Filed 4/19/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CITIZENS OF HUMANITY, LLC, 

et al.,

Plaintiffs and Respondents,

v.

OSCAR RAMIREZ et al.,

Defendants and Appellants.

B299469

(Los Angeles County Super. 

Ct. No. 18SMCV00066)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Elaine Mandel, Judge. Reversed and remanded

with directions.

California Anti-SLAPP Project and Mark Goldowitz for 

Defendants and Appellants Oscar Ramirez and Law Offices of 

Oscar Ramirez.

Verum Law Group, Sam K. Kim and Yoonis J. Han for 

Defendants and Appellants Kevin Mahoney and Mahoney Law 

Group.

Mahoney Law Group, Kevin Mahoney and Joshua D. Klein

for Defendant and Appellant Ana Jimenez.

Browne George Ross, Peter W. Ross and Charles Avrith for 

Plaintiffs and Respondents.

__________________________
2

An employee brought a wage and hour class action against 

her employer. Prior to certification, the action was settled. The 

employer paid a sum to the employee to resolve her individual 

claims, and she dismissed the class claims without prejudice, 

with court approval. Thereafter, the employer brought the 

current malicious prosecution action against the employee and 

her counsel. The employee and her counsel each moved to strike 

the action under the anti-SLAPP law (Code Civ. Proc., § 425.16). 

The trial court denied the anti-SLAPP motions on the basis that 

the employer established a prima facie showing of prevailing on 

its malicious prosecution cause of action. We disagree. As the 

prior action resolved by settlement, the employer is unable to 

establish the action terminated in its favor as a matter of law. 

We therefore reverse and remand for determination of one

unadjudicated anti-SLAPP issue, and whether the employee and 

her counsel are entitled to an award of attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Action

Because we resolve this appeal on the element of favorable 

termination, we focus our discussion of the underlying action on 

the facts and procedure relevant to the termination of the action, 

and omit the substantial history relating to whether it was 

pursued with probable cause and/or malice.

A. The Complaint

Ana Jimenez was an hourly employee of Oheck, LLC, 

making clothing for Citizens of Humanity, LLC. In May 2015, 

Jimenez brought suit against Oheck, Citizens of Humanity, and 

Eric Kweon (collectively, Oheck) alleging eight causes of action 
3

for wage and hour violations.1 Jimenez brought this action as an 

individual and on behalf of all other employees similarly situated. 

She also asserted a claim for civil penalties under the Private 

Attorney General Act (PAGA; Lab. Code, § 2698). Jimenez was 

represented by attorneys from two different law firms: Kevin 

Mahoney of Mahoney Law Group, APC; and Oscar Ramirez of 

Law Offices of Oscar Ramirez, PC. 

B. Jimenez Expresses Interest in Settlement

At a case management conference in January 2017, the 

court opened discovery on class issues only, and directed Jimenez 

to file her motion for class certification by September 29, 2017. 

Jimenez was deposed on April 27, 2017. The parties 

disputed whether Jimenez was to make herself available for a 

second day of deposition. At this point, according to Jimenez, she 

decided she did not want to pursue the case further and 

instructed her attorneys to attempt to resolve the case.2

1 Oheck’s relationship with Citizens of Humanity, and 

whether Jimenez was also employed by Citizens of Humanity, 

was disputed, but is not relevant to this appeal. 

Jimenez also named Jerome Dahan as a defendant. Her 

claims against Dahan were encompassed by the same settlement 

agreement as her claims against the other defendants. Dahan, 

however, did not join in the current malicious prosecution action. 

We therefore do not discuss him further. 

2 Oheck believes any such decision was motivated by 

Jimenez’s first deposition revealing that her wage and hour claim 

had no factual basis. While Jimenez did not go into further detail 

as to why she declined to pursue her action after her first day of 

her deposition, we observe that the record discloses one of the

many reasons Oheck sought a second day of deposition: Oheck 
4

C. Initial Settlement Negotiations Are Unsuccessful

The parties agreed to put discovery disputes on hold 

pending settlement negotiations. May 2017 e-mails between 

counsel show that both sides were agreeable to a settlement “on 

an individual basis,” which encompassed a payment to Jimenez 

and a dismissal without prejudice of the class claims. By June

2017, it appeared that the parties’ demands were too far apart, 

and the case did not settle at this time.

