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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

VIVIANE DELANEY,

P laintiff and Appellant,

v.

TIMOTHY DELANEY et al.,

Defendants and Respondents

. 2d Civ. No. B3 20436 (Cons. w/ B321820) (Super. Ct. No. 21CV03600 ) ( Santa Barbara County )

Viviane Delaney appeals the granting of special motion s to strike her complaint for malicious prosecution pursuant to the
anti

- SLAPP statute ( Co de Civ

. Proc

., 1 § 425.16 )

. Viviane 2 sued respondents

— her ex

- h usband Timothy Delaney and his former attorney s

— for malicious prosecution after their prior action against her for emotional distr ess 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).)
W e agree with Viviane that the trial court erred in granting
both anti

- SLAPP motions on the ground that her anti

- SLAPP

mo tion 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
I n 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 mandat ed reporters

. Timothy was arrested that same day
but no charges were filed

. Following his arrest, Timot h y retained attorney Paul A. Pettine, III (Pettine) and Pettine’s law firm Wilson & Pettine,
LLP (collectively W&P) to repres ent him

. On Timothy’s behalf,
W&P file d a petition for dissolution of his marriage to Viviane

. In May 2018

, W&P also filed a complaint against Viv ian e 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 abus ed the Minor Child were untrue, but [ Vivian e ] intentionally pursued the course of action in order to obtain custody of Minor C hild and take the Minor Child to Roseville, CA, where

. . . [ Vivian e ] had accepted employment requiring her to move to Roseville.”3 Viviane ’s anti

- SLAPP motion t o 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 u nderlying a ction with prejudice in September 2019. In September 2021, Viviane filed the instant action against respondents alleging causes of a ction for malicious prosecution, intentional and negligent infliction of emotional distr ess , 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 resid ence showed an in teraction 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 t heir 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 a gainst 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 [ Vivian e ] in an effort to gain primary child cust ody and to relocate the child to the Sacramento area, the home surveillance video dispelled that theor y . . . . [¶] Approximately ten (10) days before [ Vivian e’s ] car videoing of the minor child describing

3 P oulis, who was also named as a defendant in Viviane’s claim fo r malicious prosecution, filed an answer to her complaint and is not a party to this appeal.4

molestation, the . . . home video surveillance sy stem showed [ Timothy ] performing an act eerily similar to the act the minor child described in [ Vivian e’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 chil d custody evaluator

, and the family law court was also unaware of it when it issued its custody order. W&P suggeste d 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 tape s

— “not th e 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 f rom Brian Godlis that she filed in the family law proceedings. Godlis

, who o wns a computer support company , was previously retain ed by respondent s in 2017 to review the home surveillance videos
recorded over a 25

- day period of time before an d after Viviane’s cell phone video of the child’s report of abuse

. Godlis ’s
declaration refer s to a spreadsheet “ describing what was depicted on each clip,” which includ es 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 spreadshee t

— 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 it self. W & P objected to
Godlis ’s declaration a s inadmissible hearsay and as irrelevant
because i t post

- date s their representation of Timothy

. W&P did

not raise any evidentiary objections to t heir July 2021 trial brief in the attorney fees action.
T he trial court granted Vivian e’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 tri al
court overruled Vivian e’s objections to Timothy’s declaration filed in support of his motion, but it did not rule on any other evidentiary objections. In granting responde nts’ motions to strike , th e trial court reasoned that the denial of Viviane’s an ti

- 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 , e motional distress, and abuse of

process were barred by the adverse judgment rule

. Because the court concluded that Viviane’s claim s 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 subse quently granted Timothy $ 18,6 6 5 .15 in attorney fees as the prevailing party pursuant to section 425.16, subdivision (c).6 DISCUSSION
Viviane contends the t rial court erred in granting respondents’ anti

- SLAPP motion s to strike her cause of action for malicious prosecution because she demonstrated a reasonab le probability of prevailing on the merits of that claim

. 4 W e 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 u nder 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 i ssue.” (§ 425.16, subd. (b)(1) .) If the defendant
satisfies th e 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.)
T o defeat the m otion, 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 .” (N a vellier 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 (20 22) 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

- SLAP P statute
has been met because the law makes clear that all claims for malicious pro secution 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
suf ficient 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

3 85; Divine Food & Catering, LLC v. Western Diocese of Armenian Church of No rth 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 Build ing Co. (2019) 6 Cal.5th 931, 940 ( Sweetwater) .) T he 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 m alicious prosecution requires her to satisfy th ree elements: “T he underlying action must have been: (i) initiated or maintained by, or at the direction of, t he 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

u nderlying a ction had already det ermined Timothy’s claims had
merit when it denied Viviane’s anti

- SLAPP motion

. 5 The c ourt

5 Although the trial court stated Viviane “provides no argument tha t 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 , subd ivision (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
th e 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.4 th 811

. (Assem. Bill No. 1158 (2005

- 2006 Reg. Sess.) § 1 .) S ection 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.” Th e 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 claim s

. 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 th at action

. W&P makes no effort t o demonstrate how th at decision could be construed as a vic tory 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 motion s and in arguing the motion

