Filed 12/6/23 Delaney v. Delaney CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

VIVIANE DELANEY, 

 Plaintiff and Appellant, 

v.

TIMOTHY DELANEY et al., 

 Defendants and Respondents. 

2d Civ. No. B320436

(Cons. w/ B321820)

(Super. Ct. No. 21CV03600)

(Santa Barbara County)

Viviane Delaney appeals the granting of special motions to 

strike her complaint for malicious prosecution pursuant to the 

anti-SLAPP statute (Code Civ. Proc.,

1 § 425.16). Viviane2 sued 

respondents—her ex-husband Timothy Delaney and his former 

attorneys—for malicious prosecution after their prior action 

against her for emotional distress was voluntarily dismissed with 

1 Unless otherwise stated, all section references are to the 

Code of Civil Procedure.

2 We refer to Viviane and Timothy Delaney by their first 

names for clarity and convenience.
2

prejudice. Viviane also appeals an award of attorney fees to 

Timothy as the prevailing party. (§ 425.16, subd. (c).)

We agree with Viviane that the trial court erred in granting 

both anti-SLAPP motions on the ground that her anti-SLAPP 

motion in the prior action was denied. We exercise our discretion 

to decide the motions in the first instance and conclude that 

Viviane has made the requisite prima facie showing of minimal 

merit to support her malicious prosecution claim. Accordingly, 

we shall reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2016, Viviane recorded a cellphone video of her and 

Timothy’s five-year-old son suggesting that Timothy had sexually 

abused him. She provided the video to health care providers who 

are mandated reporters. Timothy was arrested that same day

but no charges were filed. 

Following his arrest, Timothy retained attorney Paul A. 

Pettine, III (Pettine) and Pettine’s law firm Wilson & Pettine, 

LLP (collectively W&P) to represent him. On Timothy’s behalf, 

W&P filed a petition for dissolution of his marriage to Viviane. 

In May 2018, W&P also filed a complaint against Viviane for 

emotional distress (the underlying action) alleging that she

“caused” the cell phone video “to be delivered” to mandated 

reporters with the intent that the videos would be reported to 

authorities. W&P further alleged that Viviane “knew that the 

alleged acts of sexual abuse . . . did not occur and that the 

allegations that [Timothy] sexually abused the Minor Child were 

untrue, but [Viviane] intentionally pursued the course of action 

in order to obtain custody of Minor Child and take the Minor 

Child to Roseville, CA, where . . . [Viviane] had accepted 

employment requiring her to move to Roseville.” 
3

Viviane’s anti-SLAPP motion to strike the underlying 

action was denied in February 2019 and the trial court overruled 

her demurrer to the complaint. Shortly thereafter, Timothy 

substituted in new counsel, William Poulis, to replace W&P.3

Timothy dismissed the underlying action with prejudice in 

September 2019. 

In September 2021, Viviane filed the instant action against 

respondents alleging causes of action for malicious prosecution, 

intentional and negligent infliction of emotional distress, and 

abuse of process. The operative complaint alleged among other 

things that respondents lacked probable cause to sue Viviane for 

emotional distress, and did so with malice, because Timothy and

W&P had reviewed and had knowledge that video surveillance 

from the family’s residence showed an interaction between 

Timothy and the child that “closely aligns with the reported 

statements made by the minor child to Viviane, which Viviane 

had recorded and reported due to their troubling nature.”

In opposing respondents’ anti-SLAPP motions to strike her 

complaint, Viviane requested judicial notice of various court 

documents. One such document was the July 2021 trial brief

W&P filed in an action it brought against Timothy for the 

payment of attorney fees (W&P’s trial brief). W&P’s trial brief, 

which is signed by Pettine, states among other things that 

“[w]hile WP believed that the child’s allegations were created by 

[Viviane] in an effort to gain primary child custody and to 

relocate the child to the Sacramento area, the home surveillance 

video dispelled that theory . . . . [¶] Approximately ten (10) days 

before [Viviane’s] car videoing of the minor child describing 

3 Poulis, who was also named as a defendant in Viviane’s 

claim for malicious prosecution, filed an answer to her complaint 

and is not a party to this appeal.
4

molestation, the . . . home video surveillance system showed 

[Timothy] performing an act eerily similar to the act the minor 

child described in [Viviane’s] car videoing of the minor child. It 

showed [Timothy] inappropriately licking his fingers and 

rubbing/sticking a finger around/in the child’s exposed annus.”