The record does not reflect any further settlement 

negotiations for approximately five months. 

D. Issues Arise Regarding Class Notice and a Motion to 

Strike Class Allegations

An informal discovery conference was held on October 11, 

2017. The parties were ordered to meet and confer regarding 

outstanding discovery issues, and the court directed that a notice 

be sent to the prospective class members by November 1, 2017.3

The parties could not agree on the terms of the notice, so, on 

October 19, 2017, they submitted a joint status report that 

attached their competing drafts of the notice. While Jimenez 

believed the court had “ordered” the notice be sent by November 

1, 2017, Oheck believed that date was simply “suggested” by the 

court. Oheck planned to file a motion to strike class allegations, 

wanted Jimenez to answer questions regarding whether she had 

lied regarding her immigration status on her employment

application and I-9 form.

3 The anticipated notice would have informed prospective 

class members of the pending action, and given them an 

opportunity to decide whether their information would be 

disclosed to Jimenez’s counsel. 
5

and proposed that the notice be delayed until resolution of its 

upcoming motion to strike.

On November 7, 2017, Oheck filed its motion to strike the 

class and PAGA claims, on the basis that Jimenez lacked 

standing to pursue them. Specifically, Oheck argued that 

Jimenez did not herself possess any wage and hour claims, so 

was unfit to be a class representative. Oheck further argued that

the complaint could not be amended to find a more appropriate 

class representative, because Oheck’s policies were compliant 

with the Labor Code, so “individual issues would predominate.” 

E. The Matter Is Settled

On appeal, Oheck takes the position that, although 

Jimenez’s individual claims were resolved by settlement 

agreement, the class claims were unilaterally voluntarily 

dismissed, prompted by Oheck’s pending motion to strike the

class claims. We therefore set forth the facts surrounding 

whether the parties’ settlement encompassed the class claims.

The record does not specifically reflect the date when 

settlement negotiations reopened, but by November 14, 2017, the 

parties had an agreement on the amount to be paid Jimenez and 

were working on a draft settlement agreement. 

On November 20, 2017, Jimenez filed a “Notice of 

Settlement of Entire Case.” She checked the box indicating that 

the settlement was conditional, indicating, “The settlement 

agreement conditions dismissal of this matter on the satisfactory 

completion of specified terms that are not to be performed within 

45 days of the date of the settlement.” 
6

F. Oheck Withdraws Its Motion to Strike in Light of the 

Settlement

On December 4, 2017, Oheck filed a notice of withdrawal of 

its motion to strike the class claims. Oheck’s motion stated that 

it withdrew the motion, “in light of the filing of Plaintiff’s Notice 

of Settlement of Entire Case on November 20, 2017.” 

G. The Terms of the Settlement Agreement

The settlement agreement was executed by all parties and 

counsel between November 30 and December 13, 2017. It 

provided for Oheck to pay Jimenez $50,000, with $15,000 of the 

amount to be paid to Jimenez and the remainder to her 

attorneys. Jimenez would dismiss her individual claims with 

prejudice and the class claims without prejudice. Dismissal was 

required before she would receive the settlement check.4 Jimenez 

also released all further claims arising from her employment. 

H. Jimenez’s Request for Dismissal and Court Approval

On January 4, 2018, Jimenez filed a request for dismissal 

of class action claims. In it, she sought dismissal of her 

individual claims with prejudice, and the class and PAGA claims 

without prejudice.

