recollection of 

himself, Linda Kenski, or Kezeor being out of the office on vacation or sick in late 

October or early November 2005. Lewis declared he had no recollection of receiving an 

option renewal letter from Munoz in the fall of 2005, and it was inconceivable that had 

such a letter ever been received by the office, it would have been lost. 

iv. Carleen Kezeor’s Declaration 

Kezeor filed a 26-page declaration accompanied by 29 exhibits (almost 

120 pages) relating to the Unlawful Detainer Action and her communications with DLG 

attorneys—in particular with Andrews. She explained the Mill Inn lease was executed by 

Linda Kenski on behalf of MacMillan. Linda Kenski signed the consent to assignment of 

the lease to Munoz, but there was no writing whereby MacMillan specifically consented 

to assignment of the renewal terms to Munoz. Once the lease was assigned to Munoz, 

Kenski Properties operated under the belief the lease would expire on May 30, 2006. 

After Munoz took possession, Kenski Properties began receiving complaints about her 

bar and the conduct of her customers and “extreme nuisance conditions.” There was also 

a brewing dispute between Munoz and another tenant. On May 22, 2006, Kenski 

Properties wrote Munoz warning her the problems at the bar constituted a violation of her 

lease. By the end of May, Kenski Properties and MacMillan decided they wanted Munoz 

out of the building but knew she would be a problem to evict.

In late May, before they sent any kind of notice to Munoz, Kezeor and 

Linda Kenski called DLG about the situation and spoke directly with Andrews about how 

they should proceed with the Munoz eviction. Although Andrews was handling this 

specific case, Kezeor and Linda Kenski understood and believed Duringer was actively 

supervising him. They specifically told Andrews about the nuisance conditions, that 

other tenants were threatening to move out because of the conditions, that the lease 
14

expired on May 30, 2006, and that they expected Munoz would put up a fight. Andrews 

advised them to evict by serving a 30-day notice of termination of tenancy upon 

expiration of the lease, which they did. 

On June 2, 2012, after serving Munoz with the 30-day notice, Kezeor 

received a call from Munoz‟s daughter who said she and Munoz understood the lease was 

for a 15-year term. Kezeor explained the five-year lease expired May 30, 2006, and the 

two five-year options were not assigned to Munoz (just the initial lease term), and even if 

the options had been assigned, they had not been timely exercised. Munoz‟s daughter 

asked if they could exercise the options now; Kezeor told her it was too late. After that 

telephone conversation, Munoz faxed the letter dated October 2005, stating she was 

exercising the option to renew. Kezeor declared the letter was not in the tenant file, or 

any other tenant file, and she was confident no such letter had ever been received by 

Kenski Properties—i.e., that Munoz had backdated it. Kezeor explained in detail about 

Kenski Properties‟ internal mail handling and processing procedures, and Kenski 

Properties‟ filing procedures, offering that if such a letter had ever been received by 

Kenski Properties it would have been in the tenant file. In 16 years at Kenski Properties, 

there had never been another instance when such an important letter had been lost. Had 

Kenski Properties received such a letter in October 2005, Kezeor would have 

remembered it because exercising a five-year renewal option was very significant. 

After receiving the faxed letter, Kezeor spoke with Andrews and told him 

they would have to proceed with the unlawful detainer and it was clearly not going to be 

a routine case. She told Andrews she believed the letter had been backdated and there 

was no record of Kenski Properties having received it. She also told Andrews the 

renewal options had not been assigned to Munoz when the lease was assigned—no one 

consented to assignment of the renewal options. Andrews assured her everything was 

under control. 
15

DLG filed the Unlawful Detainer Action on July 6, 2006. No one from 

DLG ever contacted Kenski Properties or MacMillan about the contents of the complaint. 

No one from DLG ever suggested to Kenski Properties that if Munoz was claiming she 

had the option to renew and had validly exercised that option, Kenski Properties could 

start the eviction process over based on the nuisance conditions. 

Andrews sent Kezeor Munoz‟s written discovery requests, which included 

a question, “Do [you] contend that when [you] consented to the assignment of [the lease], 

[you] did not consent to [Munoz] being assigned an option to extend the [lease] term?” 

No one from DLG helped Kezeor with her responses. Kezeor mistakenly answered 

“No”(the question contained a double negative), when she meant to answer “Yes”, i.e., 

that they contended Munoz did not have an option to renew. Andrews later served 

Munoz with supplementary responses, changing the response to “Yes” but he allowed the 

original “No” response to be introduced into evidence at the Unlawful Detainer Action 

trial. 

Kezeor declared she was the only witness Andrews called at the Unlawful 

Detainer Action trial (other than the person who served the 30-day notice), and he only 

spoke to her for five to 10 minutes in the hallway to prepare her to testify. Andrews 

asked no questions and presented no other evidence concerning mail receipt procedures 

and filing to substantiate Kenski Properties‟ claim that the October 2005 renewal letter 

had never been received by Kenski Properties. Andrews made no inquiries into Kezeor‟s 

telephone conversation with Munoz‟s daughter (i.e., asking if Munoz could exercise the 

option to renew late), which conversation was inconsistent with Munoz‟s later claim she 

had exercised the option in 2005. Andrews asked no questions about whether there had 

been a consent to assignment of the renewal options to Munoz. 

Kezeor also detailed the conditions at the premises (fights in the parking 

lot, vandalism, broken bottles, and patrons urinating, defecating, and engaging in sex acts 

in the parking lot), and the numerous complaints from other tenants who were threatening 
16

to vacate. Andrews was well aware of this information as he had utilized a declaration 

from one of the unhappy tenants to prevent Munoz from obtaining a stay to prevent her 

being locked out of the premises while the appeal of the Unlawful Detainer Action 

judgment was pending. 

After the appellate division reversed the unlawful detainer judgment, 

Kenski Properties authorized DLG to file an appeal (i.e., a request to transfer to the Court 

of Appeal). Andrews represented to Kenski Properties the appeal had been filed, but this 

court refused to hear it. DLG submitted several bills to MacMillan relating to the appeal. 

