Filed 9/3/14 Shankar v. Chu 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 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 This opinion has not been certified for publication 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 FIVE 

ARVIND SHANKAR, M.D., 

 Plaintiff and Appellant, 

 v. 

JEFFREY CHU, M.D., 

 Defendant and Respondent. 

 B248413 

 (Los Angeles County 

 Super. Ct. No. SC119634) 

APPEAL from an order of the Superior Court of Los Angeles County, Craig 

Karlan, Judge. Affirmed. 

 Arvind Shankar, in Pro. Per. 

 Moon and Yang, Kane Moon for Defendant and Respondent. 
2 

 Plaintiff Arvind Shankar, M.D. appeals the trial court’s order granting the antiSLAPP motion filed by defendant Jeffrey Chu, M.D. with respect to a cause of action for 

malicious prosecution. We conclude that plaintiff failed to establish a likelihood of 

prevailing on this claim, due to insufficient evidence to support his allegation that the 

underlying lawsuit between the parties terminated in his favor. We therefore affirm the 

order. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Chu Sarang Medical Inc., a professional medical corporation (the “Corporation”), 

was incorporated in January 2004 by Simon Hong. Hong hired Jeffrey Chu, M.D. as the 

Corporation’s president. 

 On March 15, 2005, Arvind Shankar, M.D. and the Corporation entered into an 

employment agreement; thereafter Shankar was the Corporation’s sole treating physician. 

 In April 2006, the Corporation ceased business activities; it was later dissolved. In 

April 2007, Shankar filed a claim for unpaid wages with the Labor Commissioner 

purportedly due him from the Corporation. The Labor Commissioner awarded Shankar 

approximately $50,000 on his wage claim, which award was then entered as a judgment 

against the Corporation. Chu was subsequently added as a judgment debtor, based on a 

provision of Shankar’s employment agreement. Shankar filed an acknowledgment of 

satisfaction of judgment on November 29, 2010, releasing Chu in full from the judgment. 

 The litigation underlying the current lawsuit was instituted in September 2007, 

when Chu and the Corporation sued Shankar, among others, alleging that the failure of 

the Corporation was due to the defendants’ conduct. Shankar cross-complained against 

Chu and the Corporation for fraud, breach of contract, breach of fiduciary duty, wrongful 

termination of employment and unfair business practices. 

 The Corporation, represented by attorney Robert Moest, served a Code of Civil 

Procedure section 998 Offer to Compromise on Shankar on or about September 24, 2012, 

offering to settle all claims between them for $1.5 million. Shankar accepted the offer on 

September 28, 2012. On September 26, 2012, after the offer was served but before it was 
3 

accepted, the Corporation voluntarily dismissed with prejudice its complaint against 

Shankar. A judgment in favor of Shankar and against the Corporation was entered on 

October 11, 2012, in the amount of $1.5 million pursuant to the offer to compromise. On 

December 6, 2012, Shankar filed a motion for leave to add Chu as a judgment debtor on 

the judgment. That motion was granted on March 27, 2013. 

 Shankar, through his attorney Robert Moest (who had represented the Corporation 

in settling the claims of the Corporation and Shankar just months earlier), filed the instant 

action on January 4, 2013, alleging causes of action against Chu for fraud, fraudulent 

transfer, malicious prosecution and breach of a settlement agreement. Chu moved to 

strike the malicious prosecution cause of action based on Code of Civil Procedure1

section 425.16, the anti-SLAPP statute. The trial court granted the motion, holding that 

Shankar had failed to establish a probability of prevailing on the claim. Specifically, the 

trial court concluded that Shankar could not demonstrate that the underlying lawsuit had 

been terminated in his favor, a necessary element of a malicious prosecution action. 

Shankar timely appealed that ruling. 

DISCUSSION 

 A trial court’s order granting a special motion to strike under section 425.16 is 

reviewed de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) 

However, the trial court is deemed to have impliedly found “every fact necessary to 

support the order.” (Briggs v. Eden Council For Hope & Opportunity (1999) 19 Cal.4th 

1106, 1115, fn. 6.) 

