Filed 5/27/22 Vorobiev v. Wolf CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DAVID VOROBIEV

,

Plaintiff and Respondent

,

v.

ERIC W OLF et al.,

Defendant s and Appella nt s

. B 312666

(Los Angeles County Super. Ct. No. 20STCV39035 )

APPEAL from an order of the Superior Court of Los Angeles County. Maurice A. Leiter , Judge. Affirmed. Eric Wolf, in pro. per., for Defendant and Appellant. Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Petti t and Matthew C. Smith for Defendants and Appellants Robert J.
Hudock and Hu dock Employment Law Group, APC. Law Offices of Rodney T. Lewin and Chandler Owen
Bartlett for Plainti ff and Respondent.

* * * * * * * * * *2 Defendant s and appellant s Robert J. Hudock and Hudock Employm ent Law Group, APC, appeal from the order denying their special motion to strike pursuant to Code of Civil Procedure section 425.16 ( anti

- SLAPP motion ). All further undesignated statutory references are to this code. Defendant and appellant Eric Wolf, who joined in the motion, also appeals from the court’s
denial.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Th is appeal arises from a long

- running d ispute between property owners in a planned community known as Bell Canyon

. Eric Wolf is a property owner and resident of Bell Canyon , as well as a longtime member of the board of directors for the Bell Canyon homeowners’ association

. Leon and Marina Re ingold, a married couple, also own property in Bell Canyon

. T hey are not parties to this appeal. Since at least 2016, the Reingolds have had a contentious relationship with Wolf stemming primarily from the Reingolds’
belief that Wolf ha d engaged in misco nduct as a member of the board and had unfairly interfered with their efforts to develop their property. Marina’s father is p laintiff and respondent David
Vorobiev. Vorobiev apparently did not have any personal
interactions with Wolf. In 2016, while the Reingolds were beginning t o develop their property, they used an e

- mail account set up by Marina
under her father’s name. When e

- mails were sent from that account, the sender was identified as “David Vorobiev” with the
actual e

- mail address identified as jem*** @ ******** * .net (partially redacted for privacy). On October 1, 2016, Leon , using
the Vorobiev e

- mail account, sent an e

- mail to Barry Schehr,3

a nother member of the Bell Canyon board of directors. The e

mail outlined numerous complaints and accusat ions of
misconduct against Wolf regarding his alleged interference in the Reingolds’ development plans. Among other things, the e

- mail asserted that Wolf had threatened the Reingolds , telling them their development plans would not be approved if they used a builder ( Nissim David

- Chai) who was in litigation against the homeowners’ association . Wolf was a defendant in that action

. Leon also said Wolf told him he better do whatever he says or Leon w ould not get the approvals for his property

. In October 20 17, Wolf, represented by Robert J. Hudock
and his firm, Hudock Employment Law Group , filed an action for
defamation and intentional infliction of emotional distress against the R eingolds and Vorobiev in Ventura County Superior Court (the Defamation Action)

. Wolf alleged the Reingolds and
Vorobiev , along with unidentified Doe defendants, engaged in numerous illegal acts, either personally or as members of a conspiracy, that were intended to defame Wolf , damage his reputation and cause him distress . Wolf al leged the Reingolds
and Vorobiev fraudulently obtain ed Wolf’s private cellular phone
records from Sprint and then used the information to anonymously contact Wolf’s friends, family and colleagues

, accusing Wolf of unethical and corrupt behavior . Wolf furt her alleged the the Reingolds and Vorobiev made and published
numerous oral and written defamatory statements over a period
of several months. The statements in the October 1, 2016 e

- mail
sent to Schehr from the Vorobiev e

- mail account were described
in d etail in the complaint. Wolf allege d the statement was made by Leon and published by Vorobiev via e

- mail.4 In September 2019, Vorobiev filed a motion for summary judgment in the Defamation Action

. In a support ing d eclaration

, Vorobiev stated he was not computer literate, did not own or use a computer, was not fluent in English

, and primarily spoke his native language, Russian. Vorobiev further attested he had nothing to do with the October 1, 2016 e