Kezeor later learned the appellate division refused to accept the request for transfer for 

filing because the notice was not timely. Moreover, DLG had billed MacMillan $8,000 

relating to its unsuccessful petition in this court for a writ of mandate seeking to compel 

the appellate division to accept the notice of transfer. Kezeor observed MacMillan and 

his wife were “deeply distressed” about how badly the Unlawful Detainer Action was 

handled, and about “losing their retirement” when all they were trying to do was get rid 

of a problem tenant. 

Linda Kenski‟s 26-page declaration was substantially identical to Kezeor‟s. 

B. Opposition

DLG‟s opposition to the anti-SLAPP motion focused exclusively on the 

attorney defendants‟ conduct in the Malpractice Action. It detailed various discovery 

disputes between the attorney representing DLG, Eric Bautista, and the CNK attorneys 

prosecuting the Malpractice Action. At MacMillan‟s deposition, it became clear to DLG 

that MacMillan had little input in the actual preparation of the complaint in the 

Malpractice Action. The opposition did not address MacMillan‟s defense that he was 

relying on the advice of counsel in authorizing the filing of the complaint. The 

opposition asserted this court‟s opinion in the Malpractice Action affirming the summary 

judgment established the Malpractice Action was filed without probable cause. 
17

DLG provided declarations from Duringer and Bautista. Duringer‟s 

declaration detailed discovery disputes during the Malpractice Action that lead to 

imposition of sanctions against CNK. He attached excerpts from MacMillan‟s deposition 

in which MacMillan indicated he had little personal knowledge of the facts regarding the 

Unlawful Detainer Action litigation, he did not personally retain DLG, and he testified he 

was waiving his claims for emotional distress and had not specifically authorized 

including those causes of action in the Malpractice Action. Duringer declared it was 

clear MacMillan was personally unaware of most of what CNK was doing with regard to 

prosecuting the Malpractice Action and he was at most “only peripherally” involved. 

Duringer‟s declaration criticized the respondents‟ moving papers for being focused on 

“attempt[ing] to re-litigate the [Unlawful Detainer A]ction.” He declared attorney 

Chambers refused to discuss settlement in the Malpractice Action and pointed out the 

complaint in the Malpractice Action sought damages “in excess of the jurisdictional 

limits of the . . . court.”

Bautista filed his declaration again detailing the discovery disputes in the 

Malpractice Action. His declaration contained no information concerning the Unlawful 

Detainer Action. He declared that Chambers and Dwork “never once articulated an 

interest in settlement” of the Malpractice Action. 

DLG‟s opposition was also accompanied by separate evidentiary objections 

to the respondents‟ request for judicial notice and to each of the declarations submitted 

with the anti-SLAPP motion. All told DLG‟s evidentiary objections totaled 285 pages 

containing hundreds of individual objections. 

C. Reply Declarations 

In reply, the respondents submitted additional pages from MacMillan‟s 

deposition in which he testified he authorized Chambers to file the complaint in the 

Malpractice Action. MacMillan filed a supplemental declaration explaining he 

authorized filing the complaint in the Malpractice Action based on the facts—he declared 
18

that when he testified at his deposition that he did not “authorize” the emotional distress 

causes of action; all he meant was that he did not specifically direct what causes of action 

would be included in the complaint because he would not have known what were viable 

causes of action and what were not. When he testified he was “waiving” emotional 

distress damages, he did not say he did not have emotional distress—only that he did not 

want to get bogged down in that—he just wanted his economic damages. 

CNK employees and attorneys Chambers, Dwork, and Kubota submitted 

declarations regarding discovery disputes and motions to compel discovery, in the 

Malpractice Action, and CNK‟s immediate payment of the minimal sanctions imposed 

against it. 

D. Ruling

At oral argument on the anti-SLAPP motion, counsel for the respondents 

noted DLG‟s opposition contained no evidence demonstrating they could prevail on the 

Malicious Prosecution Action in particular because nothing in the opposition addressed 

whether there was probable cause to file the Malpractice Action, i.e., whether DLG had 

mishandled the original Unlawful Detainer Action. The respondents submitted extensive 

evidence supporting their belief DLG mishandled the Unlawful Detainer Action. 

Counsel also argued DLG made absolutely no reference to MacMillan‟s advice of 

counsel defense in its opposition. 

In ruling, the trial court began by noting it was beyond dispute the first 

prong was satisfied—the Malicious Prosecution Action arose out of protected activity. 

The court then moved on to whether DLG had demonstrated a probability of prevailing. 

It first separated out the short-lived cross-complaint that had been filed in the Munoz 

Breach of Contract Action. It concluded DLG had not demonstrated a favorable 

termination of that cross-complaint, and in any event any claim based upon that pleading 

was time-barred. The court next explained DLG had not demonstrated a probability of 

prevailing because it had not demonstrated malice and lack of probable cause. As to 
19

malice, the court noted most of DLG‟s objections were completely irrelevant to the 

dispositive issues. It overruled DLG‟s evidentiary objections to the parts of the 

declarations in which the declarants‟ stated they had no ill will towards DLG as “the 

beginning of [the respondents‟] showing that there was no malice.” The court then 

explained the only evidence DLG presented was pertaining to the attorney defendants‟ 

conduct of discovery in the Malpractice Action but that did not equate to malice. 

Although the attorney defendants lost some discovery motions, and were ordered to pay 

sanctions, they immediately complied with those sanction orders—”they played by the 

rules.” There was no evidence the discovery “mishaps” were undertaken with malice—

”it‟s just litigation. That‟s what happens.” The court moved on to probable cause. It 

observed the fact DLG prevailed on the summary judgment motion did not establish lack 

of probable cause and the inclusion of the emotional distress claims in the Malpractice 

Complaint was within the realm of reasonable “good aggressive lawyering.” 