In language Oheck would later find significant, Jimenez’s 

request, prepared by counsel, stated, “Ultimately, Plaintiff 

determined it would be in the best interests of the class to 

dismiss the class allegations and PAGA claims, without 

4 Specifically, the agreement provided, “Oheck, LLC will 

cause to be paid the Settlement Sum to Plaintiff by mail to 

Plaintiff’s counsel of record within fifteen (15) business days once 

the appropriate W-9 tax forms are provided to Defendants, the 

Agreement has been signed by Plaintiff, and after the Court’s 

dismissal of the class representative claims in this action without 

prejudice and Plaintiff’s individual claims with prejudice.” 
7

prejudice, thereby preserving the individual claims of the

putative class members.” The document then has a heading 

reading, “SETTLEMENT OF INDIVIDUAL CLAIMS.” The first 

sentence under that heading reads, “After determining that the 

best interests of the class would be preserved by dismissing the 

class allegations and PAGA claims, the parties discussed a 

settlement of Plaintiff’s individual claims.”5

Dismissal of a class action requires court approval. (Cal.

Rules of Court, rule 3.770(a).) The court requested submission of 

supplemental evidence demonstrating that the amount of the 

settlement was fair. On February 15, 2018, Jimenez’s counsel 

submitted a declaration estimating Jimenez’s damages at 

$14,710, comprised of: $4,500 for lost meal and rest breaks; 

$4,050 for unpaid overtime; $4,000 for inaccurate wage 

statements; and $2,160 in waiting time penalties. The 

declaration did not discuss the claims of the class. 

On February 26, 2018, the court indicated its approval of 

the request to dismiss the class claims without prejudice and the 

individual claims with prejudice. California Rules of Court, 

rule 3.770(c) provides that if the class action is dismissed prior to 

certification and/or notice, the action may be dismissed “without 

notice to the class members if the court finds that the dismissal 

will not prejudice them.” As the court dismissed the class action 

without prejudice and without notice, it impliedly found the class 

members would not be prejudiced by the dismissal.

On March 9, 2018, the trial court dismissed the class action 

without prejudice and Jimenez’s individual claims with prejudice. 

5 Jimenez’s attorney subsequently filed a declaration 

containing identical statements. 
8

2. The Current Action

A. The Complaint

On October 19, 2018 – some seven months later – Oheck

filed the current action against Jimenez and one of her attorneys 

(Ramirez) who had represented her in the underlying action. On 

March 27, 2019, Oheck filed a Doe amendment naming Attorney

Mahoney.6 The complaint alleged two causes of action. The first, 

against Jimenez and the attorneys, was for malicious prosecution

of the underlying action. The second was against Jimenez alone, 

seeking sanctions against her under Code of Civil Procedure 

section 128.5, for allegedly pursuing fraudulent workers’ 

compensation claims. This latter cause of action is not before us 

on appeal.

As to malicious prosecution, Oheck alleged each element of 

the cause of action: First, that the underlying action was 

pursued without probable cause, as Jimenez had been properly 

paid all wages and had taken all breaks to which she was 

entitled; and, further, that Jimenez and her counsel were 

unaware of any other Oheck employee who had a viable wage and 

hour claim. Oheck alleged also that the underlying action was 

pursued maliciously, with the purpose of forcing a settlement 

unrelated to the merits of the claims made. On the key element 

of favorable termination, Oheck’s complaint entirely omitted 

reference to the settlement. Instead, Oheck alleged, “On 

November 7, 2017, [Oheck] moved to strike the class claims from 

the lawsuit, based on overwhelming evidence that Jimenez’s 

claims were fabricated. Rather than oppose the motion, [Jimenez 

and her counsel] requested dismissal [of] the class claims without 

6 Unless otherwise indicated, references to the individual 

attorneys include their respective firms.
9

prejudice. On March 2, 2018, the court granted [Jimenez’s] 

request.” It would eventually be revealed that Oheck drafted its 

complaint in this fashion because it believed the settlement 

resolved Jimenez’s individual claims only, and it was attempting 

to pursue malicious prosecution only of the class claims.

B. The Anti-SLAPP Motions

Jimenez, Attorney Ramirez and Attorney Mahoney each 

filed separate anti-SLAPP motions. The motions all argued that 

(1) the malicious prosecution action was based on conduct 

protected by the anti-SLAPP law, and (2) Oheck could not 

establish a probability of prevailing on its cause of action. 

Specifically, although not exclusively, they all argued that Oheck 

could not establish the “favorable termination” element of 

malicious prosecution, because the underlying action was 

actually resolved by settlement. 