W&P stated that when Timothy was confronted with the 

video, he claimed he “had no memory of the act and could not

confirm that such acts had not happened before or since that 

video.” W&P added that the video had not been seen by the child 

custody evaluator, and the family law court was also unaware of 

it when it issued its custody order. W&P suggested that Timothy 

had only avoided criminal prosecution for sexually assaulting his 

son because “no one else appeared to” have reviewed all of the 

home video surveillance tapes—“not the police department, the 

district attorney’s office, the Family Law Court appointed child 

custody evaluator, and not [Viviane’s] family law attorney.” 

Viviane also offered a November 5, 2021 declaration from

Brian Godlis that she filed in the family law proceedings. Godlis, 

who owns a computer support company, was previously retained 

by respondents in 2017 to review the home surveillance videos 

recorded over a 25-day period of time before and after Viviane’s 

cell phone video of the child’s report of abuse. Godlis’s 

declaration refers to a spreadsheet “describing what was depicted 

on each clip,” which includes a May 13, 2016 clip he described as

depicting an “odd” incident in which “dad wets his finger and 

does something to son’s butt crack, has son’s arms pinned.” 

Godlis highlighted this clip on the spreadsheet as “Important.” 

Godlis also declares under penalty of perjury that in May 2017 he 

gave copies of the video clip and spreadsheet—the latter of which 

is attached to the declaration as Exhibit A—to both W&P and 

Timothy. 
5

Timothy objected to W&P’s trial brief as hearsay and 

asserted that judicial notice cannot be taken “‘of the truth of 

hearsay statements in decisions and court files.’ (Lockley v. Law 

Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 

Cal.App.4th 875, 882.)” Timothy also objected to the spreadsheet 

attached as Exhibit A to Godlis’s declaration on the same ground, 

but did not object to the declaration itself. W&P objected to 

Godlis’s declaration as inadmissible hearsay and as irrelevant 

because it post-dates their representation of Timothy. W&P did 

not raise any evidentiary objections to their July 2021 trial brief 

in the attorney fees action.

The trial court granted Viviane’s request for judicial notice 

of W&P’s trial brief and Godlis’s declaration and the attached 

exhibit, but noted that judicial notice did not “extend to the truth 

of factual statements set forth in the court records.” The trial 

court overruled Viviane’s objections to Timothy’s declaration filed 

in support of his motion, but it did not rule on any other 

evidentiary objections. 

In granting respondents’ motions to strike, the trial court 

reasoned that the denial of Viviane’s anti-SLAPP motion in the 

underlying action conclusively established that respondents had 

probable cause to bring that action, such that her current claims

for malicious prosecution, emotional distress, and abuse of 

process were barred by the adverse judgment rule. Because the 

court concluded that Viviane’s claims were barred as a matter of 

law by the prior ruling, it did not decide whether her proffered 

evidence would otherwise be sufficient to defeat the anti-SLAPP 

motions. The court subsequently granted Timothy $18,665.15 in 

attorney fees as the prevailing party pursuant to section 425.16, 

subdivision (c). 
6

DISCUSSION

Viviane contends the trial court erred in granting 

respondents’ anti-SLAPP motions to strike her cause of action for 

malicious prosecution because she demonstrated a reasonable 

probability of prevailing on the merits of that claim.

4 We agree 

the court erred in granting the motions based on the fact that 

Viviane’s anti-SLAPP motion in the underlying action was 

denied. Rather than remand for consideration of the remaining 

issues the parties raised in the anti-SLAPP proceedings, and 

because the standard of review is de novo, we exercise our 

discretion to determine, in the first instance, whether the 

motions should be granted on other grounds raised in the motions 

and on appeal. (Area 55, LLC v. Nicholas & Tomasevic, LLP

(2021) 61 Cal.App.5th 136, 152 (Area 55).) We conclude they 

should not.

General Legal Principles

“[S]ection 425.16 provides a procedure for the early 

dismissal of what are commonly known as SLAPP suits (strategic 

lawsuits against public participation)—litigation of a harassing 

nature, brought to challenge the exercise of protected free speech 

rights. The section is thus informally labeled the anti-SLAPP 

statute.” (Fahlen v. Sutter Central Valley Hospitals (2014) 58 

Cal.4th 655, 665, fn. 3.)

