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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 Court 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 Respondents Peaches Nong Jensen and Peachtree 

Financial Corporation. 

 
2

 Henry J. Josefsberg for Defendants and Respondents, Cross-complainants and 

Appellants Charon Solutions, Inc. 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 Graham A. Bentley; Nemecek & Cole and David B. Owen for 

Defendants and Respondents Justin Shrenger and the Law Offices of Justin J. Shrenger. 

Law Offices of Mark Murad and Mark Murad for Cross-complainants and 

Appellants Marcin Lambirth, LLP, John B. Marcin, Timothy Lambirth, Regina 

Ashkinadze, Graham Bentley and Defendant and Respondent Lisa Miller. 

* * * * * * 

 Following a failed real estate transaction, Charon Solutions Inc. (Charon), owned 

by Perry Leonard Segal (Segal), sued Peachtree Financial Corporation (Peachtree) and its 

owner Peaches Nong Jensen (Jensen), who in turn cross-complained. After neither side 

prevailed, they sued each other for malicious prosecution. Peachtree and Jensen also 

sued a number of attorneys, 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 collectively Attorneys). In 

turn, the Attorneys and 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 granted 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 and Jensen failed to meet their burden to 

demonstrate a probability of prevailing on essential elements of their malicious 

 

1 Unless otherwise indicated, all further statutory references are to the Code of Civil 

Procedure. 
3

prosecution cause of action. Peachtree failed to establish it received a favorable 

termination, Jensen failed to establish that Charon and Segal lacked probable cause to 

bring and maintain the underlying action, and both parties failed to show that Charon’s 

first attorney acted with malice. The trial court also properly declined to award attorney 

fees for an attorney who 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 Peachtree lacked probable cause to bring and 

maintain its cross-complaint. 

FACTUAL AND PROCEDURAL BACKGROUND 

The Parties and the Proposed Real Estate Venture. 

 Segal was the 100 percent owner of Charon, while Jensen was the 100 percent 

owner of Peachtree. In September 1999, Jensen purchased real property located at 

22393 Cass Avenue in Woodland Hills (Cass property) from Scott Silver. As early as 

1999, she expressed to Segal an interest in splitting the Cass property. 

In January 2000, Charon and Peachtree entered 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 interest. Neither Segal 

nor Jensen were parties to the P&P Operating Agreement 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 benefit of P&P. Jensen applied for a lot split 

in June 2002, and in 2003, the City of Los Angeles tentatively 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 defects, he asked her not to initiate an action 

against Silver, as it might jeopardize the lot split. Nonetheless, initially unbeknownst to 

Segal, Jensen filed suit against Silver (Silver action), and Silver cross-complained and 
4

recorded a lis pendens against the Cass property. Silver’s claims were bifurcated and 

tried in December 2005. 

 Also in December 2005, pending final argument in the Silver action, Charon gave 

written notice of its withdrawal from P&P (withdrawal letter). Charon, through Segal, 

wrote it had learned Jensen intentionally failed to disclose material information and gave 

false testimony in the Silver action. It accused Jensen of failing to contribute to and 

obstructing P&P’s venture, taking out a $200,000 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 seek to intervene in the 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 existence during her trial testimony, Charon gave 

notification of its withdrawal, returned a number of P&P related items and demanded 

reimbursement of its P&P investment. The letter 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 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 time to give you an opportunity 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 action, 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 Schrenger (sometimes collectively Schrenger), filed a complaint 

against Peachtree, Jensen and her husband Carl Jensen (Carl) alleging causes of action for 
5

fraud, breach of fiduciary duty, conversion, unjust enrichment and declaratory relief 

(underlying fraud action). Peachtree, Jensen and Carl demurred 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 through 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 against Charon and fraud against Segal. Thereafter, the trial 

court sustained a demurrer without leave to amend as to all causes of action except 

breach of contract against Charon and entered a partial judgment of dismissal as to Segal. 

