Filed 2/13/24 Alepyan v. Adzhemyan CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

ZABEL ALEPYAN et al.,

Cross-complainants and 

Appellants,

v.

VARTAN ADZHEMYAN et al.,

Cross-defendants and 

Respondents.

 B323610

 (Los Angeles County

 Super. Ct. No. 

 20STCV02294)

APPEAL from an order of the Superior Court of Los 

Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.

Ilya Alekseyeff, for Appellants and Cross-complainants.

Raymond Hovsepian, for Respondent and Cross-defendant 

Vartan Adzhemyan.

Nemecek and Cole, Kenny C. Brooks and Daniel L. Reback, 

for Respondent and Cross-defendant Raymond Hovsepian.
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Attorney Raymond Hovsepian, on behalf of his client 

Vartan Adzhemyan, filed a quiet title action against Zabel 

Alepyan and Artur Elizarov. The action was later dismissed by 

stipulation, but plaintiffs and appellants Alepyan and Elizarov 

brought the current malicious prosecution action against 

defendants and respondents Adzhemyan and Attorney

Hovsepian.

1

Respondents each moved to strike the malicious 

prosecution action under the anti-SLAPP law (Code Civ. Pro., 

§ 425.16), which the trial court granted because the underlying 

action was dismissed pursuant to settlement. We agree that 

appellants are unable to establish favorable termination because 

the underlying action was resolved by settlement. We therefore 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because we resolve this appeal on the element of favorable 

termination, we limit our factual and procedural discussion 

accordingly.

1. The Underlying Action

Adzhemyan and Alepyan married in 2008, separated in 

April 2015, and divorced in 2019. During their marriage, they 

lived in a duplex on Harvard Street in the City of Glendale 

(“Harvard Property”). Adzhemyan purchased the Harvard 

Property in his own name in 2005 prior to marriage. In 2012, 

Adzhemyan defaulted on the Harvard Property, but the couple’s 

friend, Elizarov, purchased the property in a “short sale” in 2014. 

Elizarov sold the property to a non-party in 2017.

1

The malicious prosecution action was brought also against 

defendant attorney Gary Simonian, but he was not a party to the 

anti-SLAPP motions, nor is he a party in this appeal.
3

A. The Underlying Complaint

On February 20, 2018, Adzhemyan filed a complaint 

against appellants alleging three causes of action related to the 

Harvard Property: (1) quiet title; (2) cancellation of the deed; and 

(3) damages for breach of fiduciary duty and/or constructive fraud

(“Harvard Action”). In his complaint, Adzhemyan claimed 

Alepyan forged his name on the Harvard Property deed 

transferring title to Elizarov, then falsely notarized the deed.

In November 2020, appellants moved for judgment on the 

pleadings. In May 2021, the trial court granted judgment on the 

pleadings, but with leave to amend as to breach of fiduciary 

duty.

2 On June 1, 2021, Adzhemyan filed a first amended 

complaint.

B. The Settlement and Stipulation to Dismiss

On June 29, 2021, Ilya Alekseyeff, appellants’ attorney, 

emailed Attorney Hovsepian bank records and other documents 

related to the Harvard Property sale, with a letter entitled, 

“Privileged Settlement Communication (Evid. Code, § 1152)”

(“Settlement Letter”) The letter summarized his theory on how 

these records and documents support the falsity of the allegations 

in the Harvard Action. It stated in conclusion, “[g]iven these 

circumstances and Adzhemyan’s subsequent admissions, Ms. 

Alepyan and Mr. Elizarov will not agree to pay Adzhemyan [sic] a 

penny. However, both Ms. Alepyan and Mr. Elizarov will agree 

[to] waive their costs and attorney’s fees[] if Adzhemyan [sic] 

dismisses the action with prejudice.” A footnote in the letter 

2

The trial court found that an October 4, 2019, stipulated 

divorce judgment and failure to timely join indispensable parties

barred Adzhemyan’s claims for quiet title and cancellation of the 

deed.
4

explained, “[m]y clients have incurred nearly $20,000 in costs and 

attorney’s fees, which my clients can recover because the 

stipulated divorce judgment allows for the recovery of attorney’s 

fees in an enforcement action.” The letter ended with, “[u]nless 

the parties settle, I will then demur to the amended complaint 

and will seek to recover all costs and attorney’s fees after the 

court sustain[s] the demurrer without a further leave to amend.”