.10

the merits. (

Area 55

, supra , 61 Cal.Ap p.5th at p. 167 [the interim adverse judgment rule requires a showing of an “ interim victory
on the merit s in the prior action ” ].) Because the cour t overruled
the demurrer as to the emotional distress claim s in the underlying action on the same grounds it denied Viviane’s anti

SLAPP motions

, that ruling does not qualify as a victory on the
merits of th ose claim s

. To the extent respondents also rely on statements the family law judge made at a June 2018 hearin g 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 v ideo 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 “w as 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 co unters 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 th at the one

- year statute of limitations was not
tolled as a matter of law, such that Viviane’s c laim is un timely.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 reject ed 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.Ap p.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 mali cious 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 pro ving 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 Muchi n Rosenman
LLP (2010) 188 Cal.App.4th 189, 224 .) In determining whether Viviane’s evidence survive s anti

SLAPP 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. Sup erior Court (1994) 27 Cal.App.4 th 809, 828 , disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68 .) It is reasonable to conclu de that
Vivian e did not discover, and should not have discovered, that W&P no longer believed Timothy’s contention that th e 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 V iviane’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 pe riod 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.
W e agree with Viviane that her claim accrued when sh e

“ discover [ed] , or through the use of reasonable diligence should13

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

pr edate 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 her e, a malicious prosecution action is brought against an att orney. ( 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 ‘reasonablenes s’ 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 “‘“a ny 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 cla ims.’” [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 actio n

— 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 al legations

. W&P attempts to undermine th is admission with a letter Viviane wrote to the family court judge stat ing she was “convinced that [Timothy] will never do anything to harm [their son]

. ” W&P
contend this letter supported their decision to file the u nderlying 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

matter s 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 declaratio n

— a nd 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 vide o

— 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 (20 15) 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 the ir allegati ons ag ainst 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
, a nd in particular the allegations relating to the home
surveillance video cl ip

. Moreover, Timothy did not object to the Godlis declaration ; he only objected to the spr eadsheet 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 consi deration 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 represe ntative 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]ecl arations 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 p p

. 937, 942.)
The court in Sweetw ater 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 a n objection. If an evidentiary objection is ma de, 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
wha t Godlis had observed on the vide o (or at least h ow 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 desc ribing 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 a t least an alleg ation that such evidence exist ed )17

that tended to corroborate Viviane’s sexual abuse allegations when he filed the underlying action and alleged Vivian e “knew
that the alleged acts of sexual abuse

. . . did not occur and that the allegations that [Timothy] sexually abused the Minor Child

were untrue .”
T imothy notes that the second Godlis declaratio n

— which Timothy filed in reply to Vivian e’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

s on.” Godlis also stated that he expressed this opinion to Timothy “at various times throughout 2017 and 2018.” This second Godlis declaration merely creates a n issue of fact and does not, as a matter of law, defeat Viviane’s evidence. Accordingly,
Vivian e 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 satisfact ion 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.] M alice 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 by18

circumstantial evidence an d inferences drawn from the evidence.” ( HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218. ) Viviane’s evidence indicates t hat W&P filed and prosecute d an action alleging Vivian e falsely accused Timothy of sexually molesting their son even though W&P believed there was evidence, the home surveillance video, that supported Viv iane’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 anti

SLAPP motion on the issue of malice. W &P countered with a declaratio n from Pettine stating that he did not have any malice
toward Vivian e in filing and prosecuting the underlying action while representing Timothy. Once again, this evidence creates a
factual issue but does not defeat Vivien e’s evidence as a mat ter 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
describe d in the video that Viviane recorded on her cell phone

. Timothy relie s 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 Ti mothy 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 l ight of evidence supporting the lack of probable cause

, it is19

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

a dvantage in the family law proceeding. We find Vivian e 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 settlem ent

— 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 u nilateral
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 stri ke 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 cas e.” Timothy’s explanation once again creates an issue of fact and20

do es not defeat the presumption in favor of Vivian e 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 innocenc e.

. . . 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
cla i m against them for malicious prosecution should be dismissed because they “cannot fu lly 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.”
W hether W&P will be hampered in defending against Viviane’s claims remains to be see n

. “ 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 Die tz 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 tha t dismissal is required. Attorney Fees
Because we are reversing the order granting respondents Anti

SLAPP motions as to Viviane’s claims for malicious prosecution, the order awarding Timothy attorney fees as the prevailing party

must also be reversed

. ( C ole v. Patricia A. Meyer & Associates,
APC (2012) 206 Cal.App.4 th 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. )
D ISPOSITION The order granting respondents’ respective anti

- SLAPP
motions ( § 425.16) as to a ppellant’s cause of action against them for malicious prosecution is vacated and the judgment related
thereto is reversed

. On remand following issuance of the
remi ttitur , the superior court is directed to enter an order denying r espondents’ special motions to strike the cause of action for malicious prosecution in a ppellant’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.
Kli nedinst, Heather L. Rosing & David M. Majchrzak, for Defendants and Respondents Wilson & Pettine, LLP and Paul A. Pettine, III.