In April 2009, now represented by Marcin Lambirth LLP and 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 first amended complaint, the trial court entered a partial 

judgment of dismissal in favor of Peachtree. Marcin Lambirth associates including 

Regina Ashkinadze and Graham Bentley worked on the matter.2 As “of counsel” to 

Marcin Lambirth, attorney Lisa Miller assisted in preparing 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 trial court denied their motion for summary 

judgment, but granted summary adjudication 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, brought on the basis that the statute of 

 

2 On occasion we refer to this group of attorneys as the Marcin Lambirth attorneys. 
6

limitations barred Charon’s claims. It likewise denied Charon’s motion for summary 

judgment on the cross-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 motion for nonsuit. The jury rendered a special verdict in 

favor of Jensen on Charon’s complaint and in favor of Charon on Jensen’s crosscomplaint. 

Peachtree’s and Jensen’s Malicious Prosecution Complaint and Special 

Motions to Strike. 

 In September 2011, Peachtree and Jensen 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 probable 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 declarations and trial transcript 

excerpts, and sought judicial notice of pleadings, motions and orders in the underlying 

fraud action. Peachtree and Jensen opposed the motions. The trial court denied their 

ex parte application to file an oversized opposition brief. In support of their opposition, 

they filed a “master list” to which they attached a number of documents, including 

pleadings, orders, transcripts, deposition excerpts, 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 with their replies, the Attorneys objected to 

the length of Jensen’s opposition papers and filed evidentiary objections. 

The trial court heard the Attorneys’ motions 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 page limits set by the 

court. Though it identified Peachtree’s and Jensen’s failure to comply with the California 

Rules of Court as an alternative basis for granting the motions, it further indicated that 
7

because of the nature of the matter and the ultimate disposition it would consider all 

opposition papers. With respect 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 from Peachtree’s and Jensen’s appendix on 

appeal, their counsel acknowledged during the hearing “that Your Honor has ruled on all 

evidentiary objections.” As part of its order, 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 malicious prosecution arose from protected 

activity. It further found that Peachtree could 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 therefore 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 showed neither a lack 

of probable cause nor malice on the part of the Attorneys. More specifically, the denial 

of her motion for nonsuit established that the causes of action at trial were objectively 

tenable. With respect to the causes of action for conversion, unjust enrichment and 

declaratory relief that were disposed of before trial, Jensen failed to submit admissible 

evidence establishing the Attorneys 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 pleadings, motions, orders and transcripts in the 

underlying fraud action. Peachtree and Jensen opposed the motion, 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 elements of their malicious prosecution 

cause of action. Jensen and Carl submitted lengthy declarations virtually 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 Peachtree and denied the motion in part as to Jensen. It ruled 

Charon and Segal met their initial burden to show that the conduct alleged arose from 

protected activity. With respect to the second prong, the trial court concluded that 

Peachtree could not establish a probability of prevailing because 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 declaratory relief that were eliminated from the action 

via a demurrer sustained without leave to amend. The trial court determined that the 

denial of Jensen’s motion for nonsuit demonstrated she could not establish a lack of 

probable cause as to the remaining causes 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 issued 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 Lambirth 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 fees were not available because the Marcin 

Lambirth attorneys were represented by one of their own employees. In support of their 

opposition, they submitted evidence designed to show that counsel for the Marcin 

Lambirth attorneys, Mark Murad (Murad), was associated with the firm. The Marcin 

Lambirth attorneys and Miller objected to Peachtree’s and Jensen’s evidence and argued 

that Murad was a former associate, 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 the Marcin Lambirth attorneys’ motions, 

and denied Miller’s motion. With respect to Miller, the trial court reasoned the evidence 
9

showed she and her attorney Murad were both of counsel 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 requested by the Marcin Lambirth attorneys, 

declining to award any amount for work performed by Murad. The Marcin Lambirth 

attorneys appealed. 

Charon’s and Segal’s Malicious Prosecution Cross-Complaint and Special 

Motion to Strike. 

 In May 2012, Charon and Segal filed a cross-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 cross-complaint in the underlying 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 reasons, 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 incorporated her prior 

declarations. She attached as exhibits certain pleadings in the underlying fraud action. 