After the court announced its ruling granting the anti-SLAPP motion, and 

directed the respondents‟ attorney to prepare a written order, DLG‟s counsel asked the 

court if it ruled on “every single [one]” of DLG‟s evidentiary objections—almost 

300 pages of them. The court reiterated it did not believe it was necessary to rule on all 

of the objections—it ruled on the relevant ones pertaining to the lack of malice—

everything else was “largely really undisputed . . . about the history of the litigation. It‟s 

in the records.”2 After granting the respondents‟ anti-SLAPP motion striking DLG‟s 

 

2 DLG‟s opening brief contains a single sentence vaguely criticizing the trial 

court for not ruling on each of the evidentiary objections. Assuming the trial court‟s 

failure to rule on the objections preserves them for appeal (see Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 531-532 [in summary judgment context, when trial court fails to 

rule on evidentiary objections, “it is presumed that the objections have been overruled, 

the trial court considered the evidence in ruling . . . , and the objections are preserved on 

appeal”]), we nonetheless observe DLG had not raised any specific evidentiary objection 

on appeal supported by any reasoned analysis. 
20

complaint and dismissing the action, the court subsequently awarded the respondents 

$105,025 in costs and attorney fees. 

DISCUSSION

1. Trial Court Properly Granted Anti-SLAPP Motion

It is well established that we review a trial court‟s ruling on an anti-SLAPP 

motion de novo.3 (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley); Slaney v. 

Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 319.) It is also well established that even 

when we conduct a de novo review, we still must presume the trial court‟s ruling is 

correct, and the appellant has the burden of affirmatively demonstrating error. (Jones v. 

Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1376; 

Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) 

Section 425.16, subdivision (b)(1), provides, “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.”

In ruling on an anti-SLAPP motion, the trial court engages in a two-step 

analysis. First, the defendant must show the activity underlying the cause of action arises 

from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 

53, 67.) If so, then the plaintiff must show a likelihood of prevailing on the cause of 

action. (Ibid.) In meeting that burden, “the plaintiff „must demonstrate that the 

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

 

3 In view of our de novo standard of review, we need not address DLG‟s 

argument the trial judge exhibited “overt bias” against it in this case. Moreover, we have 

reviewed the entire record including the reporter‟s transcript from the hearing and find 

DLG‟s incessant attacks on the intellect, integrity, and impartiality of the trial judge, 

particularly those contained in its reply brief, completely unwarranted. 
21

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

credited.‟ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 

821 (Wilson), superseded by statute on other grounds as stated in Hutton v. Hafif (2007) 

150 Cal.App.4th 527, 547.)

A. Cause of Action Arising from Protected Activity 

DLG concedes a malicious prosecution action is subject to an anti-SLAPP 

motion. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 (Jarrow); 

see also Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291; Kolar v. 

Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537; White v. 

Lieberman (2002) 103 Cal.App.4th 210, 221.)4 Accordingly, we may move directly to 

the second prong of the analysis—whether DLG satisfied its burden of demonstrating a 

probability of prevailing on its malicious prosecution action. 

B. Probability of Success

To meet its burden to establish a prima facie case of malicious prosecution, 

DLG was required to demonstrate “„“that the prior action (1) was commenced by or at 

the direction of the defendant and was pursued to a legal termination in his, plaintiff‟s, 

favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated 

with malice [citations].”„ [Citation.]” (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 

313; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (Sheldon Appel).)

 i. Probable Cause

The trial court properly granted the anti-SLAPP motion because DLG 

failed to establish the Malicious Prosecution Action was brought without probable cause. 

 

4 Bizarrely, in its opposition papers below, DLG did not concede this point. 

Despite the clear Supreme Court authority that a malicious prosecution action is by its 

very nature an action subject to an anti-SLAPP motion, DLG asserted respondents failed 

to produce any evidence to satisfy the “arising out of” prong of the analysis, criticizing 

them for instead “burden[ing the trial] court with a barrage of irrelevant drivel” 

pertaining to the Unlawful Detainer Action.
22

For purposes of the anti-SLAPP statute “[o]ne has probable cause to bring a civil action if 

his claim is legally tenable, as determined on an objective basis. [Citation.] The issue of 

whether probable cause exists presents a question of law for the court and requires a 

determination of whether any reasonable attorney would have considered the action 

legally tenable in light of the facts known to the underlying plaintiff (or, in this case, the 

lawyer) at the time the suit was filed. [Citations.] [¶] If any reasonable attorney would 

have considered the action legally tenable, probable cause is established. [Citation.] This 

„lenient standard‟ for bringing a civil action reflects „the important public policy of 

avoiding the chilling of novel or debatable legal claims‟ and allows attorneys and 

litigants „“to present issues that are arguably correct, even if it is extremely unlikely that 

they will win. . . .” [Citation.]‟ [Citation.] Only those actions that „“any reasonable 

attorney would agree [are] totally and completely without merit”„ may form the basis for 

a malicious prosecution suit. [Citation.]” (Padres L.P. v. Henderson (2003) 

114 Cal.App.4th 495, 517 (Padres), citing Wilson, supra, 28 Cal.4th 811, and 

Sheldon Appel, supra, 47 Cal.3d 863; see also Plumley v. Mockett (2008) 

164 Cal.App.4th 1031, 1047 [“Probable cause is a low threshold designed to protect a 

litigant‟s right to assert arguable legal claims even if the claims are extremely unlikely to 

succeed”].) 

Because application of the probable cause standard is generally a question 

of law, it is reviewed on appeal de novo. (Padres, supra, 114 Cal.App.4th at p. 517.) In 

applying this standard, we consider the pleadings and evidence submitted by the parties 

in a light most favorable to the defendant without weighing the evidence or assessing 

credibility. (§ 425.16, subd. (b)(2); Sycamore Ridge Apartments LLC v. Naumann (2007) 

157 Cal.App.4th 1385, 1402; Padres, supra, 114 Cal.App.4th at p. 509.) We must 

“consider both the factual circumstances established by the evidence and the legal theory 

upon which relief is sought. A litigant will lack probable cause for his action either if he 

relies upon facts which he has no reasonable cause to believe to be true, or if he seeks 
23

recovery upon a legal theory which is untenable under the facts known to him.” 

