Filed 10/10/13 Jensen v. Charon Solutions CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

PEACHES NONG JENSEN et al,
Plaintiffs and Appellants,

v.
CHARON SOLUTIONS, INC., et al.,
Defendants and Respondents. B240651 (c/w B244155)
(Los Angeles County Super. Ct. No. BC469884)

CHARON SOLUTIONS, INC., et al,
Cross-complainants and Appellants,

v.
PEACHES NONG JENSEN et al.,
Cross-defendants and Respondents.

APPEALS from orders of the Superior Co urt of Los Angeles County. Kevin C. Brazile, Judge. Affirmed.
Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew for Plaintiffs and Appellants, Cross-defendants and Responden ts Peaches Nong Jensen and Peachtree Financial Corporation.2 Henry J. Josefsberg for Defendants a nd Respondents, Cross-complainants and Appellants Charon Solutions, In c. and Perry L. Segal. Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and Michael W. Feenberg for Defendants and Respondents Marcin Lambirth, LLP, John B. Marcin, Timothy Lambirth, Regina Ashkinadze, and Grah am A. Bentley; Nemecek & Cole and David B. Owen for Defendants and Respondents Justin Shrenger a nd the Law Offices of Justin J. Shrenger.
Law Offices of Mark Mu rad and Mark Murad for Cross-complainants and Appellants Marcin Lambirth, LLP, John B. Marcin, Timothy Lambirth, Regina Ashkinadze, Graham Bentley and Defe ndant and Respondent Lisa Miller.
* * * * * *

Following a failed real estate transacti on, Charon Solutions Inc. (Charon), owned by Perry Leonard Segal (Segal), sued Peachtree Financial Corp oration (Peachtree) and its owner Peaches Nong Jensen (Jensen), who in turn cross-complained. After neither side prevailed, they sued each othe r for malicious prosecution. Peachtree and Jensen also
sued a number of atto rneys, including the Law Offices of Justin J, Schrenger, Justin J. Schrenger, Marcin Lambirth LLP, John B. Marcin, Timothy Lambirth, Regina Ashkinadze, Graham Bentley and Lisa Miller (sometimes collectivel y Attorneys). In turn, the Attorneys an d Charon and Segal on the one hand , and Peachtree and Jensen on the other, filed special motions to strike the malicious prosecution complaints pursuant to
Code of Civil Procedure section 425.16. 1 With the exception of two causes of action initially alleged by Charon, the trial court gran ted the motions to strike and granted in part the Attorneys’ motions for attorney fee awards. We affirm. The trial court properly granted the Attorneys’ and Charon’s and Segal’s motions to strike. Peachtree a nd Jensen failed to meet their burden to demonstrate a probability of prevailing on essential elements of their malicious

1 Unless otherwise indicated, all further stat utory references are to the Code of Civil Procedure.3 prosecution cause of action. Peachtree fa iled to establish it received a favorable termination, Jensen failed to establish that Charon and Segal lacked probable cause to bring and maintain the underlyi ng action, and both parties fa iled to show that Charon’s first attorney acted with malice. The trial court also prop erly declined to award attorney fees for an attorney w ho was “of counsel” to the firm he represented. Finally, the trial court properly granted Peachtree’s and Jensen ’s motion to strike, as Charon and Segal
failed to meet their burden to show Peac htree lacked probable cause to bring and maintain its cross-complaint.
FACTUAL AND PROCED URAL BACKGROUND The Parties and the Proposed Real Estate Venture. Segal was the 100 percent owner of Ch aron, while Jensen was the 100 percent owner of Peachtree. In Sept ember 1999, Jensen purchased real property located at
22393 Cass Avenue in Woodland Hills (Cass property) from Sc ott Silver. As early as 1999, she expressed to Segal an in terest in splitting the Cass property. In January 2000, Charon and Peachtree en tered into an operating agreement for the management of P&P Holdings, LLC (P&P Operating Agreement ). They were the only members of P&P Holdings (P&P) and each held a 50 percent inte rest. Neither Segal nor Jensen were parties to the P&P Operating Ag reement or held an interest in P&P. The stated purpose of P&P was to invest in real property. Segal and Jensen verbally agreed
their intent was to seek a lot split of the Cass property for the purpose of transferring ownership of a portion of the lot to P&P, having P&P develop the new lot with a luxury residence and selling the residence for the bene fit of P&P. Jensen applied for a lot split in June 2002, and in 2003, th e City of Los Angeles tentat ively approved the lot split, issuing a March 2004 decision date. In March 2004, Jensen discovered defects in the Cass property that Silver had not disclosed. After she informed Segal of the de fects, he asked her not to initiate an action against Silver, as it might jeopardize the lot split. Nonetheless, in itially unbeknownst to Segal, Jensen filed suit against Silver (Silv er action), and Silver cross-complained and4 recorded a lis pendens against the Cass propert y. Silver’s claims were bifurcated and
tried in December 2005. Also in December 2005, pending final argum ent in the Silver action, Charon gave written notice of its withdrawal from P&P (w ithdrawal letter). Charon, through Segal, wrote it had learned Jensen intentionally failed to disclose material information and gave false testimony in the Silver action. It a ccused Jensen of failing to contribute to and obstructing P&P’s venture, taking out a $2 00,000 line of credit on the Cass property resulting in a lien being placed on it and secretly undertaking the Silver action contrary to Segal’s advice. It asked for a meeting with Jensen and counsel and sought the disclosure of specified documents, advising that it would se ek to intervene in th e Silver action if it did not receive suitable responses to its requests. As a result of Jensen’s conduct, as well as her failure to acknowledge P&P’s existe nce during her trial te stimony, Charon gave notification of its withdrawal, returned a number of P&P related items and demanded
reimbursement of its P&P investment. The lette r added: “Further, you are advised that I will be seeking damages in the amount of $300 ,000 for lost profits and estimated punitive damages in the amount of $1,200,000 (that fi gure may rise as my investigation uncovers more information). Further, I re serve the right to refer the case to the Department of Real Estate, but will refrain from doing so at this ti me to give you an op portunity to cure.” Consistent with the withdrawal letter, Charon, represented by Segal, moved to
intervene in the Silver action. The trial court denied the motion, noting that Segal could not appear in propria persona on behalf of a corporation. Thereafter, the trial court issued
a statement of decision in the Silver acti on, ruling in favor of Jensen on Silver’s
rescission claims. In March 2006, Segal signed a notice of resignation, completing Charon’s 90-day notice of withdrawal period from P&P. The Underlying Fraud Action. In December 2008, Charon, represented by the Law Offices of Justin J. Shrenger and attorney Justin Schren ger (sometimes collectively Schrenger), filed a complaint against Peachtree, Jensen and he r husband Carl Jensen (Carl) alleging causes of action for5 fraud, breach of fiduciary duty, conversion , unjust enrichment and declaratory relief (underlying fraud action). Peach tree, Jensen and Carl demurre d to the complaint. The
trial court sustained the demurrer with leave to amend as to Peachtree and Carl, overruled
the demurrer as to Jensen on the first throu gh fourth causes of action, and sustained the
demurrer without leave to amend as to Jensen on the fifth and sixth causes of action.
Peachtree and Jensen also filed a cross- complaint alleging breach of fiduciary duty, negligence and fraud. After the trial court sustained a demurrer without leave to amend the breach of fiduciary duty cause of action against Segal and with leave to amend all other claims, Peachtree and Jensen filed a first amended cross-complaint alleging claims for breach of contract, negligence and declaratory relief against Charon and Segal, breach of fiduciary duty agai nst Charon and fraud against Se gal. Thereafter, the trial
court sustained a demurrer without leave to amend as to all causes of action except breach of contract against Char on and entered a partial judgment of dismissal as to Segal. In April 2009, now represented by Marc in Lambirth LLP an d attorney Timothy Lambirth, Charon filed a first amended complaint against Carl and Jensen only, alleging causes of action for fraud, breach of fiduciary duty and conversion. Given that Peachtree
had not been named in the fi rst amended complaint, the tr ial court entered a partial judgment of dismissal in favor of Peachtr ee. Marcin Lambirth associates including Regina Ashkinadze and Graham Bentley worked on the matter. 2 As “of counsel” to Marcin Lambirth, attorn ey Lisa Miller assisted in prepar ing the matter for trial and acted
as second chair at trial. Jensen and Carl moved for summary judgment and alternatively for summary adjudication. In a May 2010 order, the tr ial court denied their motion for summary judgment, but granted summary ad judication in favor of Carl. Also in May 2010, Charon dismissed Carl from the underlying fraud action with prejudice. The trial court denied a subsequent motion for summary judgment, br ought on the basis that the statute of