A special motion to strike under section 425.16 involves a 

two-step process. The first step requires the defendant to make a

prima facie showing that the plaintiff's “cause of action . . . 

aris[es] from” an act by the defendant “in furtherance of the 

[defendant’s] right of petition or free speech . . . in connection 

4 Viviane does not challenge the trial court’s order granting 

the anti-SLAPP motions as to her other causes of action. 
7

with a public issue.” (§ 425.16, subd. (b)(1).) If the defendant 

satisfies the first step, the second step requires the plaintiff to 

demonstrate a reasonable probability of prevailing on the merits. 

(Cabral v. Martins (2009) 177 Cal.App.4th 471, 478.) 

To defeat the motion, the plaintiff must show there is 

admissible evidence that, if credited, would be sufficient to 

sustain a favorable judgment. “Only a cause of action that 

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

from protected speech or petitioning and lacks even minimal 

merit—is a SLAPP, subject to being stricken under the statute.”

(Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics omitted.) 

“We review de novo the grant or denial of an anti-SLAPP 

motion.” (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763.) “We 

therefore engage in the same two-step process that the trial court 

undertakes in assessing an anti-SLAPP motion.” (Billauer v. 

Escobar-Eck (2023) 88 Cal.App.5th 953, 962.)

Viviane concedes the first step of the anti-SLAPP statute 

has been met because the law makes clear that all claims for 

malicious prosecution arise from constitutionally-protected 

activity. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 

Cal.4th 728, 734-735; Lee v. Kim (2019) 41 Cal.App.5th 705, 719.)

The second step of the statute has been described “as a 

‘summary-judgment-like procedure’” in which “[t]he court does 

not weigh evidence or resolve conflicting factual claims. Its 

inquiry is limited to whether the plaintiff has stated a legally 

sufficient claim and made a prima facie factual showing sufficient 

to sustain a favorable judgment. It accepts the plaintiff’s 

evidence as true, and evaluates the defendant’s showing only to 

determine if it defeats the plaintiff’s claim as a matter of law. 

[Citation.] ‘[C]laims with the requisite minimal merit may 

proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-
8

385; Divine Food & Catering, LLC v. Western Diocese of 

Armenian Church of North America (2023) 92 Cal.App.5th 1048, 

1063 (Divine Food & Catering).) 

In opposing an anti-SLAPP motion, the plaintiff “‘may not 

rely solely on its complaint, even if verified; instead, its proof 

must be made upon competent admissible evidence.’” 

(Sweetwater Union High School Dist. v. Gilbane Building Co.

(2019) 6 Cal.5th 931, 940 (Sweetwater).) The court must also 

assess the opposing evidence. While the court may not weigh the 

respective evidence, the defendant’s evidence will be considered if 

it defeats the plaintiff’s allegations as a matter of law. (1-800 

Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Viviane’s claim for malicious prosecution requires her to 

satisfy three elements: “The underlying action must have been: 

(i) initiated or maintained by, or at the direction of, the 

defendant, and pursued to a legal termination in favor of the 

malicious prosecution plaintiff; (ii) initiated or maintained 

without probable cause; and (iii) initiated or maintained with 

malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775

(Parrish).) 

The Interim Adverse Judgment Rule

In granting respondents’ anti-SLAPP motions, the trial 

court found Viviane had “no probability of prevailing” on her 

malicious prosecution claim because the trial court in the 

underlying action had already determined Timothy’s claims had 

merit when it denied Viviane’s anti-SLAPP motion.

5 The court 

5 Although the trial court stated Viviane “provides no 

argument that the denial of the anti-SLAPP motion in the 

Underlying Action does not fall within [the interim adverse 

judgment] rule,” it overruled her section 425.16, subdivision (b)(3) 
9

applied the interim adverse judgment rule, which provides in 

relevant part that a judgment or verdict in the plaintiff’s favor on 

the merits in the underlying case “‘establishes probable cause to 

bring the underlying action,’” and thus precludes a contrary 

finding in a subsequent malicious prosecution action. (Parrish, 

supra, 3 Cal.5th at p. 776.)

However, in 2005 the legislature amended section 425.16 to 

eliminate application of the interim adverse judgment rule when 

the prior adverse ruling was the denial of an anti-SLAPP motion. 

The amendment was intended to abrogate the contrary holding in 

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811.