Charon and Segal opposed the motion, asserting that Peachtree’s and Jensen’s arguments 

were premised on their concealment of evidence and fraud. In support of their 

opposition, they submitted Segal’s declaration, pleadings, motions, orders, deposition 

excerpts and a number of documents relating to the Cass property. They also filed 

evidentiary objections to Jensen’s declaration. Peachtree and Jensen replied and filed 

evidentiary objections. 

 Following a July 2012 hearing, the trial court granted 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 declaration, 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 Lambirth attorneys. 
10

DISCUSSION

We address the four challenged rulings: The trial court’s granting the Attorneys’ 

motion to strike, granting in part Charon’s and Segal’s motion to strike, denying in part 

the Marcin Lambirth attorneys’ motion for attorney fees and granting Peachtree’s and 

Jensen’s motion to strike. 

I. Applicable Law Governing Special Motions to Strike and Standards of 

Review. 

 A special motion to strike under section 425.16, also known as the “anti-SLAPP”3

statute, allows a defendant to seek early dismissal 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 cause of action is one arising 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 underlying 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 burden shifts to the plaintiff to establish 

a probability he or she will prevail 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 issue, while the plaintiff bears the burden on 

the second issue].) “In assessing the probability 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 728, 732, fn. 1.) 
11

evidence that would be presented at trial, similar to reviewing a motion for summary 

judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must 

adduce competent, admissible 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 [the plaintiff’s showing “must consist of evidence that would be 

admissible at trial”]; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497–1498 [an 

averment on information and belief is insufficient to show a probability of prevailing].) 

“The court also considers the defendant’s opposing evidence, but only 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 make credibility determinations. [Citations.]” (Kashian v. 

Harriman (2002) 98 Cal.App.4th 892, 906.) 

We review de novo the legal question of whether the special motion to strike was 

properly granted, conducting an independent 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 connection 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 admitting 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 manifest 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 asserted 
12

erroneous evidentiary rulings must 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 been waived. [Citations.]” 

(Lopez v. Baca (2002) 98 Cal.App.4th 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 hearings, the trial court first granted the 

Attorneys’ special motion to strike 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 for 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 prosecuted without probable cause and with malice. As 

explained in Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215: “The plain language 

of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of 

action arising from protected activity because every such claim necessarily depends upon 

written and oral statements in a prior 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 prosecution 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 threshold burden to show 

the complaint arose from protected activity, as the allegations related to the filing of an 

action and their right to petition. 
13

 We reject Peachtree’s and Jensen’s argument that their allegations concerning the 

withdrawal letter established the moving parties had engaged in unlawful or criminal 

activity that would not qualify as protected activity under section 425.16. In Flatley, 

supra, 39 Cal.4th at page 305, the court held communications that amounted to criminal 

extortion were not protected activity under the anti-SLAPP statute. There, the defendant 

attorney sent a letter to an entertainer threatening to publicly accuse him of rape unless he 

“settled” by paying a sum of money to assure silence. (Id. at pp. 308–309, 329.) Relying 

on Penal Code section 518’s definition of extortion as “‘the obtaining of property from 

another, with his consent . . . induced by a wrongful use of force or fear,’” the Supreme 

Court deemed the letter “criminal extortion 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 plaintiff’s action arises from activity by the 

defendant in furtherance of the defendant’s exercise of protected speech or petition rights, 

but either the defendant concedes, or the evidence conclusively establishes, that the 

assertedly protected speech or petition activity 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 connection 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 about Jensen’s unethical conduct “to the 

Department of Real Estate.” In the withdrawal 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 counsel’s time, and stated that it 
14

would seek to intervene in the 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: “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 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 time to give you an opportunity to cure.” 