- mail and had first
learned of its existence when he w as sued by Wolf. In October 2019, p rior to the hearing on Vorobiev’s summary judgment motion, Wolf filed a voluntary dismissal of
Vorobiev from the Defamation A ction with prejudice. Vorobiev then filed this action, stating a sole cause of action
for malicious prosecution against Wolf

, Hudock and Hudock Employment Law Group , APC, based on the filing and prosecution of the Defamation Action. Hudock and Hudock Employment Law Group filed an anti

SLAPP motion

. Wolf, proceeding in propria persona, join ed in
the motion an d did not submit any additional evidence on his
own behalf

. Defendants argued that Vorobiev could not establish the essential elements of a malicious prosecution claim of favorable termination, lack of probable cause and malice.
In his supporting declaration, Hudock attested to his efforts to negotiate a dismissal of Vorobiev from the Defamation Action, including requesting a declaration from Vorobiev acknowledging he played no role in the publication of the October 1, 2016 e

- mail.
He e xplained that counsel for Vorobiev rebuffed all of his efforts in that regard. Vorobiev opposed defendants’ motion, conceding that a malicious prosecution claim involves protected activity under the
anti

- SLAPP statute , but arguing that his evidence estab lished a probability of prevailing on the merits. Vorobiev argued5

defendants’ motion focused solely on the October 1, 2016 e

- mail and did not address the other allegations made in the Defamation
Action , including the alleged conspiracy to steal cell phone
records

. The opposition includ ed Vorobiev’s declaration stating the same facts he had attested to in his summary judgment motion, and declarations from Leon and Marina Reingold. In his declaration, Leon said he used the e

- mail account set

up by his wife in the name of Vorobiev to regularly correspond
with Wolf, t he other Bell Canyon board member s, and the
architectural committee

. C opies of several e

- mail exchanges between April to October 2016 were attached as exhibits

. Leon
said he was the one who sen t the October 1, 2016 e

- mail to Schehr and that his father

- in

- law, Vorobiev, had nothing to do
with it. In an e

- mail dated October 27, 2016

, from Wolf to the
Vorobiev e

- mail account, Wolf wrote “Dear Mr. and
Mrs

. Reingold” and concluded the e

- mail with th e following

statement: “ For the record, I notice that David V orobiev is an alias for your email. I have noticed this fact on other
communications. Please consider any email to this email address a delivery to Mr. and Mrs

. Reingold. ”
Leon also said th at well before Wolf filed the Defamation Action, Wolf threatened to drag his elderly father

- in

- law into “this situation

, ” referencing their ongoing dispute. Wolf told
Leon that if he did not retract the statements he had made in the October 1, 2016 e

- mail , he would sue Vorobiev

. Wolf also told
Leon “ [w] e might approve you and you can build your house, but
I’ ll own it if you don ’ t retract ” the October 1, 2016 e

- mail. Vorobiev also presented portions of deposition transcripts from the lawsuit filed by Ni ssim David

- Chai against Wolf, the Bell Canyon homeowners’ association and others. Hudock was6

present at the depositions as Wolf’s counsel. The deposition of Wolf took place on August 15, 2017 . He admitted that he
considered the Vorobiev e

- mail account t o be “an alias” of Leon. The deposition of Leon took place on October 26, 2017. Leon admitted he was the one who wrote and sent the October 1, 2016

e

- mail

. Yet the Hudock defendants filed the Defamation Action against Vorobiev on October 5, 2017

, after Wolf admitted in deposition that he knew the Vorobiev e

- mail account was an alias of Leon, and continued to prosecute it after Leon admitted he sent the allegedly defamatory e

- mail. The hearing on the motion took place on May 5, 2021

. T he

court entert ained argument and then took the motion under
submission

. Later that day, t he court issued a written order denying the motion, finding Vorobiev had established sufficient
facts on the elements of favorable termination , lack of probable

cause , malice and d amages

. This appeal followed.