(Assem. Bill No. 1158 (2005-2006 Reg. Sess.) § 1.) Section 

425.16, subdivision (b)(3) provides: “If the court determines that 

the plaintiff has established a probability that the plaintiff will 

prevail on the claim, neither that determination nor the fact of 

that determination shall be admissible in evidence at any later 

stage of the case, or in any subsequent action, and no burden of 

proof or degree of proof otherwise applicable shall be affected by 

that determination in any later stage of the case or in any 

subsequent proceeding.” The trial court thus erred in concluding 

that the denial of Viviane’s anti-SLAPP motion in the underlying 

action precluded her from demonstrating the requisite probability 

of prevailing on her malicious prosecution claims.

We also reject W&P’s assertion that the trial court’s

overruling of Viviane’s demurrer in the underlying action was an

interim adverse judgment precluding a showing they lacked 

probable cause to bring that action. W&P makes no effort to 

demonstrate how that decision could be construed as a victory on

objection to Timothy’s request for judicial notice of that 

determination. Viviane also raised the same objection in both her 

opposition to the anti-SLAPP motions and in arguing the motion. 
10

the merits. (Area 55, supra, 61 Cal.App.5th at p. 167 [the interim 

adverse judgment rule requires a showing of an “interim victory 

on the merits in the prior action”].) Because the court overruled 

the demurrer as to the emotional distress claims in the 

underlying action on the same grounds it denied Viviane’s antiSLAPP motions, that ruling does not qualify as a victory on the 

merits of those claims.

To the extent respondents also rely on statements the 

family law judge made at a June 2018 hearing regarding custody 

of the Delaneys’ son, we reach the same conclusion. The family 

law judge court stated: “It is this Court’s finding that no child 

abuse, sexual or otherwise, has been perpetrated by either 

parent” and that she believed the cell phone video Viviane made 

“seemed very concocted.” Not only were these statements made 

after respondents filed the underlying action, but they were not a 

judgment or decision on the merits; on the contrary, the judge 

ended the hearing by stating her discussion “was rather 

amorphous and tentative.”

Statute Of Limitations

W&P also contend that Viviane’s claim against them for 

malicious prosecution is barred by the applicable statute of 

limitations. They assert that the claim is subject to the one-year 

statute of limitations for an act or omission arising from an 

attorney’s performance of professional services (§ 340.6, subd. (a)) 

rather than the two-year limitations period typically applied in 

such actions (§ 335.1). Viviane counters that her claim is 

governed by the two-year statute. Although W&P has the better 

argument on this point, they fail to meet their burden of 

establishing that the one-year statute of limitations was not 

tolled as a matter of law, such that Viviane’s claim is untimely.
11

Only one published case has held that the two-year statute 

of limitations applies to claims brought against attorneys for 

malicious prosecution. (Roger Cleveland Golf Co., Inc. v. Krane & 

Smith, APC (2014) 225 Cal.App.4th 660, 676-682, overruled on 

other grounds by Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee).) 

Our Supreme Court has more recently clarified that regardless of 

how a claim is styled, section 340.6, subdivision (a) applies “when 

the merits of the claim will necessarily depend on proof that an 

attorney violated a professional obligation—that is, an obligation 

the attorney has by virtue of being an attorney—in the course of 

providing professional services.” (Lee, at p. 1229, italics omitted.) 

The Court rejected the view that section 340.6 is limited only to 

malpractice actions. (Ibid.) 

Since then, courts have consistently applied the one-year 

limitations to malicious prosecution claims asserted against 

attorneys. (E.g., Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050, 

1060-1061; Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 788, 

793-795.) “We agree with Connelly and Garcia that under the 

rule established by Lee, and based on section 340.6’s plain 

language, the statute’s limitations period applies to malicious 

prosecution claims against attorneys who represented a party in 

the underlying litigation.” (Escamilla v. Vannucci (Oct. 23, 2023, 

A166176) __ Cal.App.5th __ [2023 Cal.App.Lexis 878, *13].)

Accordingly, Viviane had to file her action “within one year 

after [she] discover[ed], or through the use of reasonable diligence 

should have discovered, the facts constituting the wrongful act or 

omission, or four years from the date of the wrongful act or 

omission, whichever occurs first.” (§ 340.6, subd. (a).) As the 

statute of limitations is an affirmative defense, W&P bears the 

burden of proving Viviane’s action is untimely. (Peregrine 

Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 
12

133 Cal.App.4th 658, 676; Favila v. Katten Muchin Rosenman 

LLP (2010) 188 Cal.App.4th 189, 224.)