Oheck’s opposition took the position that Jimenez’s class 

claims and her individual claims were two different things – and 

explained that the action sought recovery for malicious 

prosecution only of the class claims. Oheck argued that the 

settlement agreement related only to the individual claims and 

posited that Jimenez and her counsel had actually decided to 

voluntarily dismiss the class claims before settlement was even 

discussed. 

In reply, Jimenez and her counsel all argued that they had 

dismissed the class claims pursuant to the settlement. 

At the hearing on the anti-SLAPP motions, the court 

indicated that Oheck had established a probability of prevailing 

on the elements of lack of probable cause and malice. Argument 

quickly turned to whether there was evidence of favorable 

termination, and, specifically, whether the class claims were 
10

encompassed by the settlement.7 Oheck relied heavily on the 

statements in Jimenez’s request for dismissal which indicated the 

decision to dismiss the class claims was made prior to entering 

settlement discussions regarding the individual claims, as well as 

7 Curiously, at one point in the argument, Oheck’s counsel 

seemed to concede that Oheck could not pursue Jimenez for

malicious prosecution. The following exchange occurred:

“THE COURT: Before I turn to the other side of the table 

for their response, let me ask you about the claims versus 

Jimenez personally, setting aside the claims against the lawyers. 

I think she stands in a slightly different circumstance than the 

lawyer defendants do.

“[OHECK’S COUNSEL]: Yes.

“THE COURT: It seems to me that as to her, there was a 

termination in her favor. You paid her money.

“[OHECK’S COUNSEL]: Right.

“THE COURT: Not you, but your client paid her money, 

paid her $50,000. How is that not a termination in her favor of at 

least her individual claims? [¶] Doesn’t that preclude you from 

going after Ms. Jimenez personally for a malicious prosecution 

claim?

“[OHECK’S COUNSEL]: It doesn’t prevent us from going 

after her on 128.5 with respect to the workers’ comp claims, and I 

think, and I could be wrong, because I’ve been in trial for about 

ten days, but I think that that’s our only claim against her is on 

the 128.5 sanctions, and we did settle with her all her claims. [¶] 

We didn’t give her a release of anything, she released us, but we 

settled, so that’s not a favorable termination. But on 128.5 

sanctions, we’re not required to have a favorable termination. 

We’re seeking sanctions based on what now appears to us to have 

been two frivolous workers’ comp claims where we paid out a 

total of a hundred thousand dollars.” 

Neither the trial court in its ruling, nor any of the parties 

on appeal, addressed this apparent concession.
11

the fact that the class claims were ultimately dismissed after

Oheck filed its motion to strike the class claims. Jimenez and her 

counsel countered that, from early settlement negotiations in 

May 2017, it had been agreed that any settlement would 

encompass the voluntary dismissal of the class claims, but the 

class claims were not to be actually dismissed until the entire 

settlement was reached. 

Jimenez and her attorneys argued that the court, in its 

assessment of favorable termination, should consider the action 

as a whole and not separate the individual and the class claims.

Oheck’s counsel did not directly respond, but again argued that 

the settlement agreement constituted a favorable termination for 

Jimenez on her individual claims, but it did not resolve the class 

claims “and did not insulate any of the attorney defendants from 

malicious prosecution.” 

The court took the matter under submission. On June 17, 

2019, the court issued its ruling denying the anti-SLAPP 

motions. Specifically, it found Oheck had established a prima 

facie case of malicious prosecution. As to the heavily disputed 

element of favorable termination, the court adopted Oheck’s view 

of the settlement chronology. The court stated that, after Oheck 

filed its motion to strike the class claims, “[Jimenez and her 

attorneys] did not oppose that motion, but requested dismissal of 

the class claims without prejudice. After [they] agreed to dismiss 

the class claims, the parties resumed discussions regarding 

settlement of Jimenez’s individual claims.” The court concluded 

that the voluntary dismissal of the class claims implied that 

“defeat [was] expected.” 