(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165.) “[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, supra, 28 Cal.4th at p. 824.)

a. MacMillan’s Advice of Counsel Defense 

Preliminarily, we may easily affirm the order granting the anti-SLAPP 

motion as to MacMillan individually because DLG failed to make any attempt to defeat 

his advice of counsel defense. 

“„Probable cause may be established by the defendants in a malicious 

institution proceeding when they prove that they have in good faith consulted a lawyer, 

have stated all the facts to him, have been advised by the lawyer that they have a good 

cause of action and have honestly acted upon the advice of the lawyer.‟ [Citations.]” 

(DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1397-1398; 

Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1558.) 

MacMillan specifically raised the “advice of counsel” defense in the 

anti-SLAPP motion. In his declaration MacMillan stated that in authorizing the 

Malpractice Action to be filed, he was acting on facts and information known to himself 

and his agents that were provided fully to attorney Chambers, and upon Chambers‟ 

advice that he had viable claims. DLG‟s opposition to the anti-SLAPP motion did not 

even mention MacMillan‟s advice of counsel defense, let alone contain any admissible 

evidence proving MacMillan did not honestly rely on his counsel‟s advice in filing the 

underlying Malpractice Action, or did not state all the facts to counsel. Thus, DLG failed 

to make a prima facie showing below that it could defeat that defense. Although the trial 

court did not expressly rule on the advice of counsel defense, our review is de novo. 

DLG‟s belated attempt to address the advice of counsel defense for the first 

time in its reply brief is too little too late. DLG asserts MacMillan failed to prove the 
24

defense. But DLG bore the burden of demonstrating a probability of prevailing, and once 

the defense was raised by MacMillan, the burden was on DLG to demonstrate the defense 

did not apply. 5 (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 

(The Rutter Group 2012) ¶ 7:1015, p. 7(II)-49 [to demonstrate a “„probability of success 

on the merits,‟” “[p]laintiff must present evidence to overcome any privilege or defense 

to the claim that has been raised”], citing Flatley, supra, 39 Cal.4th at p. 323 [on 

anti-SLAPP motion Civ. Code § 47, subd. (b) “litigation privilege presents a substantive 

defense plaintiff must overcome to demonstrate probability of success on the merits”].) 

DLG made no attempt to do so, and thus the anti-SLAPP motion was properly granted as 

to MacMillan.6

 

5 Following oral argument in this matter, DLG submitted a letter to this court 

stating it addressed MacMillan‟s advice of counsel defense in a “surreply” it filed two 

court days before the hearing on the anti-SLAPP motion. There is nothing in the record 

indicating DLG obtained trial court permission to file a surreply. Moreover, the surreply 

mentions the defense only in passing, contains no meaningful analysis of the defense or 

discussion of admissible evidence proving MacMillan did not in good faith rely on 

counsel‟s advice, and does not satisfy DLG‟s burden.

6 We may also easily affirm the order granting the anti-SLAPP motion to the 

extent DLG asserted a separate malicious prosecution cause of action based upon the 

short-lived malpractice cross-complaint filed against DLG in the Munoz Breach of 

Contract Action. The cross-complaint was filed on August 3, 2009, and dismissed 

October 30, 2009, following DLG‟s successful demurrer because there was another 

action pending (i.e., the underlying Malpractice Action). DLG‟s original complaint in 

this action, filed October 3, 2011, alleged a separate cause of action based on this 

pleading, but in its first amended complaint, it combined the allegations with those 

pertaining to the underlying Malpractice Action. The trial court concluded DLG‟s first 

amended complaint contained a “de facto” second cause of action based on the 

cross-complaint. DLG failed to demonstrate a probability of prevailing on that second 

cause of action because it was time-barred on its face (see Vafi v. McCloskey (2011) 

193 Cal.App.4th 874, 879-883 [one-year statute of limitations applies to malicious 

prosecution against attorney]), and DLG failed to demonstrate the dismissal constituted a 

favorable termination (LaPena v. Wolfe (1986) 177 Cal.App.3d 481, 484 [favorable legal 

termination must reflect merits of the underlying action]). DLG does not challenge this 

conclusion on appeal. 
25

b. The Attorney Defendants

We turn then to whether DLG met its burden to demonstrate the attorney 

defendants lacked probable cause to file and prosecute the Malpractice Action. We agree 

with the trial court that it did not. 

(i). The Legal Malpractice and Breach of Fiduciary Duty Cause of Action

DLG argues it demonstrated the attorney defendants had no probable cause 

to file the underlying Malpractice Action. We disagree.

DLG relies primarily upon the fact that we affirmed the summary judgment 

in its favor. DLG may not rely upon our prior opinion affirming the summary judgment 

in its favor to establish it had a probability of prevailing on its malicious prosecution 

claim. In Jarrow, supra, 31 Cal.4th at page 742, our Supreme Court held, “[t]he entry of 

summary judgment for the defense on an underlying claim on grounds of insufficient 

evidence does not establish as a matter of law that the litigant necessarily can „state[] and 

substantiate[]‟ [citation] a subsequent malicious prosecution claim.” As Jarrow pointed 

out, “summary judgment on the underlying claim does not establish lack of probable 

cause as a matter of law” (ibid.), and “obtaining summary judgment for the defense on 

the underlying claim does not necessarily establish the malice element of a subsequent 

malicious prosecution claim.” (Id. at p. 743.)