In determining whether Viviane’s evidence survives antiSLAPP scrutiny, she need only establish her claim has minimal 

merit and in making that assessment we must draw every 

legitimate favorable inference from her evidence. (Wilcox v. 

Superior Court (1994) 27 Cal.App.4th 809, 828, disapproved on 

another ground in Equilon Enterprises v. Consumer Cause, Inc.

(2002) 29 Cal.4th 53, 68.) It is reasonable to conclude that 

Viviane did not discover, and should not have discovered, that 

W&P no longer believed Timothy’s contention that the sexual 

abuse allegations were false until after she had access to W&P’s 

trial brief which could not have been before it was filed on July 8, 

2021. Viviane filed her action two months later. 

W&P argues Viviane should have known earlier because 

she had the home surveillance videos and she could have 

reviewed them herself. This contention creates a factual dispute 

but does not defeat Viviane’s claims as a matter of law. (Choi v. 

Sagemark Consulting (2017) 18 Cal.App.5th 308, 323-324 [“‘The 

resolution of a statute of limitations defense is typically a factual 

question for the trier of fact’”].)

W&P also argue that Viviane’s claim accrued on September 

9, 2019, when the underlying action was dismissed. Applying the 

one-year limitations period, Viviane ordinarily would have had 

until September 9, 2020 to file her malicious prosecution action. 

Recognizing that this period was tolled for 178 days due to the 

pandemic and Emergency Rule 9, Viviane would have had until 

March 6, 2021 to file her action. She filed it approximately six 

months later, on September 8, 2021. 

We agree with Viviane that her claim accrued when she 

“discover[ed], or through the use of reasonable diligence should 
13

have discovered, the facts constituting the wrongful act or 

omission.” (§ 340.6 subd. (a).) Cases which have criticized the 

discovery rule’s application to malicious prosecution claims 

predate Lee and do not discuss section 340.6 subdivision (a) and 

are, therefore, not helpful. (See e.g., Royal Thrift & Loan Co. v. 

County Escrow, Inc. (2004) 123 Cal.App.4th 24, 43; Gerbosi v. 

Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 

448.) Instead we determine that, like legal malpractice actions, 

“section 340.6, subdivision (a) codified the delayed discovery rule” 

and that it applies where, as here, a malicious prosecution action

is brought against an attorney. (Ovando v. County of Los Angeles 

(2008) 159 Cal.App.4th 42, 66.)

Malicious Prosecution - Lack of Probable Cause

“The probable cause element of malicious prosecution ‘“calls 

on the trial court to make an objective determination of the 

‘reasonableness’ of the defendant’s conduct, i.e., to determine 

whether, on the basis of the facts known to the defendant, the 

institution of the prior action was legally tenable” . . . . 

[Citation.]’ [Citation.] ‘A claim is unsupported by probable cause 

only if “‘“any reasonable attorney would agree [that it is] totally 

and completely without merit.”’” [Citations.] “This rather lenient 

standard for bringing a civil action reflects ‘the important public 

policy of avoiding the chilling of novel or debatable legal claims.’” 

[Citation.] The standard safeguards the right of both attorneys 

and their clients “‘“to present issues that are arguably correct, 

even if it is extremely unlikely that they will win.”’” [Citation.]’ 

[Citation.]” (Divine Food & Catering, supra, 92 Cal.App.5th at 

p. 1064.) “‘A litigant will lack probable cause for his action . . . if 

he relies upon facts which he has no reasonable cause to believe 

to be true.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 

Cal.4th 260, 292.) 
14

In W&P’s trial brief in the attorney fee action—to which 

W&P did not object in the instant action—W&P admitted that 

after reviewing the home surveillance videos they did not believe 

Viviane had fabricated the sexual abuse allegations. W&P 

attempts to undermine this admission with a letter Viviane wrote 

to the family court judge stating she was “convinced that 

[Timothy] will never do anything to harm [their son].” W&P 

contend this letter supported their decision to file the underlying 

action on Timothy’s behalf. In light of W&P’s admission, 

however, Viviane’s apparent equivocation merely raises a factual 

issue and does not refute Viviane’s evidence as a matter of law. 

Therefore, Viviane has demonstrated the minimal merit 

necessary to show that W&P lacked probable cause to sue her on 

Timothy’s behalf for emotional distress.