Jimenez and her counsel filed timely notices of appeal. 
12

DISCUSSION

Resolution of the appeal turns on whether Oheck has 

established a prima face case of the favorable termination 

element of malicious prosecution. The parties focus the bulk of

their argument on the factual aspect of this issue, Oheck’s 

position is that it has demonstrated a “probability of success” 

under the second prong of the anti-SLAPP statute (Baral v. 

Schnitt (2016) 1 Cal.5th 376, 384) because Jimenez dismissed the 

class claims unilaterally and voluntarily in the belief they were 

meritless, not that the claims were resolved as part of the 

settlement agreement. 

 We believe it is unnecessary to reach this issue. We 

conclude that in this precertification class action, the class claims 

are not severable from the individual claims for the purposes of

the favorable termination analysis. The entire action terminated 

by settlement – a termination which was not favorable to Oheck 

as a matter of law.

1. Anti-SLAPP Law

“Resolution of an anti-SLAPP motion ‘requires the court to 

engage in a two-step process. First, the court decides whether 

the defendant has made a threshold showing that the challenged 

cause of action is one arising from protected activity. The moving 

defendant’s burden is to demonstrate that the act or acts of which 

the plaintiff complains were taken “in furtherance of the 

[defendant]’s right of petition or free speech under the United 

States or California Constitution in connection with a public 

issue,” as defined in the statute. [Citation.] If the court finds 

such a showing has been made, it then determines whether the 

plaintiff has demonstrated a probability of prevailing on the 
13

claim.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 

31 Cal.4th 728, 733.) 

The parties do not dispute that claims for malicious 

prosecution fall within the first prong. (See Citizens of 

Humanity, LLC v. Hass (2020) 46 Cal.App.5th 589, 598 (Citizens 

of Humanity).) We therefore turn to whether Oheck has 

demonstrated a probability of prevailing on its claim for 

malicious prosecution.

“This second step is a summary-judgment-like 

procedure. . . . We first determine whether [Oheck’s] prima facie 

showing is enough to win a favorable judgment. . . . This 

threshold is ‘ “not high.” ’ . . . Claims with minimal merit 

proceed. We accept [Oheck’s] evidence as true and do not weigh 

evidence or resolve conflicting factual claims. . . . We may 

consider affidavits, declarations, and their equivalents if it is 

reasonably possible these statements will be admissible at 

trial. . . . [¶] After examining [Oheck’s] evidence, we evaluate 

Appellants’ showings only to determine if they defeat [Oheck’s] 

claim as a matter of law. . . . Appellants can prevail either by 

establishing a defense or the absence of a necessary element. . . . 

If there is a conflict in the evidence (the existence of a disputed 

material fact), the anti-SLAPP motion should be denied.” 

(Citizens of Humanity, supra, 46 Cal.App.5th at p. 598, citations 

omitted.)

2. Elements of Malicious Prosecution

“An action for malicious prosecution has three required 

elements: ‘(1) the defendant brought (or continued to pursue) a 

claim in the underlying action without objective probable cause, 

(2) the claim was pursued by the defendant with subjective 

malice, and (3) the underlying action was ultimately resolved in 
14

the plaintiff’s favor.’ [Citation.]” (Citizens of Humanity, supra, 

46 Cal.App.5th at pp. 598–599.)

3. Oheck Cannot Establish Favorable Termination

A. Principles Governing Favorable Termination

We are concerned with the final element – that the 

underlying action was ultimately resolved in Oheck’s favor. This 

can be seen as implicating two elements: termination of the 

entire action, and termination on the merits, reflecting innocence

of the underlying defendants. 

First, favorable termination requires favorable resolution of 

the underlying action in its entirety, not merely a single cause of 

action. (Crowley v. Katleman (1994) 8 Cal.4th 666, 686.) “[I]f the 

defendant in the underlying action prevails on all of the 

plaintiff’s claims, he or she may successfully sue for malicious 

prosecution if any one of those claims was subjectively malicious 

and objectively unreasonable. But if the underlying plaintiff 

succeeds on any of his or her claims, the favorable termination 

requirement is unsatisfied and the malicious prosecution action 

cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 

64.)