 A motion to strike under section 425.16 is analyzed using a two-step process. 

First, the moving party must make a threshold showing that the challenged cause of 

action is one arising from a protected activity. (Equilon Enterprises v. Consumer Cause, 

Inc. (2002) 29 Cal.4th 53, 67.) If the court finds that such a showing has been made, the 

 

1

 Further statutory references are to the Code of Civil Procedure. 
4 

burden shifts to the non-moving party to demonstrate a probability of prevailing on the 

claim. (Ibid.; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) 

 Here, Chu clearly satisfied the first step of the analysis, for it is well-established 

that filing a lawsuit is an exercise of the constitutional right to petition, and thus a 

protected act under section 425.16. (Briggs v. Eden Council For Hope & Opportunity, 

supra, 19 Cal.4th 1106, 1115 [“the constitutional right to petition includes the basic act of 

filing litigation”]; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 

736 [“‘the Legislature’s intent consistently has been to protect all direct petitioning of 

governmental bodies . . . including . . . courts’”].)2

 We next turn to Shankar’s showing of the probability that he will prevail on his 

malicious prosecution claim. “[I]n order to establish a cause of action for malicious 

prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate ‘that the 

prior action (1) was commenced by or at the direction of the defendant and was pursued 

to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without 

probable cause [citations]; and (3) was initiated with malice [citations].’” (Sheldon Appel 

Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871; accord, Crowley v. Katleman (1994) 8 

Cal.4th 666, 676.) Here, the trial court determined that Shankar failed to demonstrate 

that the underlying litigation terminated in his favor, thus negating an element of the 

malicious prosecution cause of action. Thus, we limit our discussion to that element of 

the tort. 

 As this court explained in Robbins v. Blecher (1997) 52 Cal.App.4th 886: “‘“‘The 

theory underlying the requirement of favorable termination is that it tends to indicate the 

innocence of the accused, and coupled with the other elements of lack of probable cause 

and malice, establishes the tort [of malicious prosecution].’ [Citations.] [¶] It is not 

 

2

 Shankar maintains that Chu did not meet his initial burden of demonstrating that 

the filing of the lawsuit was protected activity, because he claims that Chu violated Penal 

Code section 182 by conspiring with his attorney “[f]alsely to move or maintain [a] suit, 

action or proceeding.” We agree with the trial court that Shankar presented no evidence 

to show that Chu’s filing and/or prosecuting the underlying action was illegal as a matter 

of law. 
5 

essential to maintenance of an action for malicious prosecution that the prior proceeding 

was favorably terminated following trial on the merits. However, termination must 

reflect on the merits of the underlying action. [¶] It is apparent ‘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.]’” (Id. at 

p. 893.) 

 “‘The key is whether the termination reflects on the underlying defendant’s 

innocence. If the resolution of the underlying litigation “leaves some doubt as to the 

defendant’s innocence or liability[, it] is not a favorable termination, and bars that party 

from bringing a malicious prosecution action against the underlying plaintiff.” [Citation.] 

“‘A termination [by dismissal] is favorable when it reflects “the opinion of someone, 

either the trial court or the prosecuting party, that the action lacked merit or if pursued 

would result in a decision in favor of the defendant.”’ [Citation.] [¶] . . . The focus is not 

on the malicious prosecution plaintiff’s opinion of his innocence, but on the opinion of 

the dismissing party.” [Citation.] “The test is whether or not the termination tends to 

indicate the innocence of the defendant or simply involves technical, procedural or other 

reasons that are not inconsistent with the defendant’s guilt.” [Citation.]’” (Robbins v. 

Blecher, supra, at p. 893.) 

 “‘A voluntary dismissal may be an implicit concession that the dismissing party 

cannot maintain the action and may constitute a decision on the merits. [Citations.] “It is 

not enough, however, 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.]” (Robbins v. Blecher, supra, at p. 893.) 

A dismissal resulting from negotiation, settlement or agreement is generally not deemed a 

favorable termination of the proceedings. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 
6 

782, 794, fn. 9.) “The purpose of a settlement is to avoid a determination on the merits. 