Timothy notes that he objected to W&P’s brief in its 

entirety as inadmissible hearsay.6 The court, however, did not 

rule on that objection, but rather merely recognized that its grant 

of judicial notice of the brief did not extend to the truth of any 

matters asserted therein. Moreover, Timothy did not specify any 

particular statements or explain why those statements would 

6 For the first time on appeal, Timothy also claims that 

W&P’s trial brief and the Godlis declaration—and in particular 

their references to the home surveillance video clip that 

purportedly shows Timothy committing an inappropriate act 

similar to that described by the child in Viviane’s cell phone 

video—cannot be deemed admissible without violating the 

secondary evidence rule (Evid. Code, § 1521). We agree with 

Viviane that Timothy forfeited this claim by not raising it below. 

(People v. Lucas (2014) 60 Cal.4th 153, 264-265, disapproved on 

another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 

53-54, fn. 19.)
15

necessarily be excluded at trial as inadmissible hearsay. For 

example, W&P’s trial brief is replete with statements that would 

likely be admissible against W&P at trial under Evidence Code 

section 1220.7 Even if none of those statements could be 

admitted against Timothy, W&P’s trial brief is also admissible for 

the nonhearsay purpose of demonstrating that Timothy is aware 

of their allegations against him. Timothy was the defendant in 

the attorney fee action, and the brief’s proof of service reflects 

service upon him through his attorney. Timothy, however, 

offered nothing to dispute that he was aware of the brief and its 

contents, and in particular the allegations relating to the home 

surveillance video clip.

Moreover, Timothy did not object to the Godlis declaration; 

he only objected to the spreadsheet attached to the declaration as 

an exhibit. In Sweetwater, supra, 6 Cal.5th 931, our Supreme 

Court addressed the form evidence must take in opposing an 

anti-SLAPP motion, and whether such evidence would be 

admissible at a later trial. The court rejected the assertion that 

affidavits and declarations signed under penalty of perjury are 

barred from consideration as inadmissible hearsay: “Although 

affidavits and declarations constitute hearsay when offered for 

7 Evidence Code section 1220 states in pertinent part that

“[e]vidence of a statement is not made inadmissible by the 

hearsay rule when offered against the declarant in an action to 

which he is a party in either his individual or representative 

capacity, regardless of whether the statement was made in his 

individual or representative capacity.” Although this “exception 

to the hearsay rule is sometimes referred to as an exception for 

admissions, the exception is not so limited. [Citation.] Instead, 

the exception applies to all statements of the party against whom 

they are offered.” (People v. Rodriguez (2014) 58 Cal.4th 587, 

637.) 
16

the truth of their content, section 425.16, subdivision (b)(2) 

permits their consideration in ruling on a pretrial anti-SLAPP 

motion. . . . [D]eclarations may be considered, not because they 

satisfy some other hearsay exception, but because they qualify as 

declarations or their equivalent under section 2015.5 and can be 

considered under section 425.16.” (Id., at pp. 937, 942.) 

The court in Sweetwater went on to conclude that “at the 

second stage of an anti-SLAPP hearing, the court may consider 

affidavits, declarations, and their equivalents if it is reasonably 

possible the proffered evidence set out in those statements will be 

admissible at trial. Conversely, if the evidence relied upon 

cannot be admitted at trial, because it is categorically barred or 

undisputed factual [assertions] show inadmissibility, the court 

may not consider it in the face of an objection. If an evidentiary 

objection is made, the plaintiff may attempt to cure the asserted 

defect or demonstrate the defect is curable.” (Id. at p. 949, italics 

omitted.)

Although the Goldis declaration was prepared for the 

family court proceedings, Goldis signed the declaration under 

penalty of perjury. The declaration thus meets the requirements 

of section 2015.5 and can be considered in adjudicating the 

motions to strike under section 425.16. Moreover, we conclude it 

is reasonably possible that the evidence Timothy was aware of 

what Godlis had observed on the video (or at least how Godlis 

had described it) will be admissible at trial. Godlis declared 

under penalty of perjury that he gave both Timothy and W&P 

copies of the home video surveillance clip as well as the 

spreadsheet describing the incident he observed. W&P’s trial 

brief and the Godlis declaration thus both support an inference

that Timothy knew or should have known there was video 

evidence (or at least an allegation that such evidence existed) 
17

that tended to corroborate Viviane’s sexual abuse allegations

when he filed the underlying action and alleged Viviane “knew

that the alleged acts of sexual abuse . . . did not occur and that 

the allegations that [Timothy] sexually abused the Minor Child 

were untrue.”