Second, the action must have been terminated on a basis 

which reflects upon the innocence of the underlying defendant. 

“A ‘ “favorable” termination does not occur merely because a 

party complained against has prevailed in an underlying action.

While the fact he has prevailed is an ingredient of a favorable 

termination, such termination must further reflect on his 

innocence of the alleged wrongful conduct. If the termination 

does not relate to the merits—reflecting on neither innocence of 

nor responsibility for the alleged misconduct—the termination is 

not favorable in the sense it would support a subsequent action
15

for malicious prosecution.’ [Citation.] ‘ “[W]hen the underlying 

action is terminated in some manner other than by a judgment 

on the merits, the court examines the record ‘to see if the 

disposition reflects the opinion of the court or the prosecuting 

party that the action would not succeed.’ ” [Citations.]’ 

[Citation.] ‘Should a conflict arise as to the circumstances of the 

termination, the determination of the reasons underlying the 

dismissal is a question of fact. [Citation.]’ [Citation.]” (Sycamore 

Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 

1399 (Sycamore Ridge).)

Cases have identified specific types of termination which 

are generally considered favorable and others which are 

generally considered unfavorable. A voluntary dismissal may or 

may not constitute a favorable termination. If the voluntary 

dismissal is an implicit concession that the dismissing party 

cannot maintain the action, it may constitute a dismissal on the 

merits which is a favorable termination. (JSJ Limited 

Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 

(JSJ).) “A voluntary dismissal is presumed to be a favorable 

termination on the merits, unless otherwise proved to a jury. 

[Citation.] This is because ‘ “[a] dismissal for failure to prosecute 

. . . does reflect on the merits of the action [and in favor of the 

defendant] . . . . The reflection arises from the natural 

assumption that one does not simply abandon a meritorious 

action once instituted.” ’ [Citation.]” (Sycamore Ridge, supra, 

157 Cal.App.4th at p. 1400.) 

In contrast, a dismissal on technical or procedural, rather

than substantive, grounds is not considered favorable for 

purposes of malicious prosecution. (JSJ, supra, 205 Cal.App.4th 

at p. 1525.) These include dismissals for lack of jurisdiction, for 
16

lack of standing, to avoid litigation expenses, or pursuant to 

settlement. (Ibid.) Generally, a dismissal resulting from a 

settlement does not constitute a favorable termination because 

the dismissal reflects ambiguously on the merits of the action. 

The purpose of a settlement is specifically to avoid a 

determination on the merits. (Dalany v. American Pacific 

Holding Corp. (1996) 42 Cal.App.4th 822, 827.) When litigation 

is terminated by agreement “there is ambiguity with respect to 

the merits of the proceeding and in general no favorable 

termination for purposes of pursuing a malicious prosecution 

action occurs. [Citations.]” (Id. at p. 828.) Even if the action was 

tried to a verdict, a subsequent bilateral settlement in which each 

side gave up something of value (reduced payment accepted in 

exchange for waiving right to appeal) defeats favorable 

termination as a matter of law.

8 (Ferreira v. Gray, Cary, Ware & 

Freidenrich (2001) 87 Cal.App.4th 409, 412–413.)

Considering these elements, Jimenez was partially 

successful in her action. The case was resolved by settlement, by 

which Oheck paid her (and her counsel) $50,000. Taking 

8 Relying on Roche v. Hyde (2020) 51 Cal.App.5th 757, 790, 

Oheck argues that there is no unyielding rule that no resolution 

by agreement can ever be a favorable termination. We do not 

disagree. Roche explained that “[i]f the record clearly discloses 

the terms of an overall compromise of claims requiring dismissal 

as a condition,” the rule that the dismissal was not a favorable 

termination applies. (Ibid.) But if there is no written settlement 

agreement, the court must assess the surrounding circumstances 

to discern the terms and determine if the dismissal was truly 

part of a bilateral agreement, as opposed to a unilateral 

voluntary dismissal. (Id. at p. 791.) 
17

Jimenez’s action as a whole, as we must, Oheck cannot establish 

that it was favorably terminated.