2 On occasion we refer to this group of a ttorneys as the Marcin Lambirth attorneys.6 limitations barred Charon’s claims. It likew ise denied Charon’s motion for summary judgment on the cr oss-complaint. In September 2010, trial commenced on the complaint’s and cross-complaint’s remaining claims in the underlying fraud action. At the conclusion of Charon’s case, the
trial court denied Jensen’s mo tion for nonsuit. The jury rendered a special verdict in favor of Jensen on Charon’s complaint an d in favor of Char on on Jensen’s crosscomplaint. Peachtree’s and Jensen’s Malicious Prosecution Complaint and Special
Motions to Strike. In September 2011, Peachtree and Jens en filed a complaint for malicious prosecution against Charon and Segal, and also against the Attorneys. They alleged the underlying fraud action had been instituted without pr obable cause and with malice. Attorneys’ special motion to strike. The Attorneys filed special motions to strike the malicious prosecution complaint. In support of their motions, they offered their own declar ations and trial transcript excerpts, and sought judicial notice of plea dings, motions and orders in the underlying fraud action. Peachtree and Jensen opposed th e motions. The trial court denied their ex parte application to file an oversized op position brief. In support of their opposition, they filed a “master list” to which they attached a num ber of documents, including pleadings, orders, transcripts, deposition exce rpts, correspondence and e-mails. Jensen also submitted an over 100-page declaration and Carl an over 50-page declaration. They also filed evidentiary objections. Together w ith their replies, the Attorneys objected to the length of Jensen’s opposition papers and filed evidentiary objections. The trial court heard the Attorneys’ moti ons on January 18, 2012 and thereafter entered orders that fully incorporated by reference its tentative ruling to grant the motions. Preliminarily addressing procedural matters, the trial court acknowledged that Peachtree and Jensen filed opposition papers that exceeded the pa ge limits set by the court. Though it identified Peachtree’s and Je nsen’s failure to comp ly with the California
Rules of Court as an alternative basis for granting the motions, it further indicated that7 because of the nature of th e matter and the ultimate dis position it would consider all opposition papers. With resp ect to evidentiary rulings, the trial court’s order provided that its “ruling is set forth on page 8 of the Court’s Final Ruling attached hereto.” Although the referenced page 8 is omitted fr om Peachtree’s and Je nsen’s appendix on appeal, their counsel acknowled ged during the hearing “that Your Honor has ruled on all evidentiary objections.” As part of its orde r, the trial court sustained all but one of the Attorneys’ objections and overruled all of Peachtree’s and Jensen’s objections. Addressing the merits of the motions, the trial court ruled the Attorneys met their
burden to show the cause of action for ma licious prosecution arose from protected activity. It further found that Peachtree c ould not meet its burden to show a probability of success on the merits, as it filed its claim more than one year after it was dismissed from the underlying fraud action, and therefor e its cause of action was barred by the oneyear limitations period contained in section 340.6. As to Jensen, it ruled she could not demonstrate a probability of success on the merits as the evidence sh owed neither a lack of probable cause nor malice on the part of the Attorneys. More spec ifically, the denial
of her motion for nonsuit established that th e causes of action at trial were objectively tenable. With respect to the causes of ac tion for conversion, unjust enrichment and declaratory relief that were disposed of befo re trial, Jensen failed to submit admissible evidence establishing the Atto rneys acted with malice. Charon’s and Segal’s special motion to strike. Charon and Segal likewise filed a special motion to strike, together with a demurrer. They sought judicial notice of plea dings, motions, orders and transcripts in the underlying fraud action. Peachtr ee and Jensen opposed the mo tion, arguing that Charon’s and Segal’s conduct was illegal as a matter of law and therefore not protected, and that they established a probability of prevailing on all el ements of their malicious prosecution
cause of action. Jensen and Carl submitted lengthy declarations vi rtually identical to those submitted in opposition to the Attorneys’ motions. Peachtree and Jensen also filed evidentiary objections. In turn , Charon and Segal replied and filed evidentiary objections
to the declarations.8 On March 28, 2012, the trial court heard Charon’s and Segal’s motion to strike. It granted the motion as to Peacht ree and denied the motion in pa rt as to Jensen. It ruled Charon and Segal met their in itial burden to show that th e conduct alleged arose from protected activity. With resp ect to the second prong, th e trial court concluded that
Peachtree could not establish a probability of prevailing becaus e it failed to establish that
its dismissal from the action was a favorable termination. On the other hand, it ruled Jensen had met her burden to show a probability of prevailing with respect to the causes of action for unjust enrichment and declarator y relief that were eliminated from the action
via a demurrer sustained withou t leave to amend. The tria l court determined that the
denial of Jensen’s motion for nonsuit demons trated she could not establish a lack of probable cause as to the remaining ca uses of action that went to trial. At the hearing, the trial court stated that written evidentiary rulings would be forthcoming. The next day, the trial court is sued a separate order in which it sustained in part and overruled in part Charon’s and Segal’s evidentiary objections to Carl’s declaration. Peachtree and Jensen appealed from the orders granting the motions to
strike. Motions for attorney fees

. Shrenger, the Marcin Lamb irth attorneys and Miller moved for an award of attorney fees pursuant to section 425.16, subdivision (c)(1). Peachtree and Jensen opposed the motion, arguing in part that fe es were not available because the Marcin Lambirth attorneys were repres ented by one of their own empl oyees. In support of their opposition, they submitted evidence designed to show that counsel for the Marcin Lambirth attorneys, Mark Mu rad (Murad), was associated w ith the firm. The Marcin Lambirth attorneys and Miller objected to Peachtree’s and Je nsen’s eviden ce and argued
that Murad was a former associ ate, currently operating as an independent contractor and “of counsel” to the firm. They offered evidence designed to demonstrate that relationship. The trial court granted Shrenger’s and th e Marcin Lambirth attorneys’ motions, and denied Miller’s motion. With respect to Miller, the trial court reasoned the evidence9 showed she and her atto rney Murad were both of counse l at Marcin Lambirth, and there
was insufficient evidence to show she incurred attorney fees in bringing the motion. The
trial court reduced the amount of the fees re quested by the Marcin Lambirth attorneys, declining to award any amount for work pe rformed by Murad. The Marcin Lambirth attorneys appealed. Charon’s and Segal’s Malicious Pros ecution Cross-Complaint and Special
Motion to Strike. In May 2012, Charon and Segal filed a cr oss-complaint alleging a single cause of action for malicious prosecution on the basis of Peachtree’s and Jensen’s filing the crosscomplaint and first amended cr oss-complaint in the underlyi ng fraud action. In turn, Peachtree and Jensen filed a special motion to strike. They argued Charon and Segal could not establish a probability of prevailing because, among other re asons, the denial of summary judgment demonstrated probable cause and they relied on advice of counsel. In support of the motion, Jensen submitted her own declaration and in corporated her prior
declarations. She attached as exhibits certain pleadings in the underlying fraud action. Charon and Segal opposed the motion, asserti ng that Peachtree’s and Jensen’s arguments were premised on their concealment of ev idence and fraud. In support of their opposition, they submitted Segal’s declarati on, pleadings, motions , orders, deposition excerpts and a number of documents relating to the Cass property. They also filed evidentiary objections to Jensen’s declarati on. Peachtree and Jens en replied and filed evidentiary objections. Following a July 20 12 hearing, the trial court grante d the motion to strike. Again adopting its tentative ruling as its final order, the trial court ruled Charon and Segal failed
to meet their burden to show a probability of prevailing on any claims. The trial court overruled the evidentiary objections to Jensen’s declara tion, and sustained in part and overruled in part the objections to Segal’s declaration. Charon and Segal appealed. On our own motion, we consolidated their appeal
with those of Peachtree and Jensen and the Marcin Lamb irth attorneys.10 DISCUSSION We address the four challenged rulings: The trial court’s granting the Attorneys’ motion to strike, granting in part Charon’s a nd Segal’s motion to strike, denying in part the Marcin Lambirth attorney s’ motion for attorney fees and granting Peachtree’s and
Jensen’s motion to strike. I. Applicable Law Govern ing Special Motions to Strike and Standards of
Review. A special motion to strike under secti on 425.16, also known as the “anti-SLAPP” 3 statute, allows a defendant to seek early di smissal of a lawsuit involving 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 speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) A defendant bringing a special motion to strike a complaint must make “a threshold showing that the challenged caus e of action is one ar ising from protected activity” as defined in section 425.16, subdivision (b)(1). ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “‘A defendant meets this burden by demonstrating that the act unde rlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation].” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “‘If the defendant makes that showing, the bu rden shifts to the pl aintiff to establish a probability he or she will prev ail on the claim at trial, i. e., to proffer a prima facie showing of facts supporting a judgment in the plaintiff’s favor.’ [Citation.]” ( Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613; see also Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App. 4th 449, 456 [the
defendant bears the burden on the threshold issu e, while the plaintiff bears the burden on the second issue].) “In assessing the proba bility of prevailing, a court looks to the