The parties eventually agreed to a July 2, 2021 response 

deadline.

On July 2, 2021, Attorney Hovsepian emailed his response,

“[g]o ahead and send me the stip. for a mutual waiver.” The

stipulation filed shortly thereafter specifically explained, 

“Adzhemyan no longer wishes to pursue his claim against 

Defendants [appellants] to save on additional costs of litigation ... 

[and] to save on additional costs of litigation, Defendants 

[appellants] will waive their costs and attorney’s fees[].”

Pursuant to the stipulation, the trial court dismissed the 

Harvard Action with prejudice and parties were to “bear their 

own costs and attorney’s fees in connection with this action.”

2. The Current Action

A. The Malicious Prosecution Complaint

More than six months later, appellants filed the current 

malicious prosecution action alleging Adzhemyan knew the 

Harvard Property was lawfully purchased in a “short sale,” yet

maliciously pursued the Harvard Action to retaliate against 

Alepyan for filing for divorce and to gain leverage in the divorce 

action. Appellants further alleged Adzhemyan’s attorneys filed 

the Harvard Action knowing it was fabricated. The complaint 

omitted any reference to the settlement and the issue of favorable 

termination.
5

B. The Anti-SLAPP Motions

Respondents each filed separate anti-SLAPP motions.

Both conceded a malicious prosecution action is subject to the 

anti-SLAPP statute as a matter of law because it is based on the 

right to petition. Each then argued appellants could not meet 

their burden to establish the Harvard Action was terminated in 

their favor because it was resolved by settlement.

In their oppositions to both motions, appellants argued the 

circumstances leading to the dismissal of the Harvard Action—

namely, “the devastating evidence that exposed Adzhemyan as a 

liar[]” given to respondents prior to the dismissal—supported the 

dismissal was on the merits. They argued the reason given for 

the stipulated dismissal, which was to save on litigation costs,

was likely contrived. Respondents maintained in their replies 

that the dismissal was pursuant to a written settlement 

agreement to avoid additional costs of litigation.

On July 18, 2022, the trial court granted the anti-SLAPP 

motions and reasoned, “[a] dismissal for a waiver of costs is 

sufficient to disqualify an action as successful on the merits. 

[Citation.] Given the plain language in the Stipulation and 

Dismissal, [the Harvard Action] was voluntarily dismissed by 

Adzhemyan to save litigation costs for a waiver of costs.

DISCUSSION

Resolution of this appeal turns on whether appellants have

made a prima facie showing of the favorable termination element 

of malicious prosecution. Appellants argue they have

demonstrated a “probability of success” under the second prong of 

the anti-SLAPP statute because the Harvard Action was 

dismissed based on its lack of merit. On the contrary, the record 
6

establishes the Harvard Action was dismissed pursuant to 

settlement, a termination not favorable to appellants.

1. Anti-SLAPP Law

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

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

defendant has made a threshold showing that the challenged 

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

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

the plaintiff complains were taken ‘in furtherance of the 

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

States or California Constitution in connection with a public 

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

a showing has been made, it then determines whether the 

plaintiff has demonstrated a probability of prevailing on the 

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

31 Cal.4th 728, 733.) 

““This second step is a summary-judgment-like 

procedure.... We first determine whether [appellants’] prima facie 

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

is ‘ “not high.” ‘... Claims with minimal merit proceed. We accept 

[appellants’] evidence as true and do not weigh evidence or 

resolve conflicting factual claims.... We may consider affidavits, 

declarations, and their equivalents if it is reasonably possible 

these statements will be admissible at trial.... [¶] After 

examining [appellants’] evidence, we evaluate [respondents’] 

showings only to determine if they defeat [appellants’] claim as a 

matter of law.... [Respondents] can prevail either by establishing 

a defense or the absence of a necessary element.... If there is a 

conflict in the evidence (the existence of a disputed material fact), 

the anti-SLAPP motion should be denied.” [Citation].” (Citizens 
7

of Humanity LLC v. Ramirez (2021) 63 Cal.App.5th 117, 127-

128.)

We review an order granting an anti-SLAPP motion de 

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

Co. (2019) 6 Cal.5th 931, 942.)