B. The Class Claims Cannot Be Considered Separately

Oheck tries to avoid this result by parsing Jimenez’s 

underlying complaint into two separate actions: her individual 

claims and her class claims. Pointing to the disputed facts 

surrounding whether the class claims were encompassed by the 

settlement, Oheck argues that it has established a probability of 

success because the class claims themselves were terminated in 

its favor. The argument is based on the unspoken premise that 

class claims are severable from individual claims for malicious 

prosecution purposes.9 (Cf. Sycamore Ridge, supra, 

157 Cal.App.4th 1385 [attorneys were properly sued for 

maliciously prosecuting the claim of one of 45 individually named 

plaintiffs in the underlying action].)

The argument misconstrues the nature of a class action, 

and fails on both the “entire action” and the “on the merits” 

elements of favorable termination.

As to favorable termination of the entire action, Watkins v. 

Wachovia Corp. (2009) 172 Cal.App.4th 1576 establishes that 

there is no such thing as a separate class claim. In that case, 

Watkins brought a wage and hour class action. After the court 

denied her motion for class certification, she settled her 

individual claims, but purported to retain the right to appeal the 

denial of certification in her representative capacity. (Id. at 

p. 1581.) Division Three of the Second Appellate District 

9 Oheck does not expressly argue that class claims are 

severable for malicious prosecution purposes, and therefore 

submits no authority in support of the argument. Oheck simply 

assumes that the class claims can be treated separately.
18

dismissed Watkins’s appeal, on the basis that she had settled her 

wage and hour claim, which was indivisible. (Id. at p. 1588.) The 

court explained, “Watkins assumes, however, that her ‘class 

claim’ for unpaid overtime wages has independent vitality and 

can continue after she has settled her ‘individual claim’ for the 

same wages. The argument reflects a misunderstanding of the 

nature of a class action. A class action is a procedural device 

used ‘when the parties are numerous, and it is impracticable to 

bring them all before the court.’ [Citation.] In such a situation, 

‘one or more may sue or defend for the benefit of all.’ [Citation.] 

When a plaintiff brings a class action, the plaintiff undertakes a 

fiduciary duty to the other members of the class, under which the 

plaintiff agrees not to settle the other class members’ claims for 

the plaintiff’s individual gain. [Citation.] But this duty should 

not be confused with an additional claim for relief. A 

representative plaintiff still possesses only a single claim for 

relief—the plaintiff’s own. That the plaintiff has undertaken to 

also sue ‘for the benefit of all’ does not mean that the plaintiff has 

somehow obtained a ‘class claim’ for relief that can be asserted 

independent of the plaintiff’s own claim. ‘[T]he right of a litigant 

to employ [class action procedure] is a procedural right only, 

ancillary to the litigation of substantive claims. Should these 

substantive claims become moot . . . , by settlement of all 

personal claims for example, the court retains no jurisdiction over 

the controversy of the individual plaintiffs.’ [Citation.] Thus, a 

class representative’s voluntary settlement of her individual 

claim constitutes a voluntary settlement of her only claim, and 

moots her right to proceed on appeal.” (Id. at pp. 1588–1589, 

fn. omitted.)
19

As in Watkins, Jimenez here possessed only a single claim 

for relief – her own. She did not also pursue class claims. The

class action was no more than an ancillary procedure. We 

therefore do not separately consider whether the class claims 

were favorably terminated; Jimenez pursued a single claim for 

wage and hour violations, which was settled, on terms that 

included Oheck’s payment of $50,000 to Jimenez.

10

We reach the same result when we consider whether the 

class claims were resolved on the merits in Oheck’s favor. 

Accepting Oheck’s argument that the class claims were 

unilaterally dismissed, this establishes only a dismissal for 

procedural grounds, not on the merits. The class allegations were 

voluntarily dismissed without prejudice, and the court impliedly 

found the dismissal would not, in fact, prejudice the class 

members. Oheck suggests Jimenez voluntarily dismissed the 

class claims because she knew Oheck’s pending motion to strike 

the class claims would be granted. But this does not render the 

dismissal a dismissal on the merits. Oheck moved to strike the 

class allegations on the basis that Jimenez was not an 

10 Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 

61 Cal.App.5th 136 [275 Cal.Rptr.3d 519] (Area 55) presented the 

mirror image of this case. There, attorneys were sued for 

maliciously prosecuting an underlying class action which, 

following certification, was dismissed for failure to prosecute. 