The elements of a cause of action for legal malpractice are: “„(1) the duty 

of the attorney to use such skill, prudence and diligence as members of the profession 

commonly possess; (2) a breach of that duty; (3) a proximate causal connection between 

the breach and the resulting injury; and (4) actual loss or damage. [Citations.]‟ 

[Citation.]” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.) In our prior 

opinion, we concluded MacMillan failed to present sufficient evidence on causation and 

damages, i.e., that but for DLG‟s alleged negligence in handling the Unlawful Detainer 

Action, the result would have been different. (MacMillan, supra, G044208, typed 

opinion, p. 18.) 
26

As noted by the trial court, DLG presented no evidence in opposition to the 

anti-SLAPP motion concerning its handling of the Unlawful Detainer Action—indeed 

DLG characterized the respondents‟ evidence in this regard as being “irrelevant drivel[.]” 

DLG‟s evidentiary showing on the anti-SLAPP motion focused almost entirely on the 

litigation tactics employed by the attorney defendants in the underlying 

Malpractice Action. On appeal, DLG continues to assert evidence concerning how it 

handled the Unlawful Detainer Action (particularly the declarations of Kenski Properties 

personnel Lewis, Kezeor, and Linda Kenski) has no bearing on the probable cause 

element of its Malicious Prosecution Action. Nonsense.

DLG filed and prosecuted the Unlawful Detainer Action for MacMillan. 

The underlying Malpractice Action was premised upon the respondents‟ belief Andrews 

mishandled the Unlawful Detainer Action resulting in a reversal of the Unlawful Detainer 

judgment and MacMillan‟s exposure to costs in the Unlawful Detainer Action, as well as 

to significant damages in the Munoz Breach of Contract Action. The respondents‟ 

believed Andrews and DLG failed to adequately present two issues that were litigated in 

the Unlawful Detainer Action: whether the renewal options were ever assigned to Munoz 

and, if so, whether she timely exercised those options. They also believed Andrews and 

DLG failed to investigate or raise an alternative basis on which Munoz might be evicted: 

violation of the lease covenants by virtue of her customers‟ obnoxious conduct in and 

around the premises. 

Although we concluded in our prior opinion MacMillan failed to make an 

adequate evidentiary showing that would have allowed him to prevail on the malpractice 

and breach of fiduciary duty causes of action, that does not mean the facts concerning the 

Unlawful Detainer Action had become irrelevant as to whether there was probable cause 

to file and prosecute the Malpractice Action or that it was filed and prosecuted with 

malice. We concluded MacMillan failed to present evidence in opposition to summary 
27

judgment creating a material issue of fact as to causation.7 But that did not mean the 

evidence did not exist—only that MacMillan failed to sufficiently present it in the 

opposition to the summary judgment motion.

For example, on the issue of whether the option terms were assigned to 

Munoz, we observed the appellate division of the superior court interpreted the plain 

language of the assignment (Mill Inn assigned “all of its rights, title and interest in and to 

the [l]ease”) to include an assignment of the option terms. We found MacMillan‟s 

opposition included no evidence leading to a different interpretation of the assignment 

agreement, noting that “[s]ignificantly, MacMillan offered no evidence the assignment 

was not intended (or at least was not understood by MacMillan and his agent who drafted 

the assignment) to include the options terms.” (MacMillan, supra, G044208, typed 

opinion, pp. 19-20.) 

In their declarations in support of the anti-SLAPP motion, Kezeor and 

Linda Kenski declared there was no writing specifically consenting to the assignment of 

the option terms, and they understood Munoz‟s lease would expire upon the original lease 

term. MacMillan declared neither he nor Kenski Properties consented to assignment of 

the options to renew, and at no time did MacMillan intend for the renewal options to be 

assigned to Munoz. 

Additionally, we observed with regard to Kezeor‟s response of “No” to the 

Munoz-propounded interrogatory asking “whether MacMillan contends that Munoz was 

never granted an option to the [sic] extend the lease,” that although MacMillan claimed 

the response was confusing, “nowhere in [Kezeor‟s] declaration does she state it was not 

 

7 In the underlying Malpractice Action, MacMillan conceded his breach of 

fiduciary duty cause of action was duplicative of his legal malpractice cause of action. 

(MacMillan, supra, typed opinion p. 17.) In challenging the order granting the antiSLAPP motion, DLG similarly asserts there was no probable cause to assert the breach of 

fiduciary duty cause of action for the same reason as the legal malpractice cause of 

action—no evidence of causation of damages. 
28

the answer she intended to give.” (MacMillan, supra, G044208, typed opinion,

pp. 19-20.) In her declaration on the anti-SLAPP motion Kezeor stated it was not the 

answer she intended (i.e., because the question contained a double negative she answered 

“No”, when she meant “Yes”), and further that Andrews was aware of her erroneous 

response because he prepared and served a corrected response on Munoz (changing the 

answer to “Yes”).

With regard to the issue of timeliness of Munoz‟s exercise of the option to 

renew, in reversing the Unlawful Detainer judgment, the appellate division found 

MacMillan had not presented sufficient evidence to rebut “the [Evidence Code 

section 641] presumption a letter properly addressed and mailed is received” and 

Kezeor‟s testimony she never saw the letter was not relevant to whether it had in fact 

been received in Kenski Properties‟ office “absent evidence as to how mail was handled 

in the office (i.e., who opened the mail, how was it processed and filed?).” (MacMillan, 

supra, G044208, typed opinion, p. 20.) Although MacMillan argued attorney Andrews 

was negligent in not presenting such evidence at the Unlawful Detainer trial, the 

summary judgment opposition made no offer as to what that evidence was. 

“MacMillan‟s opposing papers contain no evidence concerning how mail was received in 

Kenski Properties office. To prove that „but for‟ the attorneys‟ alleged breach of the 

standard of care the result on the mailing issue would have been different, MacMillan had 

to have shown there was in fact evidence from which a trier of fact could have found the 

presumption of mailing was overcome. The court cannot speculate that such evidence 

existed.” (MacMillan, supra, G044208, typed opinion, p. 21.) 