Timothy notes that the second Godlis declaration—which 

Timothy filed in reply to Viviane’s opposition to his anti-SLAPP 

motion—also explains that while the spreadsheet did include the 

described notation of the “odd” video clip, the notation “[did] not 

necessarily reflect my opinion of the video” and that after he later 

viewed the same video clip “approximately 100 times” he reached 

the opinion that “Mr. Delaney was not sexually molesting his 

son.” Godlis also stated that he expressed this opinion to

Timothy “at various times throughout 2017 and 2018.” This 

second Godlis declaration merely creates an issue of fact and does 

not, as a matter of law, defeat Viviane’s evidence. Accordingly, 

Viviane has met the minimal merit standard of showing Timothy

lacked probable cause in bringing the underlying action.

Malicious Prosecution - Malice

“‘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 bringing a perceived guilty person 

to justice or the satisfaction in a civil action of some personal or 

financial purpose. [Citation.] The plaintiff must plead and prove 

actual ill will or some improper ulterior motive.’ [Citations.] 

Malice ‘may range anywhere from open hostility to indifference. 

[Citations.] Malice may also be inferred from the facts 

establishing lack of probable cause.’” (Soukup v. Law Offices of 

Herbert Hafif, supra, 39 Cal.4th at p. 292.) “Since parties rarely 

admit an improper motive, malice is usually proven by 
18

circumstantial evidence and inferences drawn from the evidence.” 

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 

204, 218.)

Viviane’s evidence indicates that W&P filed and prosecuted

an action alleging Viviane falsely accused Timothy of sexually 

molesting their son even though W&P believed there was 

evidence, the home surveillance video, that supported Viviane’s 

allegations. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 

Cal.3d 863, 881 [“evidence that the defendant attorney did not

subjectively believe that the action was tenable would clearly be 

relevant to the question of malice”].) This evidence is sufficient to 

demonstrate the minimal merit necessary to defeat W&P’s antiSLAPP motion on the issue of malice. W&P countered with a 

declaration from Pettine stating that he did not have any malice 

toward Viviane in filing and prosecuting the underlying action 

while representing Timothy. Once again, this evidence creates a 

factual issue but does not defeat Viviene’s evidence as a matter of 

law. 

Viviane has also made a prima facie showing that Timothy 

filed the underlying action aware that the home surveillance 

video showed him engaging in conduct similar to what his son 

described in the video that Viviane recorded on her cell phone. 

Timothy relies on Godlis’s second declaration to refute any 

malice, but this evidence merely creates a disputed factual issue

and does not defeat Viviane’s claim as a matter of law.

The underlying action was filed and prosecuted at the same 

time Timothy and Viviane were engaged in a custody dispute in 

the family law case regarding their son. Viviane contends it is 

not a coincidence that the underlying action was filed only a few 

days before trial in the family law case was scheduled to begin. 

In light of evidence supporting the lack of probable cause, it is 
19

reasonable to infer respondents brought the action for purposes 

unrelated to the merits and instead their intent was to force 

Viviane to defend herself, incur litigation costs and to gain some 

advantage in the family law proceeding. We find Viviane made a 

prima facie showing sufficient to establish malice for the limited 

purpose of defeating both motions to strike.

Malicious Prosecution - Favorable Termination

“A voluntary dismissal is presumed to be a favorable 

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

(Sycamore Ridge Apartments LLC v. Naumann (2007) 157 

Cal.App.4th 1385, 1400.) “A voluntary dismissal of the prior suit 

by the plaintiff—not resulting from a settlement—will, in 

general, constitute a favorable termination. [Citation.] ‘[A] 

voluntary dismissal, even one without prejudice, may be a 

favorable termination which will support an action for malicious 

prosecution. [Citation.] “In most cases, a voluntary unilateral 

dismissal is considered a termination in favor of the defendant in 

the underlying action . . . .” [Citations.]’ [Citation.] In many 

instances the dismissal ‘may be an implicit concession that the 

dismissing party cannot maintain the action and may constitute 

a decision on the merits.’ [Citation.] But ‘“[i]t is not enough . . . 

merely to show that the proceeding was dismissed.” [Citation.] 

The reasons for the dismissal of the action must be examined to 

determine whether the termination reflected on the merits. 