 Lest every prelitigation settlement demand be deemed extortion, the Flatley Court 

cautioned that its “conclusion that Mauro’s communications 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 victim 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 the 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 may include threats to file a lawsuit, report 

criminal behavior to authorities or publicize allegations of wrongdoing, necessarily 

constitute extortion.” (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.) Accordingly, cases 

following Flatley have concluded that prelitigation threats similar to those made in the 

withdrawal letter are protected activity. (See, e.g., Feldman v. 1100 Park Lane 

Associates (2008) 160 Cal.App.4th 1467, 1481 [landlord’s prelitigation threats to tenants, 

including demanding rent above lease amount, commencing action after consultation 

with a federal judge and warning 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, Charon and Segal have not conceded, nor did any evidence 

conclusively establish, that their protected activities constituted illegal extortion. The 

withdrawal letter is unlike the demand letter in Mendoza v. Hamzeh (2013) 215 

Cal.App.4th 799, 807, which the 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 aware, 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 uncovered 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 proceed with filing a legal action against him, as 

well as reporting him to the California Attorney 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 the attorneys’ threat to report criminal 

conduct to applicable enforcement agencies and others, coupled with the demand for the 

payment of money, constituted 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 report 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 basis for Peachtree’s and Jensen’s malicious prosecution 

complaint. Rather, the complaint was based on the filing and prosecution of the 

complaint and first amended complaint in the underlying fraud action. “In general, 

whether a cause of action is subject to a motion 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 on 
16

nonincidental protected activity as well as nonprotected 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 satisfied 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 established that Peachtree’s and Jensen’s malicious 

prosecution complaint arose out of activity protected 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 probability of prevailing, “the plaintiff ‘must demonstrate that 

the complaint is both legally sufficient and supported by a sufficient prima facie showing 

of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is 

credited.’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 

821.) 

In order to show a probability 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) initiated 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 a 
17

probability of prevailing on even one element, the trial court must grant the motion to 

strike, as it did here. 

1. Peachtree failed to show it received a favorable termination on 

the merits. 

Charon’s initial complaint in the underlying fraud action alleged several causes of 

action against both Peachtree and 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 overruled the demurrer to the extent it argued the 

complaint was barred by the statute of limitations 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 defendant. Consequently, in January 2010, the 

trial court dismissed the complaint with prejudice 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 Peachtree failed to establish its dismissal from the 

underlying fraud action constituted a favorable termination on the merits.4

“In order for the termination of a lawsuit 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 reasons underlying the termination 

must be examined to see if the termination reflects the opinion of either the court or the 

prosecuting party that the action would not succeed. [Citation.]” (Pender v. Radin 

(1994) 23 Cal.App.4th 1807, 1814.) “If the resolution of the underlying 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 found Peachtree’s malicious prosecution claim 

accrued in January 2010 and ruled Peachtree could not prevail 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 demonstrate a probability of prevailing. 
18

and bars that party from bringing a malicious prosecution action against the underlying 

plaintiff.’ [Citation.]” (Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855.) 

Though Peachtree maintains that 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, 893–894, explained: “‘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.] A voluntary 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 reflect 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 dismissal 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 successful. The trial court sustained Peachtree’s demurrer with 

leave to amend, thereby leaving open the possibility that Charon’s claim could succeed. 

There was no evidence—including in Jensen’s declaration submitted in opposition to 

Charon’s and Segal’s special motion to strike—to show that the Attorneys or Charon 

 

5 The cases Peachtree cites are not even relevant to let alone supportive of its point. 

(See Kyle v. Carmon (1999) 71 Cal.App.4th 901, 909 [plaintiff 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 [dismissal with prejudice of municipal court 

action operated as res judicata barring superior court action].) 
19

failed to include Peachtree in the first amended complaint because they opined the claim 

would not succeed. We agree with the trial court “[t]he evidence presented is insufficient 

to determine that the claims against Peachtree Financial and the decision to remove 

Plaintiff as a defendant in the underlying litigation were based 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 termination was based on 

evidence reasonably suggesting the plaintiff’s dismissal occurred because the claims 

lacked merit; the evidence included the plaintiff’s failure to appear for two depositions 

and discovery responses indicating she sustained no damage. (Id. at pp. 1400–1401.) 

Because Peachtree failed to make such an evidentiary showing, it could not demonstrate a 

probability of prevailing on one of the essential elements of its malicious prosecution 

claim.6

 2. Jensen failed to show the Attorneys and Charon lacked probable 

cause to file and litigate the first amended complaint. 