In the anti-SLAPP motion, the respondents filled in that evidentiary gap, 

providing detailed evidence in declarations from Kenski Properties employees, Lewis, 

Kezeor, and Linda Kenski, as to how mail was received and processed in the office from 

which a trier of fact could have reasonably concluded Munoz the letter was never 

received by Kenski Properties. (See Tremayne v. American SMW Corp. (1954) 
29

125 Cal.App.2d 852 [Evid. Code, § 641 presumption overcome by testimony of office 

manager about handling of incoming mail and that the letter mailed by defendants had 

never been received in the office]; see also Bonzer v. City of Huntington Park (1993) 

20 Cal.App.4th 1474, 1480-1481 [Evid. Code, § 641 presumption overcome by testimony 

of office employee about who received mail, how mail was routed, no one recalled seeing 

document, document should be in the files, and diligent search turned up no record of it].) 

Remarkably, in their opposition to the anti-SLAPP motion, DLG offered no evidence to 

contradict the factual assertions made in the Kenski Properties employees‟ declarations. 

Based on the foregoing, the respondents reasonably believed DLG was negligent in its 

handling of the Unlawful Detainer Action and had probable cause to file the underlying 

Malpractice Action, in particular with regard to issues that were tried regarding whether 

the options were assigned to Munoz and if so whether she timely exercised them. For 

this reason we need not consider the respondents‟ arguments concerning whether 

nuisance-type issues should also have been explored. 

(ii). The Emotional Distress Causes of Action 

DLG contends it demonstrated the attorney defendants lacked probable 

cause to include claims for negligent and intentional infliction of emotional distress in the 

underlying Malpractice Action. (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 582, 

596-597 [litigant who successfully defended against two claims, only one of which was 

supported by probable cause, could maintain a malicious prosecution action on the 

second claim].) Again, we disagree.

DLG contends the emotional distress causes of action were legally 

untenable because emotional distress damages are not recoverable for legal malpractice. 

Although that is generally the rule, there are “cases in which the attorney‟s

conduct—while not necessarily intentional or in bad faith—is so reckless and the 

resulting damage is so foreseeable that imposition of liability is proper.” (Pleasant v. 

Celli (1993) 18 Cal.App.4th 841, 854, disapproved on other grounds in Adams v. Paul
30

(1995) 11 Cal.4th 583, 591, fn. 4; see e.g., Holliday v. Jones (1989) 215 Cal.App.3d 

102 [emotional distress damages where attorney‟s incompetence lead to plaintiff‟s 

wrongful conviction and incarceration]; Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d 

688, 718 [emotional distress damages where attorney‟s negligence and breach of 

fiduciary duties resulted in $500,000 excess judgment against plaintiff putting her 

through “several years of unnecessary harassment, emotional distress” during which she 

was “liv[ing] on the edge of a financial volcano”].) 

DLG contends the claims were factually untenable because the attorney 

defendants had no facts suggesting MacMillan had in fact suffered emotional distress and 

at his deposition in the underlying Malpractice Action, MacMillan waived those claims. 

Preliminarily, in their anti-SLAPP motion the respondents provided the court with 

evidence of MacMillan‟s emotional distress demonstrating there was at least a minimal 

factual basis for pleading the emotional distress causes of action in the Malpractice 

Action. Chambers declared he was told by Kezeor and Linda Kenski that MacMillan, a 

retired veterinarian, was “shocked” about what had happened in the unlawful detainer 

action—he was “scared, very concerned, worried and fearful” over being left responsible 

for costs and exposed to significant liability in the Munoz Breach of Contract Action. 

Kezeor and Linda Kenski confirmed MacMillan was distraught about the turn of events 

in the Unlawful Detainer Action that left him exposed to significant liability. MacMillan 

described his significant distress over the results of the Unlawful Detainer Action—he 

knew Munoz was planning on filing a lawsuit against him seeking $5 million in damages 

and $1 million in attorney fees and he was “seriously frightened and extremely concerned 

about losing [his] life savings and retirement.” DLG makes much of MacMillan‟s 

deposition testimony in which he was unable to produce the kind of objective evidence 

that would normally support emotional distress claims (e.g., medical records and reports, 

evidence of physical manifestations of emotional distress), and he waived his emotional 
31

distress claims. But that does not equate to proof there was no factual basis for including 

the claims in his complaint. 

Additionally, DLG argues that even after MacMillan waived his emotional 

distress claims at his deposition, the attorney defendants continued to aggressively pursue 

the claims rather than dismiss them. (See Zamos v. Stroud (2004) 32 Cal.4th 958, 970 

[attorney‟s discovery of information showing claim lacks merit may subject him to 

liability if he continues to pursue the action].) That is a mischaracterization of the record. 

MacMillan‟s deposition was taken April 28, 2010, after DLG‟s summary judgment 

motion was filed. MacMillan‟s opposition to the summary judgment motion was filed 

May 14, 2010, less than two weeks later, in which he specifically conceded he would not 

contest summary adjudication of the emotional distress causes of action and the punitive 

damages claims. The attorney defendants did not continue to pursue the emotional 

distress claims after MacMillan‟s deposition and the emotional distress claims were not 

“so completely lacking in apparent merit that no reasonable attorney would have thought 

[it] tenable.” (Wilson, supra, 28 Cal.4th at p. 824.) 

 ii. Malice

Even were we to agree with DLG that the attorney defendants lacked 

probable cause to allege emotional distress causes of action in the Malpractice Action, 

DLG‟s opposition failed for another reason—they failed to demonstrate the malice 

element of the malicious prosecution tort. 

As noted in Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 

494 (Downey), “The „malice‟ element . . . 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 . . . 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. [Citation.]” 
32

Here, there is no evidence supporting a finding of malice on the part of the 

attorney defendants (or MacMillan for that matter) in filing the underlying 

Malpractice Action. The attorney defendants and MacMillan provided declarations 

stating they had no ill will or hostility towards DLG. DLG offered no contrary evidence. 