DISCUSSION
1. Applicable Law
The anti

- SLAPP statute was enacted to provide a procedure for the early dismissal of frivolous causes of action that infringe on the rights to free speech and to petition for a redress of gri evances. ( Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 10 60 .) The statute states that

“ [a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free

sp eech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the7

plaintiff has established that there is a probability that the

p laintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) In resolving a n anti

- SLAPP motion

, the court engages in a

two

- step analysis. The court must first determine whether the moving defendant “has made a threshold showing that the challenged c ause of action is one arising from protected activity.” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If the court determines the defendant met this initial burden, the burden shifts to the plaintiff and the court “must then determine whether the plai ntiff has demonstrated a probability of prevailing on the claim.” ( Ibid .) Only those causes of action that satisfy both prongs of section 425.16 ( aris ing from protected activity and lack ing minimal merit ) are subject to being stricken
under the statute. ( Navellier, at p. 89.) We independently review a ruling on an anti

- SLAPP motion, applying the same two

- step procedure as the trial court. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 ( Soukup ) .) We consider the pleadings a nd the admissible evidence submitted in the moving and opposing

papers. (§ 425.16, subd. (b)(2).) We accept as true all evidence
favorable to the nonmoving plaintiff and do not compare the weight of the parties’ evidence or make credibility
determination s. We only evaluate the moving defendant’ s evidence to determine if it defeats the plaintiff’s evidence as a matter of law. ( S oukup

, at p. 269, fn. 3.)
2

. Step One: Protected Activity Vorobiev’s sole cause of action against defendants is for
malicious prosecution of a civil action. He concedes, as he did below, that a malicious prosecution claim is subject to an anti

SLAPP motion. We agree. ( Jarrow Formulas, Inc. v. LaMarche8

(2003) 31 Cal.4th 728, 73 5 [every reviewing court “ that has addressed the q uestion has concluded that malicious prosecution causes of action fall within the purview of the anti

- SLAPP

statute ”] .)
3

. Step Two: Minimal Merit
To defe at defendants’ motion, Vorobiev was required to
demonstrate his malicious prosecution claim was “ b oth legally sufficient and supported by a sufficient prima facie showing of
facts ” to sustain a judgment in his favor if his evidence was
credited. ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) “ ‘ [C]laims with the requisite minimal me rit may proceed. ’ ” ( Baral v. Schnitt (2016) 1 Cal.5th 376, 385.) A malicious prosecution claim consists of three elements. The plaintiff must demonstrate the underlying action (1) terminated favorably to plaintiff, (2) was brought or
maintained withou t probable cause and (3) was brought or
maintained with malice. ( Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 ( Sheldon Appel ) ; accord, Parrish v.
Latham & Watkins (2017) 3 Cal.5th 767, 775 ( Parrish ) .)

a. Favorable t ermination

“ ‘ In o rder for a termination of a lawsuit to be considered favorable with regard to a malicious prosecution claim, the
termination must reflect on the merits of the action and the plaintiff ’ s innocence of the misconduct alleged in the lawsuit. ’ ” ( Lee v. Kim (2 019) 41 Cal.App.5th 705, 720.) A voluntary
dismissal generally reflects on the merits. ( Medley Capital Corp. v. Security National Guaranty, Inc . (2017) 17 Cal.App.5th 33, 47.) Defendants admit they dismissed Vorobiev from the
Defamation Action after he filed the summary judgment motion declaring his lack of involvement with

, or knowledge of, the9

allegedly defamatory October 2016 e

- mai l. Defendants claim the
dismissal does not reflect on the merits because it was merely a strategic decision to refocus th e litigation on the Reingolds and avoid additional litigation costs in opposing the summary judgment motion

. Vorobiev’s evidence is sufficient at this stage of the proceedings to support a finding defendants dismissed their claims against Vorobiev because he was not liable on the
merits , which satisfies the favorable termination element.
b. Lack of probable c ause The probable cause elemen t requires “ ‘ 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 [or maintenance] of the prior action was legally tenable

. ’ ” ( Parrish

, supra , 3 Cal. 5th at p. 776 , italics added .)
Where the facts known to the defendant a re in dispute,