3 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” ( Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 7 28, 732, fn. 1.)11 evidence that would be presen ted at trial, similar to re viewing a motion for summary judgment; a plaintiff cannot si mply rely on its pleadings, even if verified, but must adduce competent, ad missible evidence. [Citations.]” ( Roberts v. Los Angeles County Bar Assn., supra, at pp. 613–614; accord, Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346 [t he plaintiff’s showing “must cons ist of evidence that would be admissible at trial”]; Evans v. Unkow (1995) 38 Cal.App.4t h 1490, 1497–1498 [an
averment on information and belie f is insufficient to show a probability of prevailing].)
“The court also considers the defendant’s o pposing evidence, but onl y to determine if it defeats the plaintiff’s showing as a matter of law. [Citation.] That is, the court does not weigh the evidence or ma ke credibility determinations. [Citations.]” ( Kashian v.
Harriman (2002) 98 Cal.App.4th 892, 906.) We review de novo the lega l question of whether the special motion to strike was properly granted, conducting an inde pendent review of the record. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325 ( Flatley ); Bleavins v. Demarest (2011) 196 Cal. App.4th 1533, 1539; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1016.) In other words, “our review
is conducted in the same manner as the trial court in considering an anti-SLAPP motion.” ( Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.) We review the trial court’s ruling and not its rationale. (E.g., City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 80.) We review evidentiary rulings made in c onnection with a special motion to strike for an abuse of discretion. ( Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1348, fn. 3; Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.)
“‘A trial court’s exercise of discretion in ad mitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a mani fest miscarriage of justice . . . .’ [Citations.]” ( San Lorenzo Valley Community Advocates for Responsible
Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419.) But in order to demonstrate an abuse of discretion, an appellant must affirmatively challenge the evidentiary rulings on appeal. In other words, the asserted12 erroneous evidentiary rulings mu st be identified “as a distinct assignment of error” and be supported by analysis and citation to authority. ( Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.) When an appellant fails to do so , “any issues concerning the
correctness of the trial court’ s evidentiary rulings have be en waived. [Citations.]” ( Lopez v. Baca (2002) 98 Cal.App.4t h 1008, 1014–1015.) II. The Trial Court Properly Granted the Attorneys’ and Charon’s and Segal’s Special Motions to Strike. In separate orders after separate he arings, the trial court first granted the Attorneys’ special motion to st rike and thereafter, with one exception, granted Charon’s and Segal’s special motion to strike. Both motions addressed Peachtree’s and Jensen’s complaint alleging a single cause of action fo r malicious prosecution. And in both orders, the trial court ruled that the moving parties demonstrated the cause of action arose from protected activity and that Peachtree and Jensen failed to demonstrate a probability of prevailing. We find no error.
A. Arising from Protected Activity. In their malicious prosecution complaint, Peachtree and Jensen alleged that the underlying fraud action was pros ecuted without probable cause and with malice. As explained in Daniels v. Robbins (2010) 182 Cal.App.4th 204, 2 15: “The plain language of the anti-SLAPP statute dictates that every claim of malicious pros ecution is a cause of action arising from protected activity becaus e every such claim necessarily depends upon written and oral statements in a prio r judicial proceeding.” (Accord, Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 734–735 [“ by its terms, section 425.16 potentially may apply to every malicious pr osecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch”]; Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047 [“malicious prosecution action arises from acts in furtherance of defendants’ right of petition or free speech”].) We agree with the trial court that the Attorneys and Charon and Segal satisfied their thres hold burden to show the complaint arose from protecte d activity, as the allegations related to the filing of an action and their right to petition.13 We reject Peachtree’s and Jensen’s argumen t that their allegations concerning the withdrawal letter established the moving par ties had engaged in unlawful or criminal activity that would not qualify as protect ed activity under se ction 425.16. In Flatley,

supra, 39 Cal.4th at page 305, th e court held communications that amounted to criminal extortion were not protected activity under th e anti-SLAPP statute. There, the defendant attorney sent a letter to an en tertainer threatening to publicly accuse him of rape unless he “settled” by paying a sum of m oney to assure silence. ( Id . at pp. 308–309, 329.) Relying
on Penal Code section 518’s de finition of extortion as “‘ the obtaining of property from another, with his consent . . . induced by a wr ongful use of force or fear,’” the Supreme
Court deemed the letter “criminal ex tortion as a matter of law.” ( Flatley, supra, at pp. 326, 330.) The Court held “that where a defendant brings a motion to strike under section 425.16 based on a claim that the pl aintiff’s action arises from activity by the
defendant in furtherance of th e defendant’s exercise of prot ected speech or petition rights, but either the defendant concedes, or the ev idence conclusively es tablishes, that the assertedly protected speech or petition activ ity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” ( Id. at p. 320.)
Peachtree and Jensen maintain that Charon ’s statements in the withdrawal letter
constituted extortion as a matter of law. They alleged Charon and Segal “threatened JENSEN that if she would not pay them a sum of money, then they would seek to
intervene in the Silver Action” and further alleged Charon and Segal threatened Peachtree and Jensen “that if they did not ‘cure’ what they alleged to be ‘damages’ sustained as the alleged result of acts by JENSEN in connec tion with the Cass Property—by JENSEN or PEACHTREE paying to SEGAL and/or CHARON SOLUTIONS a sum of money [ i.e. , $300,000]—that they would not only sue JENSEN and/or PEACHTREE for more than a million dollars” and would also complain ab out Jensen’s unethical conduct “to the Department of Real Estate.” In the w ithdrawal letter—which Peachtree and Jensen offered as an exhibit in opposition to the motions to strike—Charon asked for a settlement meeting and offered to pay for Peachtree’s counse l’s time, and stated that it14 would seek to intervene in th e event a meeting did not take place or it did not receive suitable responses to its inquiries. After outlining the reasons for its withdrawal from P&P and requesting reimbursement of its investment in P&P—then valued at approximately $22,000—Charon wrote: “Furth er, you are advised that I will be seeking damages in the amount of $300,000 for lost profits and estimated punitive damages in the amount of $1,200,000 (that figure may rise as my investigation uncovers more information). Further, I reserve the right to refer the case to the Department of Real Estate, but will refrain from doing so at this ti me to give you an op portunity to cure.” Lest every prelitigation settlement demand be deemed extortion, the Flatley Court
cautioned that its “conclusi on that Mauro’s communicati ons constituted criminal
extortion as a matter of law are based on the specific and extreme circumstances of this
case. Extortion is the threat to accuse the vi ctim of a crime or ‘expose, or impute to him . . . any deformity, disgrace or crime’ (Pen . Code, § 519) accompanied by a demand for payment to prevent th e accusation, exposure, or imputation from being made. Thus, our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that ma y include threats to file a lawsuit, report criminal behavior to authorities or public ize allegations of wrongdoing, necessarily constitute extortion.” ( Flatley, supra, 39 Cal.4th at p. 332, fn. 16.) Accordingly, cases following Flatley have concluded that prelitigation th reats similar to those made in the withdrawal letter are protect ed activity. (See, e.g., Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4t h 1467, 1481 [landlord’s prelitig ation threats to tenants, including demanding rent above lease am ount, commencing action after consultation with a federal judge and warnin g they would never be able to rent another apartment in the area, deemed communications protected by § 425.16]; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36–37 [attorney ’s voicemail message to client’s sister accusing her of conspiracy to defraud and threatening “to take ‘appropriate action’” held protected activity made in anticipation of litigation which the attorney “‘ contemplated in good faith and under serious consideration’”].)15 Here, the Attorneys, Char on and Segal have not conc eded, nor did any evidence conclusively establish, that their protecte d activities constituted illegal extortion. The
withdrawal letter is unlike the demand letter in Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, 807, which th e court held constituted criminal extortion as a matter of law outside the protection of the anti-SLAPP statute. In relevant part, the defendant attorney’s demand letter in that case stated: “‘As you are awar e, I have been retained to represent Media Print & Copy (“Media”). We are in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client. . . . To date we have uncove red damages exceeding $ 75,000, not including interest applied thereto, punitive damages and attorneys’ fees. If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to procee d with filing a legal action against him, as well as reporting him to the California Atto rney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau,
as well as to customers and vendors with whom he may be perpetrating the same fraud upon [ sic ].’” ( Id . at p. 802.) The court found that th e attorneys’ threat to report criminal conduct to applicable enforcement agencies and others, coupled with th e demand for the payment of money, co nstituted extortion as a matter of law. ( Id. at p. 806.) Here, in contrast, the withdrawal letter threatened to seek damages through litigation; though Charon reserved the right to re port Jensen’s conduct, it did not threaten to report Jensen’s conduct unless she paid a sum of money. In any event, even if we could construe the withdrawal letter as being extortionate,
the letter did not form the ba sis for Peachtree’s and Jens en’s malicious prosecution complaint. Rather, the co mplaint was based on the fili ng and prosecution of the complaint and first amended complaint in th e underlying fraud action. “In general, whether a cause of action is subject to a mo tion to strike under the SLAPP statute turns on whether the gravamen of the cause of action targets protected activity.” ( Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550.) “[W]here the defendant shows that the gravamen of a cause of action is based on16 nonincidental protected activity as well as non protected activity, it has satisfied the first prong of the SLAPP analysis.” ( Id. at p. 1551, fn. 7; accord, M.F. Farming Co. v. Couch Distributing Co., Inc. (2012) 207 Cal.App.4th 180, 197 [“ Since the protected activity is not merely incidental, the first prong is satisfi ed and the burden shifts to plaintiff MF to show a probability of success on the merits”].) Because the underlying fraud action was
far more than incidental to Peachtree’s and Jensen’s malicious prosecution complaint, we conclude the Attorneys, Charon and Segal met their burden to establish the complaint arose from protected activity. B. Probability of Success on the Merits. Once the moving parties esta blished that Peachtree’s and Jensen’s malicious prosecution complaint arose out of activity pr otected by the anti-SLAPP law, the burden shifted to them to demonstrate a probability they could prevail on the merits of their complaint. To establish a pr obability of prevailing, “the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficien t prima facie showing of facts to sustain a favorable judgment if the evidence submitte d by the plaintiff is credited.’ [Citations.]” ( Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) In order to show a probab ility of prevailing on their malicious prosecution claim, Peachtree and Jensen were required to show the underlying fraud action was (1) initiated by or at the direction of the party that is the defendant in the malicious prosecution action, (2) legally terminated in favor of the party that is the plaintiff in the malicious prosecution action, (3) initiate d without probable cause, and (4) initiated with malice. ( Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.) To defeat the special motions to strike, Peachtree and Jensen were required to establish a probability of success as to all elements of their claim. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875; JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1527; Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1058.) In other words, if the party opposing a special motion to strike is unable to establish a17 probability of prevailing on ev en one element, the trial co urt must grant the motion to strike, as it did here.
1. Peachtree failed to show it r eceived a favorable termination on
the merits. Charon’s initial complaint in the underlyi ng fraud action alleged several causes of action against both Peachtree an d Jensen. They demurred to each cause of action on the grounds Charon failed to plead facts sufficient to state a cause of action and each cause of
action was uncertain. The trial court overru led the demurrer to the extent it argued the complaint was barred by the statute of limit ations and, without further specificity,
sustained the demurrer with leave to amend as to Peachtree. Charon’s first amended complaint did not name Peachtree as a defe ndant. Consequently, in January 2010, the trial court dismissed the complaint with prej udice as to Peachtree and entered a partial judgment of dismissal in its favor. In connection with Charon’s and Segal’s special motion to strike, the trial court ruled Peachtre e failed to establish its dismissal from the underlying fraud actio n constituted a favorable te rmination on the merits. 4
“In order for the termination of a lawsu it to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit. . . . Where a proceeding is terminated other than on the merits, the reas ons underlying the termination
must be examined to see if the termination re flects the opinion of e ither the court or the prosecuting party that the action woul d not succeed. [Citation.]” ( Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814.) “If the resolution of the under lying litigation ‘leaves
some doubt as to the defendant ’s innocence or liability[, it] is not a favorable termination,