‘In such a case the dismissal reflects ambiguously on the merits of the action as it results 

from the joint action of the parties, thus leaving open the question of defendant’s guilt or 

innocence. (See Prosser, Law of Tort (4th ed. 1971) § 119, p. 840.’ [Citation.]” (Villa v. 

Cole (1992) 4 Cal.App.4th 1327, 1335-1336.) 

 Pursuant to the foregoing authority, the trial court ruled that the settlement of the 

claims of Shankar and the Corporation in the underlying action could not be deemed a 

termination of the litigation on the merits. Consequently, it concluded that Shankar had 

failed to demonstrate an essential element of his malicious prosecution claim, and granted 

Chu’s special motion to strike. 

 Shankar challenges this ruling on appeal. He relies on the fact that the 

Corporation dismissed its claims against Shankar before Shankar accepted the 

Corporation’s section 998 Offer to Compromise Shankar’s cross-complaint against the 

Corporation. Shankar argues that there was no section 998 settlement until the offer to 

compromise was accepted in accordance with its terms, and that the section 998 offer 

“explicitly required that it be accepted in writing.” Thus, he concludes, the Corporation’s 

complaint had already been dismissed (on September 26) when he accepted the section 

998 on September 28, and thus could not have been a part of the settlement. The 

argument is unavailing. 

 Both the Request for Dismissal of the Corporation’s complaint and the section 998 

Offer to Compromise were prepared by the Corporation’s counsel, Robert Moest, and 

dated September 24, 2012. The Offer to Compromise, which Shankar accepted in writing 

on September 28, 2012, stated: “Pursuant to C.C.P. § 998(b), Chu Sarang Medical, Inc. 

hereby offers to compromise all of the claims and cross-claims that have been asserted in 

this matter in the Complaint and Cross-Complaint by and between Plaintiff and CrossDefendant Chu Sarang Medical, Inc. and Defendant and Cross-Complainant Arvind 

Shankar, M.D. by allowing judgment to be entered in favor of Defendant and CrossComplainant Arvind Shankar, M.D. and against Plaintiff and Cross-Defendant Chu 

Sarang Medical, Inc. in the amount of $1,500,000 (one million five hundred thousand 
7 

dollars), with each of the aforesaid parties to bear its own costs and fees.” By accepting 

the Offer to Compromise, Shankar agreed to settle both the Corporation’s complaint 

against him as well as his cross-complaint against the Corporation. The fact that the 

Request for Dismissal of the Corporation’s complaint was entered by the court two days 

before Shankar accepted the Offer to Compromise is of no moment. Indeed, given the 

language of the Offer to Compromise, which by its terms resolved both the complaint and 

cross-complaint between the Corporation and Shankar, the Request for Dismissal was 

completely unnecessary. We reject Shankar’s assertion that the trial court erred in 

concluding that the Corporation’s dismissal of its complaint against Shankar prior to 

Shankar’s acceptance of the Offer to Compromise established that the termination of the 

Corporation’s litigation against Shankar was on the merits. 

 Because we affirm the trial court’s ruling that Shankar failed to demonstrate that 

the underlying lawsuit terminated in his favor, and thus affirm the grant of Chu’s special 

motion to strike, we do not address the evidence Shankar presented regarding the 

remaining elements of his malicious prosecution claim. We note that Shankar states in 

his brief on appeal that “the record from the court below demonstrates that the trial judge 

was disqualified from adjudicating the hearing on April 19 because of the appearance of 

bias, and therefore his ruling was void.” However, Shankar apparently did not seek to 

disqualify the trial judge, who accordingly did not rule on a disqualification motion. 

Consequently, there is no order or ruling for this court to review concerning any 

purported bias of the trial judge. Moreover, the record is devoid of any evidence of bias. 
8 

DISPOSITION 

 The order is affirmed. Chu is to recover his costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 MINK, J.

We concur: 

 TURNER, P.J. 

 MOSK, J. 

 

 



 Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.