“ that dispute must be resolved by the trier of fact before the objective standard can be applied by the court. ” ( Mendoza v.
Wichmann (2011) 194 Cal.App.4th 1430, 1450 ; accord, Sheldon Appel

, supra , 47 Cal.3d at p. 881

. ) The facts here are in dispute as to Wolf’s and Hudock’s knowledge regarding Vorobiev’s
involvement in any of the allegedly defamatory conduct

. Vorobiev argues the evidence shows defendants knew the e

- mail account was used by the Reingolds and that Vorobiev had no
involvemen t in any of the communications or in any of the other alleged conduct. Defendants assert they had a reasonable basis for believing Vorobiev sent the October 1, 2016 e

- mail because it
came from an e

- mail account in his na me , he was related to the Reingolds

, and he had refused, until the filing of the summary10

judgment motion, to provide a declaration attesting to his lack of
involvement.
Our task is not to resolve the disputed facts. We are not deciding the merits of Vorobiev’s malicious prosecution clai m. We are only deciding whether Vorobiev has shown his claim has the requisite minimal merit to defeat the anti

- SLAPP motion. As explained above, in making that assessment, we accept as true all evidence favorable to Vorobiev and do not weigh the evidenc e or make credibility determinations. We only consider and evaluate defendants’ evidence to determine if it defeats Vorobiev’s evidence as a matter of law. ( Soukup

, supra , 39 Cal. 4th at p. 269, fn. 3.)
T he e

- mail correspondence between Leon and Wolf, as well
as other members of the Bell Canyon board, supports a finding that Wolf knew, long before the filing of his Defamation Action,
that Leon was the author and sender of the e

- mails and that Vorobiev, Leon’s elderly father

- in

- law

, was not involved

. We cannot rule out at this stage the reasonable inference that
Hudock , as Wolf’s counsel, was also aware of this same
information. There was no other evidence raising a reasonable belief Vorobiev had any involvement in an alleged conspiracy to
defame Wolf.

c. Malice
The m alice element requires a showing the underlying action was filed due to actual ill will or some other improper
motive. ( Gruber v. Gruber (2020) 48 Cal.App.5th 529, 538.)

“ Malice requires more than proof that the party acted without

pr obable cause. ” ( Ibid .) Here, the same evidence discussed above regarding probable cause is sufficient to establish the malice elemen t. Leon11

testified that Wolf directly threatened to sue his elderly father

- in

law in order to extort a retraction from him of the accusations he made against Wolf. That evidence, accepted as true for purposes of the motion, supports a finding the action was initiated and maintained with the requisite malice.
The evidence , including the e

- mail correspondence from April to October 2016 and the depositions in the David

- Chai lawsuit, also demonstrates that Hudock knew or had reason to know well before the filing of the Defamation Action that Vorobiev was not the one who sent the October 1, 2016 e

- mail. No other evidence was p resented supporting any bases for concluding Vorobiev had conspired to defame Wolf. Nevertheless, Hudock, acting as Wolf’s attorney, continued to prosecute the Defamation Action for almost another two years before dismissing Vorobiev. The evidence is suf ficient to raise an inference of malice by the Hudock defendants.
d. Damages Damages are an element of any tort cause of action but
defendants did not assert in their anti

- SLAPP motion below that
Vorobiev could not show he suffered damages. Thus, Vorobi ev did not offer evidence of damages in opposition to the anti

- SLAPP motion. In their reply papers in the trial court, the Hudock defendants argued that Vorobiev failed to submit any evidence he suffered either emotional distress or monetary damages in th e form of attorney fees defending the Defamation Action. The trial court found damages could be inferred. On this record, we agree with the trial court that damages could be inferred from Vorobiev’s evidence in opposition to the motion.12 DISPOSITION
Th e order denying the special motion to strike by
defendant s and appellant s Robert J. Hudock and the Hudock Employment Law Group , APC, and denying the joinder by defendant and appellant Eric Wolf is affirmed. Plaintiff and respondent David Vorobiev s hall r ecover costs of appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.