4 As to the Attorneys, the trial court fo und Peachtree’s malici ous prosecution claim accrued in January 2010 and ru led Peachtree could not prev ail because the applicable one-year statute of limitations barred its claim. Because we find the lack of favorable termination dispositive as to all moving parties, we need not address this alternative reason for concluding Peachtree could not demonstrat e a probability of prevailing.18 and bars that party from bri nging a malicious prosecution action against the underlying plaintiff.’ [Citation.]” ( Eells v. Rosenblum (1995) 36 Cal.App. 4th 1848, 1855.) Though Peachtree maintains th at a voluntary dismissal is, without exception, a
favorable termination on the merits , the law is to the contrary. 5 Addressing whether a voluntary dismissal satisfies the first element of a malicious prosecution claim, the court
in Robbins v. Blecher (1997) 52 Cal.App.4th 886, 893–8 94, explained: “‘A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a deci sion on the merits. [Citati ons.] “It is not enough, however, merely to show that the proceeding was dismissed.” [Citation.] The reasons
for the dismissal of the action must be exam ined to determine wh ether the termination reflected on the merits.’ [Citations.] A volunt ary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a
favorable termination because it does not re flect on the substantive merits of the underlying claim. [Citations.]” (See also Contemporary Services Corp. v. Staff Pro Inc.,

supra, 152 Cal.App.4th at pp. 1056–1057 [voluntary dismis sal to avoid costly litigation not a favorable termination on the merits]; Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337, 344 [voluntary dismissal to avoid cost and inconvenience of second trial not a favorable termination on the merits].) Here, Peachtree did not meet its burden to show that its omission from the first amended complaint reflected either the trial court’s, the Attorneys’ or Charon’s decision
the action would not be succe ssful. The trial court sustained Peachtree’s demurrer with leave to amend, thereby leavin g open the possibility that Charon’s claim could succeed.
There was no evidence—includi ng in Jensen’s declarati on submitted in opposition to Charon’s and Segal’s special motion to stri ke—to show that the Attorneys or Charon

5 The cases Peachtree cites are not even rele vant to let alone supportive of its point. (See Kyle v. Carmon (1999) 71 Cal.App.4th 901, 909 [p laintiff may voluntarily dismiss a complaint following an anti-SLAPP motion]; Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776 [defendant has the right to seek costs after a dismissal]; Roybal v. University Ford (1989) 207 Cal.App.3d 1080, 1085 [dismiss al with prejudice of municipal court action operated as res judicata barring superior court action].)19 failed to include Peachtree in the first amen ded complaint because th ey opined the claim would not succeed. We agree with the trial court “[t]he eviden ce presented is insufficient
to determine that the claims against Peachtree Financial and the decision to remove
Plaintiff as a defendant in th e underlying litigation were base d on the merits.” For this reason, Peachtree’s reliance on Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385 is misplaced. There, the finding of favorable term ination was based on evidence reasonably sugge sting the plaintiff’s dismissal occurred because the claims lacked merit; the eviden ce included the plaintiff’s failure to appear for two depositions and discovery responses indicati ng she sustained no damage. ( Id . at pp. 1400–1401.)
Because Peachtree failed to make such an evidentia ry showing, it coul d not demonstrate a probability of prevailing on on e of the essential elements of its malicious prosecution
claim. 6
2. Jensen failed to show the Atto rneys and Charon lacked probable cause to file and litigate th e first amended complaint. With respect to Jensen, we find dispos itive the evidence sh owing probable cause to initiate and prosecute the un derlying fraud action. For that reason, we will address the element of probable cause fi rst and exclusively. (See Antounian v. Louis Vuitton
Malletier (2010) 189 Cal.App.4th 438, 448 [resolv ing probable cause element first for purposes of anti-SLAPP motion].) The centra l element of probable cause is “a legal question to be resolved by the court.” ( Plumley v. Mockett, supra, 164 Cal.App.4th at p. 1047.)
A defendant is not liable for malicious prosecution if it had probable cause to initiate and maintain the prior lawsuit. Th is element requires the court to make an objective determination as to the reasonablene ss of the defendant’s conduct to ascertain whether, on the facts known to the defe ndant, institution of the prior action was