2. Malicious Prosecution

““An action for malicious prosecution has three required 

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

claim in the underlying action without objective probable cause, 

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

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

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

Humanity, supra, 63 Cal.App.5th at p. 128.) The determinative 

issue here is the third element.

On the third element, ““[a] ‘ “favorable” termination does 

not occur merely because a party complained against has 

prevailed in an underlying action. While the fact he has 

prevailed is an ingredient of a favorable termination, such 

termination must further reflect on his innocence of the alleged 

wrongful conduct. If the termination does not relate to the 

merits—reflecting on neither innocence of nor responsibility for 

the alleged misconduct—the termination is not favorable in the 

sense it would support a subsequent action for malicious 

prosecution.’ [Citation.] ‘ “[W]hen the underlying action is 

terminated in some manner other than by a judgment on the 

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

reflects the opinion of the court or the prosecuting party that the 

action would not succeed.’ ” [Citations.]’ [Citation.] ‘Should a 

conflict arise as to the circumstances of the termination, the 

determination of the reasons underlying the dismissal is a 
8

question of fact. [Citation.]’ [Citation.]” [Citation.]” (Citizens of 

Humanity, supra, 63 Cal.App.5th at pp. 128-129.)

A voluntary dismissal may constitute a favorable 

termination on the merits if it reflects an implicit concession that 

the dismissing party cannot maintain the action. (Citizens of 

Humanity, supra, 63 Cal.App.5th at p. 129 (citing JSJ Limited 

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

dismissal on technical or procedural ground, however, including 

lack of jurisdiction, lack of standing, avoiding litigation expenses, 

or settlement, is not considered a favorable termination. (Ibid.)

“Generally, a dismissal resulting from a settlement does not 

constitute a favorable termination because the dismissal reflects 

ambiguously on the merits of the action. The purpose of a 

settlement is specifically to avoid a determination on the merits. 

[Citation.]” (Ibid.) “When litigation is terminated by agreement 

‘there is ambiguity with respect to the merits of the proceeding 

and in general no favorable termination for purposes of pursuing 

a malicious prosecution action occurs.’ [Citations.]” [Citation.]”

(Ibid.)

3. Settlement Precludes Favorable Termination

In summary, appellants argue respondents implicitly 

dismissed the Harvard Action on the merits because, just days

prior to the stipulated dismissal, respondents were provided with 

“irrefutable evidence” that the claims in the Harvard Action were 

false. Respondents maintain probable cause existed to pursue 

the Harvard Action regardless of the “irrefutable evidence,” but 

at any rate, the dismissal was pursuant to a settlement 

agreement to save costs of litigation.

The record here is clear that the dismissal of the 

underlying action was pursuant to a settlement agreement to 
9

save costs of litigation—a technical or procedural ground 

disqualifying favorable termination. The June 29, 2021,

Settlement Letter is transparent; Appellants offered to waive 

costs and attorney fees incurred in defending the Harvard Action,

which they believed they were entitled based on a prior divorce 

judgment, in exchange for a prejudicial dismissal of the Harvard 

Action. The offer was accepted via email by the response 

deadline. This settlement agreement was memorialized in the 

“Stipulation for Dismissal With Order and Judgment of 

Dismissal,” filed on July 13, 2021, whereby the parties agreed 

that the purpose of the dismissal was to save litigation costs and 

that parties were to bear their owns costs and attorney’s fees.

Both sides gave up something of value to end the litigation, and

thus, “a party cannot later claim [it] received a favorable 

termination. [Citation.] It is not necessary to analyze the 

particular circumstances of the settlement or to examine the 

motivations of the parties—a negotiated settlement not only 

creates an ambiguity as to the merits of the underlying action, it 

is entirely inconsistent with bringing a further lawsuit for 

malicious prosecution. [Citation.]” (Ferreira v. Gray, Cary, Ware 

& Freidenrich (2001) 87 Cal.App.4th 409, 412-414.)

On this record, appellants failed to carry their burden of 

establishing a probability of success on the element of a favorable 

termination. Accordingly, the trial court properly granted the 

anti-SLAPP motions and struck the malicious prosecution claim.
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DISPOSITION

The order granting the anti-SLAPP motion is affirmed.

Respondents are entitled to recover their reasonable costs on 

appeal in this matter. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

NOT TO BE PUBLISHED.

LEE, J.

We concur:

MOOR, Acting P. J. KIM, J.

 Judge of the San Bernardino Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.