Rather, DLG asserts malice should be inferred from the lack of probable cause. “Merely 

because the prior action lacked legal tenability, as measured objectively . . . without 

more, would not logically or reasonably permit the inference that such lack of probable 

cause was accompanied by the actor‟s subjective malicious state of mind.” (Downey, 

supra, 66 Cal.App.4th at p. 498, cited with approval in Jarrow, supra, 31 Cal.4th at 

p. 743.) “To infer malice from the evidence supporting lack of probable cause, the 

parties‟ prefiling behavior must have been clearly unreasonable. The degree of 

unreasonable behavior necessary to support an inference of malice often creates 

confusion and unnecessary litigation. . . . „ . . . [T]his result [inference of malice] is not

automatic. To complete proof of malicious prosecution, the presence of malice must be 

found as a matter of fact. As a consequence, it always remains a possibility that 

unreasonable behavior in terms of the nature of the prefiling behavior of the attorney, 

even though it would support a conclusion that there was no probable cause to file, would 

nevertheless not support an inference of malice. . . . Thus, in a given case, unreasonable 

behavior which could lead to a determination that there was a lack of probable cause to 

file, might not provide a sufficient basis to infer malice, and without malice no case of 

malicious prosecution can be proved.‟ [Citation.]” (Grindle v. Lorbeer (1987) 

196 Cal.App.3d 1461, 1465-1466.) 

DLG argues the attorneys‟ discovery tactics in the course of the 

Malpractice Action demonstrate malice. We disagree. DLG points to two discovery 

mishaps in the underlying Malpractice Action both of which resulted in modest sanctions 

against the attorney defendants: DLG‟s motion to compel further responses to 

interrogatories was granted and the attorney defendants were ordered to pay $269.50 in 
33

sanctions; DLG‟s motion to compel MacMillan to appear for deposition in Orange 

County (MacMillan resided primarily in Hawaii) was granted and the attorney defendants 

ordered to pay $98 in sanctions. There is nothing suggesting those discovery disputes 

were unusual. The attorney defendants timely paid the ordered sanctions, and they 

certainly do not support an inference of malice. Nor can the fact the attorney defendants‟ 

did not formally dismiss the emotional distress claims after MacMillan‟s deposition 

support an inference of malice given that less than two weeks later they expressly agreed 

summary adjudication on those claims was appropriate.8 In short, DLG failed to meet its 

burden to demonstrate the attorney defendants (or MacMillan) acted with malice and the 

anti-SLAPP motion was properly granted. 

2. No Abuse of Discretion in Awarding Attorney Fees

DLG challenges the reasonableness of the amount of attorney fees awarded 

to the respondents. The respondents counter that we lack jurisdiction to consider the 

challenge. We conclude we have jurisdiction, but we reject DLG‟s challenge to the 

amounts awarded.

A. Background

The order granting the respondents‟ anti-SLAPP motion and dismissing 

DLG‟s complaint was entered February 3, 2012. The order included that “[the 

respondents] are entitled, upon noticed motion, to an award of attorney fees and costs 

pursuant to . . . 425.16[, subdivision] (c).” 

On March 2, 2012, the respondents filed a joint motion for attorney fees, set 

for hearing on March 26, 2012. CNK‟s sought attorney fees of $127,617; MacMillan 

sought attorney fees of $17,062. CNK‟s trial counsel, Rex T. Reeves, submitted his 

 

8 DLG also accused the attorney defendants of including the emotional 

distress causes of action in the Malpractice Action to coerce DLG into settlement—that 

argument is of course directly contradicted by Duringer‟s and Bautista‟s declarations 

criticizing CNK for refusing to discuss settlement of the Malpractice Action.
34

declaration in support of the motion. He detailed his educational background and 

experience. Reeves explained his standard billing rate was $350 per hour, although in 

this matter he was only billing CNK $250 with the understanding that if there was “any 

excess award” of costs and fees it would be paid directly to Reeve‟s office. Reeves 

detailed the hours he spent in connection with the anti-SLAPP motion, 336.05 hours in 

total, and provided invoices detailing those hours, which at his normal billing rate of 

$350 totaled $117,617.50. Reeves additionally detailed the time spent in preparing the 

attorney fees motion, another 28.57 hours at $350 per hour, a total of $9,999.50, or a 

grand total of $127,617. MacMillan‟s trial counsel, John C. Adams, submitted his

declaration detailing MacMillan‟s attorney fees request also supported by invoices. His 

standard billing rate was $350 (although as of January 1, 2012, it had increased to $450), 

he had spent a total of 45.25 hours reviewing and assisting on the joint anti-SLAPP 

motion and another 3.5 hours on the joint attorney fees motion—which at his rate of $350 

totaled $17,062.50. 

On March 9, 2012, DLG filed its notice of appeal from the court‟s 

February 3, 2012, order granting the anti-SLAPP motion. 

On March 13, 2012, DLG filed its opposition to the respondents‟ motion 

for attorney fees. Although DLG did not challenge the reasonableness of Reeves‟s and 

Hunt‟s $350 an hour billing rate, it argued the hours the attorneys spent (in particular 

Reeves‟s) should be substantially reduced because most of the hours related to time spent 

reviewing the Unlawful Detainer Action and the Malpractice Action and “relitigating” 

them in the context of the anti-SLAPP motion. 

The attorney fees motion was heard on March 26, 2012. The court 

concluded there was significant repetition in the tasks performed by the respondents‟ 

attorneys in preparing the anti-SLAPP motion. On April 2, 2012, the court entered its 

order awarding CNK $85,000 in attorney fees, MacMillan $16,000 in attorney fees, plus 

total costs of $3,525. DLG did not file a separate appeal from the attorney fees order. 
35

B. Appealability

The respondents contend we lack jurisdiction to consider DLG‟s challenge 

to the attorney fees award because it did not separately appeal that order. As a general 

matter, “[a] postjudgment order awarding attorney fees is separately appealable,” and 

“failure to appeal an appealable order ordinarily deprives the appellate court of 

jurisdiction to review the order.” (R. P. Richards Inc. v. Chartered Construction Corp.