6 In light of our conclusi on Peachtree did not show a probability of success on the favorable termination element of malicious pr osecution, we need not reach the parties’ arguments on the probable cause and malice elements of the cause of action, their other arguments related to favorable termination or their statute of limitations argument.20 objectively legally tenable. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 ( Sheldon Appel ).) “A litigant will lack probable cause for his action either if he relies upon facts
which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable u nder the facts known to him.” ( Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164–165.) “Only th ose actions that any reasonable attorney would agree are totally and completely withou t merit may form the basis for a malicious prosecution suit.” ( Zamos v. Stroud (2004) 32 Cal.4th 958, 970.) Probable cause must exist for every cause of action adva nced in the underlying suit. ( Crowley v. Katleman (1994) 8 Cal.4th 666, 678–679.) “If the court de termines that there was probable cause to institute the prior action, the malicious pros ecution action fails, whether or not there is evidence that the prior suit wa s maliciously motivated.” ( Sheldon Appel, supra , at p. 875.) “Under established law, certain nonfinal rulings on the merits may serve as the basis for concluding that there was probable cause for prosecuting the underlying case on which a subsequent malicious prosecuti on action is based. [Citation.]” ( Paiva v. Nichols, supra, 168 Cal.App.4th at p. 1020.) Though the jury in the underlying fraud action ultimately found in Jensen’s favor, multip le interim rulings demonstrated that the Attorneys and Charon had probable cause to bring and pursue the first amended complaint in that action. In itially, the trial court overruled Jensen’s demurrer to the four causes of action first alleged in the original complaint and subsequently re-alleged in the first amended complaint. (See Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 626 [“because the trial court overruled Swat–Fame’s demurrer to the fraud claim, the lawyers necessarily had probable cause to bring the claim for fraud”], disapproved on another point in Zamos v. Stroud, supra, 32 Cal.4th at p. 973; see also Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4t h 313, 365 [applying SwatFame to the denial of a motion to dismis s in federal court, and characterizing Swat-Fame setting forth a “sound rule, . . . consistent w ith the principle that ‘[c]laims that have21 succeeded at a hearing on the merits . . . are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recogn ized their frivolousness’”].) Following the demurrer ruling, the trial court denied Jensen’s motion for summary judgment. While the interim adverse judgment ru le first provided that a victory at trial reversed on appeal sufficed to establish probabl e cause, the rule has been extended to the denial of a defense motion for summary judgment. ( Antounian v. Louis Vuitton Malletier, supra 189 Cal.App.4th at p. 450.) Our Supreme Court in Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at page 824, elaborated: “Denial of a defense summary judgment motion on grounds that a tr iable issue exists, or of a nonsuit, while falling short of a determination of the me rits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of action with evidence that, if believed, would justify a favorable verdic t . . . . [A] claimant or attorney who is in possession of such evidence has the right to bring the claim, even where it is very
doubtful the claim will ultim ately prevail.” (Accord, Hutton v. Hafif (2007) 150 Cal.App.4th 527, 550 [it is a “well-established rule of la w applicable to a malicious prosecution complaint that the denial of a summary judgment motion in the underlying action establishes probable caus e to file that lawsuit”]; Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 384 [“denial of defendant’s summa ry judgment in an earlier case normally establishes there was probable cau se to sue, thus barring a later malicious prosecution suit”].) 7 Finally, at the conclusion of the evidence during the tr ial in the underlying fraud action, the trial court denied Jensen’s mo tion for nonsuit. She argued there was

7 Because the summary ju dgment ruling addressed only whether the statute of limitations barred the action, the trial cour t did not find the denial of the motion indicative of probable cause. It relied on the Wilson court’s qualification that “[d]enial of a summary judgment motion on procedural or t echnical grounds, rather than for existence of triable issues of material fact, says not hing regarding the potential merit of the action and hence does not esta blish probable cause for its initiation.” ( Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 823.) We need not resolve here whether overcoming a statute of limitations bar is a technical or procedural ground unrelated to the action’s merits, given the other favorable interim ru lings that involved the claims’ merits.22 insufficient evidence to suppor t any of the four causes of action alleged in the first amended complaint, emphasizing the lack of evidence of damages. Charon opposed the motion, summarizing the evidence supporting its claims. The trial court ruled there was
“sufficient evidence for the jury to decide these issues.” This ruling established that Charon had probable cause to bring the underly ing fraud action, as the denial of a motion for nonsuit “is tantamount to a judicial decl aration that, at a minimum, the . . . claims were objectively tenable.” ( Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 69; see also Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 824 [finding that denial of a motion fo r nonsuit establishes the plaintiff can
substantiate its claims with sufficient evidence to support a favorable verdict].) Jensen argues that these interim rulings cannot support a finding of probable cause because they were obtained by fraud or perjury. (See Plumley v. Mockett, supra, 164 Cal.App.4th at p. 1053 [describing exception to interim adverse judgme nt rule “where the underlying victory was obtained by fraud or perjury”]; see also Roberts v. Sentry Life Insurance, supra, 76 Cal.App.4th at p. 384 [“if denial of summary judgment was induced by materially false facts submitted in oppos ition, equating denial with probable cause might be wrong”].) The “fraud exception” requires both “‘“knowing use of false and perjured testimony”’” and a showing that th e interim ruling would not have been made “but for” the use of the false evidence. ( Antounian v. Louis Vu itton Malletier, supra , 189 Cal.App.4th at p. 452.) Jensen cannot raise the fraud exception against the Attorneys because she cannot support her contention with any admissible evidence. Her elec tion not to include the trial court’s evidentiary rulings as part of her appe ndix does not change their effect. The trial
court sustained all but one of the Attorneys’ 15 evid entiary objections to her and Carl’s declarations, which effectivel y struck the entire declarati ons from evidence. Notably, objection numbers five and six were directed to Jensen’s “evidence” that the denial of summary judgment and nonsuit involved false testimony. Because she has denied their existence, Jensen has not cha llenged the evidentiary rulings on appeal. Consequently, we deem any issue concerning those rulings to have been waived and find the evidence was23 properly excluded. (E.g., Roe v. McDonald’s Corp., supra, 129 Cal.App.4th at pp. 1113– 1115.) Absent any evidence of Charon’s fraud in connecti on with the interim rulings,
Jensen cannot meet her burden to overcome th e effect of those rulings demonstrating probable cause. The same evidentiary rulings were not made in connection with Charon’s and Segal’s special motion to strike. Nonetheless, even if we consider Jensen’s evidence, we cannot conclude the fraud exception applies. Her declaration outlines in detail the supposed false testimony given by Segal at trial which formed the basis of the denial of the motion for nonsuit. Such testimony includ ed Segal’s claim that Jensen concealed the existence of the Silver action from him, c oncealed the existence of the lis pendens recorded by Silver ag ainst the Cass property and conceale d her obtaining a line of credit against the Cass property. That testimony, how ever, was already considered by the jury in the underlying fraud action. Though Jensen seeks to characterize Segal’s testimony as false, the jury concluded othe rwise, making the finding in its special verdict that Jensen and Charon were in a special relationship of trust or confidence and that Jensen “intentionally fail[ed] to disclo se an important fact that Ch aron Solutions, Inc. did not know and could not reasonably have discover ed.” We agree with the conclusion in Plumley v. Mockett, supra, 164 Cal.App.4th at page 1056 “that where claims of fraud or perjury are litigated and rejected by a fact finde r in an underlying case, those same claims
cannot be relied on to establish the absence of probable cause in a subsequent malicious prosecution suit. Stated differently, one cannot relitigate advers ely decided factual matters for purposes of establishing the fraud exception to the interim adverse judgment rule.” (See also Paiva v. Nichols, supra, 168 Cal.App.4th at p. 1027 [alleged misrepresentations that were raised before the trial court cannot be used to show the trial court’s ruling was fraudulently induced].) T hus, the testimony cited by Jensen cannot support application of the fraud exception. Moreover, Jensen’s failure to demonstrate that Segal knowingly used false or perjur ed testimony constitutes an independent basis why the fraud exception does not apply. (See Antounian v. Louis Vuitton Malletier,24 supra , 189 Cal.App.4th at p. 452.) Accordingly, the inte rim rulings likewise established probable cause for the purpose of Charon’ s and Segal’s special motion to strike.
We find no merit to Jensen ’s remaining challenge that Charon could not have had probable cause to institute th e underlying fraud action because it lacked standing to bring claims for injuries suffere d by P&P. The court in Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God (2009) 173 Cal.App.4th 420, 445, summarized the relevant principles: “Standing is a threshold issue, because without it no justiciable controversy exists. [Citation.] ‘Every action must be prosecuted in the name of the real party in interest . . . .’ [Citation.] ‘G enerally, “the person possessing the right sued upon by reason of the substantive law is the real party in interest.” [Citations.]’ [Cita tion.] To have standing, a party must be beneficially interested in the controversy, and have ‘som e special interest to be served or some particular right to be preserve d or protected.’ [Citation.] This interest must be concrete and actual, and must not be conjectural or hy pothetical. [Citation.]” Lack of standing is a jurisdictional defect that ma ndates dismissal of an action, and it can be raised for the first time at any stage in the action. ( Cummings v. Stanley (2009) 177 Cal. App.4th 493, 501.) In view of the mandated remedy for la ck of standing, we need not address Jensen’s final challenge. Even if we were to conclude that Charon lacked standing, such a finding would not change our disposition, as it would nega te the favorable termination
element of Jensen’s malici ous prosecution claim. (See Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 26, fn. 30 [“ we question whether even a dism issal based on any lack of standing or exhaustion of ad ministrative remedies should be held to reflect on the
merits ”]; Minasian v. Sapse (1978) 80 Cal.App.3d 823, 827 [“a dismissal . . . for lack of jurisdiction . . . not only is not on the merits, it is unreflective of the merits”].) In other words, if Jensen were able to show a lack of probable cau se due to Charon’s lack of standing, she would be unable to show the underlying fraud action was favorably
terminated on the merits. She would be unable to demonstr ate a probability of prevailing25 on one of the critical elements of her ma licious prosecution cl aim, and we would conclude the special motion to strike was properly granted as to Charon and Segal. 8 3. Peachtree and Jensen failed to show Schrenger acted with
malice. Because a malicious prosecution action ma y be based on a single cause of action in a lawsuit involving multiple claims (see Crowley v. Katleman, supra, 8 Cal.4th at p. 693), we discuss the remaining two causes of action that were alleged in the original complaint but not the first am ended complaint in the underly ing fraud action. The trial court denied Charon’s and Segal’s motion to strike as to those two claims on the basis that Jensen met her burden to establish a pr obability of prevailing on all three malicious prosecution elements as to t hose parties. In connection with the Attorn eys’ special motion to strike, however, the trial court ru led Jensen failed to meet her burden to
establish the element of malice. 9 We agree that Peachtree’s and Jensen’s failure to offer admissible evidence showing malice supported th e trial court’s conclusion that they could not establish a probability of prevailing agai nst Shrenger on the un just enrichment and declaratory relief claims allege d in the original complaint.
The malice element of malicious prosecution “relates to the subjective intent or

purpose with which the defendant acted in initiating the prior action. [Citation.] The

8 We acknowledge that the parties again ha ve raised multiple arguments in support of and in opposition to Jensen’s position th at the order granting the special motion to strike should be reversed. “Ordinarily, when an appellate court concludes that affirmance of the judgment is proper on certain ground s it will rest its decisi on on those grounds and not consider alternative grounds which may be available.” ( Filipino Accountants’ Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1029.) We find no basis to depart from the ordinary rule.