[Citations.]’” (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 205.) 

Timothy filed a declaration with his motion to strike 

explaining that he dismissed the underlying because he “was 

concerned about the impact such a trial would have on our son.

. . . I was also concerned about the costs associated with the trial 

and decided the best course of action was to dismiss the case.” 

Timothy’s explanation once again creates an issue of fact and 
20

does not defeat the presumption in favor of Viviane as a matter of 

law, especially in light of her prima facie showing that he and 

W&P lacked probable cause and acted with malice. “Where, as 

here, the previously suing parties voluntarily dismissed the 

malicious prosecution plaintiff without prejudice, the dismissal is 

presumed to reflect the plaintiff's innocence. . . . This 

presumption is rebuttable, but whether it has been rebutted is a 

question of fact.” (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 

538.)8

Attorney - Client Privilege

W&P contend both below and on appeal that Viviane’s 

claim against them for malicious prosecution should be dismissed 

because they “cannot fully explain the representation of their 

client without a waiver [of the attorney-client privilege] and 

would be forced either to defend this lawsuit with the equivalent 

of having one hand tied behind their backs or by disclosing the 

inviolate confidence of their client.”

Whether W&P will be hampered in defending against 

Viviane’s claims remains to be seen. “Further, although a case 

may be dismissed on the ground that the attorney-client privilege 

prevents an attorney-defendant from presenting an adequate

defense, the trial court must first conduct an evidentiary hearing 

to ‘determine whether it is able to effectively use “ad hoc 

measures from [its] equitable arsenal,” including techniques such 

as “sealing and protective orders, limited admissibility of 

evidence, orders restricting the use of testimony in successive 

proceedings, and, where appropriate, in camera proceedings,” so 

8 We deny Viviane’s request for judicial notice of a juvenile 

custody order filed after the underlying action was dismissed 

because our consideration of that document is not necessary to 

our resolution the appeal.
21

as to permit the action to proceed.’” (Rickley v. Goodfriend (2013) 

212 Cal.App.4th 1136, 1165-1166 citing Dietz v. Meisenheimer & 

Herron (2009) 177 Cal.App.4th 771, 793; see also General 

Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190

[“[W]hether the privilege serves as a bar to the plaintiff’s 

recovery will be litigated and determined in the context of 

motions for protective orders or to compel further discovery 

responses, as well as at the time of a motion for summary 

judgment”].)

We decline to find at this early stage of the case that the 

attorney-client privilege will hamper W&P’s defense such that 

dismissal is required. 

Attorney Fees

Because we are reversing the order granting respondents AntiSLAPP motions as to Viviane’s claims for malicious prosecution, 

the order awarding Timothy attorney fees as the prevailing party 

must also be reversed. (Cole v. Patricia A. Meyer & Associates, 

APC (2012) 206 Cal.App.4th 1095, 1123.) “On remand, the trial 

court must exercise its discretion in determining the appropriate 

amount of fees and costs, if any, to which these defendants are 

entitled.” (Ibid.)

DISPOSITION

The order granting respondents’ respective anti-SLAPP 

motions (§ 425.16) as to appellant’s cause of action against them 

for malicious prosecution is vacated and the judgment related 

thereto is reversed. On remand following issuance of the 

remittitur, the superior court is directed to enter an order 

denying respondents’ special motions to strike the cause of action 

for malicious prosecution in appellant’s first amended complaint. 

The order granting Timothy $18,765.15 in attorney fees 

and costs as the prevailing party under section 425.16, 
22

subdivision (c) is vacated. On remand, the superior court is 

directed to conduct further proceedings consistent with this 

decision and determine the appropriate amount of fees and costs, 

if any, to which Timothy is entitled. Appellant shall recover her 

costs on appeal. 

 NOT TO BE PUBLISHED.

CODY, J.

We concur:

GILBERT, P. J. 

BALTODANO, J. 
23

Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

______________________________

Rothschild & Alwill, Kristi D. Rothschild; Benedon & 

Serlin, Gerald M. Serlin and Wendy S. Albers, for Plaintiff and 

Appellant. 

Thyne Taylor Fox Howard, Larry L. Taylor, for Defendant 

and Respondent Timothy Delaney.

Klinedinst, Heather L. Rosing & David M. Majchrzak, for 

Defendants and Respondents Wilson & Pettine, LLP and Paul A. 

Pettine, III.