(2000) 83 Cal.App.4th 146, 158; Martin v. Inland Empire Utilities Agency (2011) 

198 Cal.App.4th 611, 632 [in the SLAPP context].) A notice of appeal merely from a 

“„judgment . . . and certain other rulings and orders‟” is generally inadequate to challenge 

a later order regarding the amount of attorney fees. (Soldate v. Fidelity National 

Financial, Inc. (1998) 62 Cal.App.4th 1069, 1074-1075.) There is an exception, 

however, when a judgment expressly recognizes an entitlement to attorney fees (as it did 

in this case), but the amount is left for later determination. As the courts have observed, 

“requiring a separate appeal from [the fee] order when the judgment expressly makes an 

award of costs and/or fees serves no apparent purpose.” (Grant v. List & Lathrop (1992) 

2 Cal.App.4th 993, 997, italics omitted.) In such a case, a notice of appeal from the 

judgment “challenges the appropriateness of awarding fees” and puts the respondents “on 

notice that appellants are seeking review of the award.” (Ibid.; cf. Silver v. Pacific 

American Fish Co. Inc. (2010) 190 Cal.App.4th 688, 693 [where judgment refers to 

award of attorney fees but record reflects entitlement was actually adjudicated at the 

postjudgment hearing, separate appeal required].) 

C. Reasonableness of Attorney Fees

DLG challenges the reasonableness of the attorney fees awarded. “The 

award of defendant‟s attorney fees, recoverable under section 425.16, subdivision (c), is 

subject to review under established rules. „The reasonableness of attorney fees is within 

the discretion of the trial court, to be determined from a consideration of such factors as 

the nature of the litigation, the complexity of the issues, the experience and expertise of 
36

counsel and the amount of time involved. [Citation.]‟ [Citations.] The trial court 

possesses personal expertise in the value of the legal services rendered in the case before 

it. [Citation.] On appeal, a fee award is reviewed for abuse of discretion.” (Russell v. 

Foglio (2008) 160 Cal.App.4th 653, 661.)

“„“While the concept „abuse of discretion‟ is not easily susceptible to 

precise definition, the appropriate test has been enunciated in terms of whether or not the 

trial court exceeded „“the bounds of reason, all of the circumstances before it being 

considered. . . .”„ [Citations.]” [Citation.] “A decision will not be reversed merely 

because reasonable people might disagree. „An appellate tribunal is neither authorized 

nor warranted in substituting its judgment for the judgment of the trial judge.‟ 

[Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, 

a trial court should be presumed to have acted to achieve legitimate objectives and, 

accordingly, its discretionary determinations ought not be set aside on review.” 

[Citation.]‟ [Citation.]” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 

1242, 1249-1250 (Maughan).) Further, a trial court‟s attorney fees award will not be set 

aside “absent a showing that it is manifestly excessive in the circumstances.” (Children’s 

Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782.)

DLG first complains the court failed to adequately articulate its 

methodology for making the award. “The amount of an attorney fee award under the 

anti-SLAPP statute is computed by the trial court in accordance with the familiar 

„lodestar‟ method. [Citation.] Under that method, the court „tabulates the attorney fee 

touchstone, or lodestar, by multiplying the number of hours reasonably expended by the 

reasonable hourly rate prevailing in the community for similar work. [Citations.]‟ 

[Citation.]” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 491.) “In awarding fees the 

trial court is not constrained by the amount sought by the successful moving parties 

[citation], but is obligated to award „reasonable attorney fees under section 425.16 [that] 

adequately compensate [] them for the expense of responding to a baseless lawsuit.‟ 
37

[Citations.]” (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92.) Accordingly, in 

making its award, the trial court may adjust the request up or down depending on 

circumstances. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774.)

While acknowledging the trial court utilized the lodestar method, DLG 

argues there was no evidence of the “unadorned lodestar figure used by the court.” To 

the contrary, there was detailed evidence in the form of declarations and billing invoices 

from Reeves and Adams. DLG also complains there is no evidence relating to any of the 

factors considered by the trial court in reducing the award. But given that court reduced 

the requested award, we fail to see how DLG was prejudiced. Moreover, the trial court 

explained why it was reducing the fees from the original request—there were redundant 

items. 

Other than its general assertions the amounts awarded were simply too 

much, DLG makes the following specific assertions. It argues the respondents‟ 40-page 

moving memorandum was excessive and unnecessary and the respondents should not 

have needed more than seven to eight pages and should not have spent more than 

40 hours total in bringing the anti-SLAPP motion. But DLG‟s argument in this regard is 

based on its erroneous belief evidence and analysis regarding the prosecution of the 

Unlawful Detainer Action was of no relevance—a point we have already rejected. DLG 

also asserts that legal work Reeves and Adams did to familiarize themselves with the 

underlying Malpractice Action that can be traced to CNK‟s discovery abuses and DLG‟s 

motions to compel should not have been allowed, i.e., time Reeves and Adams spent 

reviewing DLG‟s various discovery motions, because CNK lost those motions. But in 

view of the fact DLG was relying almost exclusively upon the discovery wrangling 

between the attorneys in the Malpractice Action to demonstrate lack of probable cause 

and malice, the work was reasonable. 

This was a heavily litigated matter, with a very large record encompassing 

three different pieces of litigation (the Unlawful Detainer Action, the Munoz Breach of 
38

Contract Action, and the underlying Malicious Prosecution Action) and three different 

appellate proceedings. The trial court was in the best position to determine whether the 

fees sought were reasonable. DLG has not demonstrated it abused its discretion. 

3. Attorney Fees on Appeal

The respondents request their attorney fees on appeal. They are entitled to 

those fees under the statute. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 

47 Cal.App.4th 777, 785.)

DISPOSITION

The order granting the anti-SLAPP motion and the attorney fees order are 

affirmed. The respondents shall recover their attorney fees and costs on appeal, the 

amount of which shall be determined by the trial court.

O‟LEARY, P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.