9 We note that the trial court also rule d Jensen could not esta blish a probability of prevailing for her failure to offer evidence of malice in co nnection with the conversion claim alleged in the first ame nded complaint, explaining that claim was not part of the motion for nonsuit. The trial court made no su ch distinction in its later order granting in part Charon’s and Segal’s motion to strike , and we likewise find no admissible evidence in the record establishing th at the motion for nonsuit was not directed to all claims alleged in the first amended complaint.26 motive of the defendant must ha ve 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. [Citation.] It may range anywhere from ope n hostility to indifference. [Citation.]” ( Downey Venture v. LMI Ins. Co (1998) 66 Cal.App.4th 478, 494.) Shrenger represented Charon when it f iled the original complaint against
Peachtree and Jensen in December 2009. 10 Approximately three months later, he moved to be relieved as counsel and ultimately s ubstituted out of the action before the first amended complaint was filed. In support of his special motion to strike, Shrenger
submitted a declaration in which he averred he evaluated the fa cts as provided to him by Segal, he had no reason to know that a ny of the information Segal provided was inaccurate or untruthful, and he filed the complaint against Peachtree and Jensen on the basis of Segal’s information and his own bus iness litigation experience. He further averred that he had no knowledge of Peachtr ee or Jensen before being retained by Charon, and he bore no “ill will or malice towards either of thes e parties.” He stated that his “sole intention in drafting and filing th e Complaint was to obtain the redress for CHARON which, based upon the information th at had been provided to me, I believed it
to be entitled.” While Shrenger established the absence of any improper motive, Jensen offered no admissible evidence to support a showing of malice. Nonetheless, she argues that malice
should be inferred from ev idence showing a lack of probable cause. (See Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.) Again, however, her contention

10 There was no evidence offered to show that any of the other Attorneys were involved in the decision to f ile the unjust enrichment and declaratory relief causes of action, and those Attorneys did not maintain those claims once they were counsel of record. Thus, Peachtree and Jensen failed to show any probability of prevailing against them on those two claims. (See Sycamore Ridge Apartments LLC v. Naumann, supra , 157 Cal.App.4th at p. 1410 [“An attorney who associates into a case that is being maliciously prosecuted participates in harmi ng the defendant for the time period that the attorney allows the untenable claims to remain alive”].)27 fails for a lack of evidence. In making an assessment of le gal tenability, an attorney is entitled to rely on the informati on provided by his or her clie nt, unless the attorney is on notice of specific factual errors or misstatements in the clie nt’s version of events that render the claim untenable. ( Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at pp. 625–627.) Peachtree and Jens en offered no evidence to demonstrate that Schrenger did not reasonably rely upon Segal’s representations. Accordingly, we agree with the
trial court that the evidence was insuffici ent to support a showing of malice, and Peachtree and Jensen therefore failed to satisfy their burden of establishing a probability of success on the remaining aspect of the malicious prosecution claim. III. The Trial Court Properly Denied a Portion of the Marcin Lambirth Attorneys’ Motion for Attorney Fees. Following the trial court’s granting thei r special motion to strike, the Marcin Lambirth attorneys moved for an award of attorney fees pursuant to section 425.16, subdivision (c). 11 Initially, they sought recovery of $44,893.86 in fees and costs, which included time spent by attorneys Murad, Michael W. Feenberg and Johnathan B. Cole. In support of the motion, Murad submitted a declaration averri ng that he represented the Marcin Lambirth attorneys in defending against Peachtre e and Jensen’s malicious prosecution action and drafted the anti-SLAPP motion. Attach ed to his declaration were copies of the invoices he submitted to the Marc in Lambirth attorneys. Before the hearing on the anti-SLAPP motion, he had substituted out of the action, and Feenberg and Cole thereafter represented the Ma rcin Lambirth attorneys. Peachtree and Jensen opposed the motion. Their primary argument was that Murad was actually an employee of Marcin Lambirth and therefore the firm was essentially self-represented. Peachtree’s and Jensen’s counsel submitted a declaration attaching evidence showing that Murad was liste d as an attorney on the firm’s Web site, he appeared in firm photographs on the We b site, a local Bar Association article

11 Shrenger and Miller also moved for attorney fee aw ards, but they have not challenged the trial court’ s rulings on their motions.28 described Murad as a firm associate, a pub lication from the same local Bar Association provided a Marcin Lambirth e-mail addre ss for Murad, both Marc in Lambirth’s and Murad’s individual listings on the Martindale Hubbell Web site described Murad as an attorney with the firm, and Murad’s “LinkedIn” profile identified him as an attorney at
Marcin Lambirth. In reply, the Marcin Lambir th attorneys reduced their f ee request to $31,423.22 for
an unrelated and inadvertent inclusion of a ttorney time. They al so offered evidence— through their joinder in Miller’s reply—to demonstrate that Murad was merely “of
counsel” to Marcin Lambirth and represented the firm in th e capacity of an independent
contractor. Murad declared that he had been an associ ate at Marcin Lambirth from
October 2007 to October 2008 and thereafter be came of counsel to the firm; since 2009 he was compensated by the firm as an inde pendent contractor. He attached current information from the City of Pasadena, the California State Bar, Martindale Hubbell and LinkedIn showing a business address separate from Marcin Lambirth . Attorney Marcin similarly averred that Murad was not an employee or associ ate of the firm while the malicious prosecution action was litigated. Following a March 2012 hearing, the trial court denied the motion to the extent it sought attorney fees incurred for Murad and granted the balanc e of the motion. It ruled
that Marcin Lambirth’s eviden ce was insufficient to show the actual relationship between Murad and the firm beyond Murad’s of counse l status. More spec ifically, there was no
evidence offered to show that Marcin Lambirth was require d to pay fees to Murad, that
Murad and Marcin Lambirth ha d an attorney-client relations hip or that Murad’s business was to represent his own individual client s as opposed to clients of the firm. Accordingly, the trial court reduced the amount requested by $14,098.44—the amount
attributable to Murad’s work. Section 425.16, subdivision (c)(1) provides that a defendant who prevails on a special motion to strike is “entitled to recove r his or her attorney’s fees and costs.” The California Supreme Court has therefore in structed that “any SLAPP defendant who brings a successful motion to strike is entitled to mandatory a ttorney fees.” ( Ketchum v.29 Moses (2001) 24 Cal.4th 1122, 1131.) The amount of the fee award, however, is left to the trial court’s discretion. ( Id. at p. 1134.) “The reason is that the ‘“‘experienced trial judge is the best judge of the value of prof essional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’”’ [Citations.]” ( Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 556–557.) But where the question does not involve the amount of the fee award, but whether fees should be awarded at all, the question becomes one of law that we review independently. ( Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 378; Sherwood Partners, Inc. v. EO P-Marina Business Center, L.L.C. (2007) 153 Cal.App.4th 977, 981.) In determining whether atto rney fees have been incurre d for the purpose of awards under section 425.16, subdivis ion (c), courts have relied on cases construing fee awards to prevailing parties under Civil Code section 1717. ( Carpenter & Zuckerman, LLP v. Cohen, supra , 195 Cal.App.4th at pp. 378–380.) The case law regarding contractual attorney fee awards is clear. The court in Sands & Associates v. Juknavorian (2012) 209 Cal.App.4th 1269, 1272 ( Sands ), held “a law firm cannot recover attorney fees under a prevailing party clause when, as a successful litig ant, it is represented by ‘of counsel.’”
The Sands court premised its conclusion “on two we ll-settled principles. First, when a law firm is the prevailing part y in a lawsuit and is represen ted by one of its partners, members, or associates, it cannot recover atto rney fees even though the litigation is based on a contract with a prevailing party clause. [Citations.] [¶] Second, the relationship
between a law firm and ‘of counsel’ is ‘“cl ose, personal, continuous, and regular.”’ [Citation.] ‘“[T]o the extent the relations hip between [an attorney] or law firm and another [attorney] or law firm is sufficiently ‘close, pers onal, regular and continuous,’
such that one is held out to the public as ‘of counsel’ for the other, the . . . relationship
must be considered a single, de facto firm for purposes of [avoidi ng the representation of adverse interests].”’ [Citations.]” ( Id. at pp. 1272–1273.)30 Here, the evidence was undisputed that Mu rad was of counsel to Marcin Lambirth at the time he represented the firm in connec tion with the malicious prosecution action.
Marcin averred “Mr. Murad ha s been ‘of counsel’ to Marc in Lambirth, LLP, and has been an independent contractor with Marc in Lambirth, LLP, since October 2008.” Murad similarly declared that “[s]ince Octobe r 2008, I have been ‘Of Counsel’ to Marcin Lambirth, LLP, and I have been an inde pendent contractor.” Similarly, in Sands, supra, 209 Cal.App.4th at page 1295, the evidence showed the firm communicated to the public
via firm letterhead and direct ories that the two a ttorneys were of counsel, and the court concluded “it does not matter that they may have represented clients obtained through their own efforts, that they ha d what they call a ‘separate’ pr actice, or that they were not on the firm’s payroll.” The Sands court held “[i]n light of the close, personal, continuous, and regular relationship between the Sands firm and Of Counsel [citation], we conclude that, in recovering the unpaid attorney fees from Ju knavorian, Of Counsel were pursuing the interests of the Sands firm and their own personal interests; the firm
and Of Counsel had the same interests. [Citations.]” ( Id . at p. 1296–1297.) The court
added that “because the firm and Of Coun sel constituted a ‘single, de facto firm’ [citation], an attorney-client relationship did not exist betw een them. [Citations.]” ( Id . at p. 1297.) Though the Marcin Lambir th attorneys argue the evid ence was insufficient to
show that Murad remained asso ciated with the firm, their own declarations established
that he served as of counsel to the firm . In light of that relationship, we find Sands,