This was considered favorable termination sufficient to defeat 

their anti-SLAPP motion. The attorneys attempted to argue 

against favorable termination by parsing out the claims of a class 

representative from the claims of the class, arguing that their 

initial representative’s claims were lost by abandonment, and 

therefore not resolved adversely on the merits. The Court of 

Appeal rejected this argument, because there is only one final 

judgment in a case. (Id. at p. ___ [275 Cal.Rptr.3d at p. 539].) 
20

appropriate class representative and that she could not be 

replaced because individual issues would predominate. In other 

words, Oheck challenged the procedure of Jimenez’s attempt to 

pursue class action relief, not the merits of the claim. To be sure, 

the argument was based on Oheck’s purported evidence that 

Jimenez’s individual claims were meritless (which rendered her 

an inappropriate class representative) and that it had no uniform 

illegal policies (which meant individual, not class, issues would 

predominate). But, the motion was, in essence, a motion that the 

procedure of a class action was inappropriate; it was not a 

summary judgment motion or similar motion directed to the 

merits of the class claims. We have found no California authority 

directly addressing whether a motion to strike class action 

allegations addresses the merits. (Cf. Area 55, supra, 

61 Cal.App.5th at p. __ [275 Cal.Rptr.3d at pp. 543-544] [in the 

context of discussing whether the underlying action was pursued 

with probable cause, holding that rulings on class certification 

are procedural and do not reflect on the merits].) However, a

Florida court has concluded that dismissal of a class action for 

lack of standing is not a favorable termination, as it is not 

inconsistent with the defendant’s guilt. (Della-Donna v. Nova 

University, Inc. (Fla.Dist.Ct.App. 1987) 512 So.2d 1051, 1057; see 

also Rowen v. Holiday Pines Prop. Owners’ Ass’n

(Fla.Dist.Ct.App. 2000) 759 So.2d 13, 16 [dismissal of a class 

action suit for lack of standing is not a bona fide termination 

because the “lawsuit might later be brought by a plaintiff who 

better qualifies as a class representative”].)

Both paths lead to the same result for the same reason. A 

precertification voluntary dismissal without prejudice of so-called 

“class claims” cannot constitute a favorable termination on the 
21

merits where, as here, the defendant agreed to pay the plaintiff a 

sum in exchange for the plaintiff’s dismissal of her claims. A

class action is merely a procedure by which a plaintiff can pursue 

her claim, not a separate claim that can be resolved on the merits 

independent of the plaintiff’s own claim. The determination that 

the class action procedure is inapplicable in a particular case is 

not a resolution of the case on its merits, and does not constitute 

a favorable termination for malicious prosecution purposes.11

As the trial court did not rule on Jimenez’s anti-SLAPP 

motion with respect to the second cause of action in Oheck’s 

complaint against her, the trial court should consider the issue on 

remand.

DISPOSITION

The orders denying the anti-SLAPP motions are reversed. 

The matter is remanded to the trial court with directions to grant 

in their entirety the anti-SLAPP motions of Attorney Ramirez 

and Attorney Mahoney and to award them attorney’s fees under 

California Code of Civil Procedure section 425.16, subdivision 

(c)(1). 

As to Jimenez, the matter is remanded with directions to 

grant the anti-SLAPP motion to the first cause of action for 

malicious prosecution and to rule on Jimenez’s anti-SLAPP 

motion to the second cause of action for violation of Code of Civil 

Procedure section 128.5.

11 Because we resolve the matter on the element of favorable 

termination, we need not reach the issue of whether the 

malicious prosecution action against Attorney Mahoney is barred 

by the statute of limitations or any of the other issues raised by 

Jimenez and her attorneys.
22

Ramirez, Mahoney and Jimenez are awarded their costs 

and attorney’s fees on appeal, in an amount to be set by the trial 

court.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

KIM, J.