supra , 209 Cal.App.4th 1269 contro lling. “[B]ecause the relationship between a law firm and ‘of counsel’ is close, personal, regular, and continuous, we conclude that a law firm and ‘of counsel’ constitute a single, de fact o firm, and thus a la w firm cannot recover attorney fees under a prevailing party clau se when, as a successful litigant, it is represented by ‘of counsel.’” ( Id . at p. 1273.) The trial court properly declined to award attorney fees for work performed by Murad.31 IV. The Trial Court Properly Granted Peachtree’s and Jensen’s Special Motion
to Strike. In its order granting Peachtree’s and Je nsen’s special motion to strike the malicious prosecution cross-complaint filed by Charon and Segal, the trial court ruled
Peachtree and Jensen met their burden to show the cross-co mplaint arose from protected activity and Charon and Segal fa iled to meet their burden to demonstrate a probability of prevailing on the merits. More specifically, the trial court ruled that the denial of summary judgment on the breach of contract cause of action in the cross-co mplaint in the underlying fraud action esta blished the objective tenability of that claim, and it rejected Charon’s and Segal’s argument that the summary judgment ruling was induced by the use of false or perjured testimony. As to the re maining claims for breach of fiduciary duty, fraud, negligence and declaratory relief whic h were disposed of by demurrer, the trial court determined Charon and Segal failed to provide evidence that those claims lacked probable cause. We find no basis to disturb the trial court’s order. A. Additional Background Related to Pleadings Underlying the Motion to
Strike.
After the trial court sustained a demurrer with leave to amend, Peachtree filed a first amended cross-complaint against Char on and Segal in the underlying fraud action. 12 It generally alleged that Segal represented to Jensen he had significant real estate development experience and was familiar with the government permit and entitlement process. In reliance on Segal’s “representati ons of his experience and expertise in the development and construction fields, and his representa tion of his knowledge and proficiency in dealing with governmental en tities,” Peachtree agreed to enter into a partnership with Charon.
In connection with the breach of contract cause of action, Peachtree alleged that
Peachtree and Charon entered into the P&P Operating Agreemen t and, in furtherance of

12 The trial court sustained the demurrer w ithout leave to amend as to the breach of fiduciary duty claim against Segal.32 that agreement, Jensen and Segal entered in to an oral agreement whereby Segal would employ his services to obtain a lot split of th e Cass property. Upon completion of the lot split, a portion of the Cass pr operty would be conveyed to P&P for development. Peachtree alleged that it and Jensen perfo rmed the terms of the P&P Operating Agreement and the oral agreem ent, but that Segal failed to competently pursue the lot split and to achieve the lot sp lit, and in turn caused Char on to withdraw from P&P.
The second cause of action for breach of fiduciary duty alleged against Charon identified a number of specific breaches, generally categorized as misrepresenting Segal’s skill and expertise in re al estate development, failing to further P&P’s interests by making the required government al submissions, failing to seek project approval from neighboring property owners and failing to a dvise Peachtree and Jensen of the negative consequences stemming from a lot split. The third cause of action for fraud against Segal alleged that Jensen reasonably and justifiabl y relied on his representa tions about his real estate expertise, that Sega l knew such representations we re false and that Jensen expended money in reliance on such represen tations. The fourth cause of action for negligence against Charon and Segal reiterate d much of the breach of fiduciary duty claim, and the fifth cause of action sought a judicial determination of the parties’ respective rights to the Cass property.
The trial court thereafter sustained demurre rs without leave to amend to all causes of action except breach of contract against Ch aron. After the trial court denied Charon’s motion for summary judgme nt, that claim went to trial and the jury answered “No” to the special verdict question “[d]id Charon Solu tions, Inc. fail to do something that the contract required it to do?” Charon and Segal thereafter filed their malicious prosecution cross-complaint. They alleged the cross-complaint and firs t amended cross-complaint were brought without probable cause and Jensen’s failure to cooperate and initiation of the Silver action led to the demise of the lot split. They further alleged that the denial of summary judgment was the result of Jensen’s conceali ng material documents which had been part33 of her architect’s file and sh owed the conditions she claimed Segal failed to satisfy had been approved. B. Charon and Segal Failed to De monstrate a Probability of Prevailing. Because there is no question that the ma licious prosecution cross-complaint arose from protected activity, we proceed directly to the second prong of the anti-SLAPP
motion and determine whether Ch aron and Segal established a probability of prevailing. To make this assessment, we “must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any
constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate t hose defenses. [Citation.]” ( Ramona Unified School Dist. v.
Tsiknas (2005) 135 Cal.App.4t h 510, 519.) “[T]he plainti ff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.]” ( Integrated Healthcare Hold ings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 527.) The plaintiff’s showing must be “made through ‘compe tent and admissible evidence.’ [Citations.] Thus, declarations that lack foundation or personal knowledge, or that are argumentative, speculativ e, impermissible opinion, hearsay, or conclusory are to be disregarded. [Citation.]” ( Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.) In their motion to strike, Peachtree a nd Jensen focused on the probable cause element of malicious prosecution, and argued both the affirmative defense of advice of counsel and the interim adverse judgment rule demonstrated they had probable cause to
file and maintain the cross-co mplaint. Because we find the advice of counsel defense dispositive, we need not addr ess the other probable cause ar guments raised by the parties. “Lack of probable cause is an essential element of a cause of action for the
malicious institution of a civil proceeding. [Citation.]” ( Copenbarger v. International
Ins. Co. (1996) 46 Cal.App.4th 961 , 964, fn. omitted.) “‘Probable cause may be established by the defendants in a malicious institution proceed ing when they prove that they have in good faith consulted a lawyer, ha ve stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon34 the advice of the lawyer.’ [Citations.]” ( DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1397–1398.) Here, in support of the special motion to strike, Jensen averred that after she and
Peachtree were served with th e complaint in the underlying fraud action, she engaged attorney Alan Carn egie (who had represented her in the Silver action) to represent them. During the course of that representation, they discussed whether to file a cross-complaint.
In connection with that determin ation, Jensen made a full di sclosure to Carnegie of all
favorable and unfavorable facts known to he r related to the matters alleged in the underlying fraud action an d provided him with all documents in her possession or control concerning those matters. Jensen’s declar ation outlined a number of specific facts disclosed to Carnegie concerning Jensen’s di scussions with Segal ab out the proposed lot split of the Cass property. She declared: “B ased on all of the foregoing, Mr. Carnegie advised me that in his opinion, Peachtree had both a legal and factual basis to file in the underlying action a cross-compla int asserting claims for (i ) breach of fiduciary duty, (ii) negligence, and (iii) fraud. He said each of those three claims was well founded in law and factually well supported, and I, as an officer and director of Peachtree, relied upon that advice in authorizing him to file th at cross-complaint on behalf of Peachtree.” Jensen made similar representations in conne ction with the filing of the first amended cross-complaint, averring that she relied on hi s advice in filing that pleading. Further according to her declaration, Jensen outlined the discovery in wh ich she e ngaged and stated that Carnegie c ontinued to advise her throughout th at process that her claims were
well founded in fact and law. At no time did Carnegie indicate to her that he no longer considered her claims to be unsupported by f act or law. Jensen averred she “consulted both [ sic ] Mr. Carnegie in good faith , and in good faith relied and acted upon his advice
and counsel.”
“Good faith reliance on the advice of counse l, after truthful disclosure of all the relevant facts, is a complete defense to a malicious prosecution claim. [Citation.]” ( Bisno v. Douglas Emme tt Realty Fund 1988 (2009) 174 Cal.Ap p.4th 1534, 1544 ( Bisno ).) Jensen’s declaration was sufficien t to raise the defense. As in Bisno , her35 declaration outlined the facts she disclosed to counsel and her good faith reliance on counsel’s advice in filing the cross-complaint. ( Id. at pp. 1544–1547.) The Bisno court expressly declined to impose a heightened dut y of disclosure on one relying on an advice of counsel defense, rejecting the notion that th e client is obligated to point out particular contract provisions that may be detrimental to its position or provide documents that offer nothing more than cumu lative information. ( Id . at pp. 1547–1549.) Against this defense, Charon and Segal failed to offer admi ssible evidence to demonstrate a probability of prevailing. To meet its burden on the second prong of an anti-SLAPP motion, the plainti ff opposing the motion must sh ow that “‘“defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would nega te such defenses.”’ [Citations.]” ( Birkner v. Lam (2007) 156 Cal.App.4th 275, 285–286; see also Flatley v. Mauro, supra, 39 Cal.4th at p. 323 [“The litigation privilege . . . may pres ent a substantive defense a plaintiff must overcome to demonstrate a proba bility of prevailing”]; Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutte r Group 2012) 7:1015 , p. 7(II)–49 [to demonstrate a “‘probability of success on the merits,’” “[p]laintiff must present evidence to overcome any privilege or defense to the claim that has been raised”].) Though several courts have stated a defendant moving to strike bears the burden of proof on an affirmative defense (see Seltzer v. Barnes (2010) 182 Cal.Ap p.4th 953, 969; Premier Medical Management System s, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 477), reliance on advice of co unsel need not be raised by way of an affirmative defense (see State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 727 [“advice of counsel need not be affirmatively alleged in a malicious prosecution action as a defense to the elements of lack of probable cause and malice”];
Walker v. Jensen (1949) 95 Cal.App.2d 269, 275 [“ the defense of reliance upon the advice of counsel may be shown under a genera l denial”]). Accordingly, for the purpose of the motion to strike, Charon and Sega l ultimately bore the bur den of negating the
advice of counsel defense.36 In an effort to meet thei r burden, Charon and Segal objected to the portions of
Jensen’s declaration that addressed her ad vice of counsel defense; the trial court overruled all objections. On appeal, they ma intain the trial court abused its discretion because Jensen’s statements were hearsay an d conclusory. We find no basis to disturb the trial court’s rulings. (See In re Ryan N. (2001) 92 Cal.A pp.4th 1359, 1385 [“Evidentiary rulings will not be overturned on a ppeal in the absence of a clear abuse of that discretion, upon a showin g that the trial court’s deci sion was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficien tly grave as to amount to a miscarriage of justice”].) Jens en’s statements conc erning what she disclosed to Carnegie
and what she did in reliance on his advice were evidence of her state of mind in filing and pursuing Peachtree’s cross-complaint, and th erefore not made inadmissible by the hearsay rule. (Evid. Code, § 1250, subd. (a)(2).) Moreover, the statements were not conclusory, as the level of sp ecificity was similar to stat ements in other cases found adequate to support an advice of counsel defense. 13 (See, e.g., Bisno, supra, 174 Cal.App.4th at pp. 1544–1547; DeRosa v. Transamerica Title Ins. Co., supra, 213 Cal.App.3d at p. 1398.) Char on’s and Segal’s citation to Wilson v. Superior Court (1964) 226 Cal.App.2d 715, 722, is not persuasive, as in that case the court found a declaration by counsel stating his “belief” that certain ma tters were covered by the work product rule
did not constitute evidence. Charon and Segal also challenged the su fficiency of Peachtree and Jensen’s showing, arguing that they were required to offer Carnegie’s declaration regarding the advice he provided. But they have cited no authority for the proposition that an advice of counsel defense requires a declaration or te stimony from counsel, nor have we located any. (See Warner v. O’Connor (1962) 199 Cal.App.2d 770, 774–775 [probable cause

13 Typically, a “conclusory” objection is reserved for expert testimony. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.Ap p.4th 1108, 1117 [“when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factua l predicates to the ultimate conclusion, that opinion has no evidentiary value becau se an ‘expert opinion is worth no more than the reasons upon which it rests’”].)37 based on advice of counsel defense found valid on the basis of the plaintiff’s testimony];
cf. Bisno, supra , 174 Cal.App.4th at p. 1544 [charact erizing attorney declarations as “back[ing] up” the plaintiff’s advice of co unsel defense, but not suggesting such declarations were required].) Charon and Segal’s central contention is that Peachtree and Jensen may not rely on the advice of counsel defense because they concealed evidence. As explained in
Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383, “if the defendant acted in bad
faith or withheld facts from counsel he or she knew or should have known would have defeated the cause of action, probable cause is not established. ‘[C]ounsel’s advice must be sought in good faith [citation] and “. . . not as a mere cloa k to protect one against a suit for malicious prosecution.” [Citation.]’ [Citation.]” They rely on the declaration of Marcin Lambirth attorney Ashkinadze who stated that in January 2010 she conducted the depo sition of architect John Dolinsky and at that
time learned about the existence of a file for a remodel project on the Cass property. Thereafter, she undertook efforts to obtain the file, including subpoenaing Dolinsky. When he failed to produce anything in resp onse to the subpoena, she contacted him by telephone and he told her that Carnegie told him he did not have to produce the file and
Jensen instructed him not to produce the file. After receivi ng an ex parte notice of a motion to compel, Carneg ie told Ashkinadze that he had never seen the file, but would instruct Dolinsky to provide it. Thereafter, in May 2010 Dolinsky made the file available at his office. The file contained documents ge nerated in 2007 that related to a proposed second floor addition and garage relocation for the single family residence on the Cass property. In connection with that project, the file also contained a 2008 covenant and agreement regarding the approval of a parcel map that suggested one of the conditions Peachtree and Jensen alleged Charon and Segal failed to co mplete was now satisfied. 14

14 Although the trial court sustained Pe achtree and Jensen’s objections to the statements in Segal’s decl aration on this point, it overruled their objections to Ashkinadze’s declaration and the exhibits atta ched to Segal’s declaration that addressed the same issue.38 We fail to see how this ev idence undermines Peachtree and Jensen’s advice of
counsel defense. In order to rely on the defense, the ma licious prosecution defendant
must disclose to counsel all material facts within his or her knowledge. ( Warner v. O’Connor, supra, 199 Cal.App.2d at p. 775; Schubkegel v. Gordino (1943) 56 Cal.App.2d 667, 673.) Viewed in a light most favorab le to Charon and Segal, the evidence showed Jensen attempted to conc eal that she had received approval of a condition she alleged Segal represented he would obtain. But Jensen satisfied the condition in 2008; Peachtree’s cross-complain t alleged that Segal represented he would and had a duty to undertake to satisfy the requisite conditions for the lot split proposed in
1999 in connection with the formation of P&P. It alle ged that Charon and Segal incurred liability on the basis of making misrepresent ations, failing to fulfill their duties and breaching promises in connecti on with the lot split that was proposed before 2006 when
Charon withdrew from P&P. Th e assertedly concealed facts about events that occurred in 2007 and 2008 were not material, nor did they serve to defeat Peachtree and Jensen’s causes of action. (See Palmer v. Zaklama, supra, 109 Cal.App.4th at pp. 1383–1384.) At best, the file showed that Jensen undertook to satisfy a condition as part of a different project that was commenced after Charon had withdrawn from P&P. Because Charon and Segal have not shown a probability of su ccess in overcoming Peachtree and Jensen’s advice of counsel defense, the trial court prop erly granted the specia l motion to strike. (See, e.g., Belair v. Riverside C ounty Flood Control Dist. (1988) 47 Cal.3d 550, 568 [“There is perhaps no rule of review more fi rmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicab le to the case, the judgment will be sustained regardless of the c onsiderations that moved the lower court to its conclusion”].)39 DISPOSITION The orders granting in part Charon’s and Segal’s motion to strike, denying in part
the Marcin Lambirth motion fo r attorney fees and granti ng Peachtree’s and Jensen’s motion to strike are affirmed. All par ties to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

________________ _____, J. *
FERNS
We concur:

_____________ _______________, P. J.
BOREN

___________________ _________, J.
CHAVEZ

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.