 With respect to Jensen, we find dispositive the evidence showing probable cause 

to initiate and prosecute the underlying fraud action. For that reason, we will address the 

element of probable cause first and exclusively. (See Antounian v. Louis Vuitton 

Malletier (2010) 189 Cal.App.4th 438, 448 [resolving probable cause element first for 

purposes of anti-SLAPP motion].) The central 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. This element requires the court to make an 

objective determination as to the reasonableness of the defendant’s conduct to ascertain 

whether, on the facts known to the defendant, institution of the prior action was 

 

6 In light of our conclusion Peachtree did not show a probability of success on the 

favorable termination element of malicious prosecution, 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 under the facts known to him.” (Sangster v. Paetkau

(1998) 68 Cal.App.4th 151, 164–165.) “Only those actions that any reasonable attorney 

would agree are totally and completely without 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 advanced in the underlying suit. (Crowley v. Katleman 

(1994) 8 Cal.4th 666, 678–679.) “If the court determines that there was probable cause to 

institute the prior action, the malicious prosecution action fails, whether or not there is 

evidence that the prior suit was 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 prosecution 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, multiple interim rulings demonstrated that the 

Attorneys and Charon had probable cause to bring and pursue the first amended 

complaint in that action. Initially, 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.4th 313, 365 [applying SwatFame to the denial of a motion to dismiss in federal court, and characterizing Swat-Fame 

setting forth a “sound rule, . . . consistent with the principle that ‘[c]laims that have 
21

succeeded at a hearing on the merits . . . are not so lacking in potential merit that a 

reasonable attorney or litigant would necessarily have recognized their frivolousness’”].) 

 Following the demurrer ruling, the trial court denied Jensen’s motion for summary 

judgment. While the interim adverse judgment rule first provided that a victory at trial 

reversed on appeal sufficed to establish probable 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 triable issue exists, or of a nonsuit, while 

falling short of a determination of the merits, 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 verdict . . . . [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 ultimately prevail.” (Accord, Hutton v. Hafif (2007) 150 

Cal.App.4th 527, 550 [it is a “well-established rule of law applicable to a malicious 

prosecution complaint that the denial of a summary judgment motion in the underlying 

action establishes probable cause to file that lawsuit”]; Roberts v. Sentry Life Insurance 

(1999) 76 Cal.App.4th 375, 384 [“denial of defendant’s summary judgment in an earlier 

case normally establishes there was probable cause to sue, thus barring a later malicious 

prosecution suit”].)7

 Finally, at the conclusion of the evidence during the trial in the underlying fraud 

action, the trial court denied Jensen’s motion for nonsuit. She argued there was 

 

7 Because the summary judgment ruling addressed only whether the statute of 

limitations barred the action, the trial court 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 technical grounds, rather than for existence 

of triable issues of material fact, says nothing regarding the potential merit of the action 

and hence does not establish 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 rulings that involved the claims’ merits. 
22

insufficient evidence to support 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 underlying fraud action, as the denial of a motion 

for nonsuit “is tantamount to a judicial declaration 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 for 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 judgment 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 opposition, equating denial with probable cause 

might be wrong”].) The “fraud exception” requires both “‘“knowing use of false and 

perjured testimony”’” and a showing that the interim ruling would not have been made 

“but for” the use of the false evidence. (Antounian v. Louis Vuitton 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 election not to include the trial 

court’s evidentiary rulings as part of her appendix does not change their effect. The trial 

court sustained all but one of the Attorneys’ 15 evidentiary objections to her and Carl’s 

declarations, which effectively struck the entire declarations 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 challenged the evidentiary rulings on appeal. Consequently, we 

deem any issue concerning those rulings to have been waived and find the evidence was 
23

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 connection with the interim rulings, 

Jensen cannot meet her burden to overcome the 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 included Segal’s claim that Jensen concealed the 

existence of the Silver action from him, concealed the existence of the lis pendens 

recorded by Silver against the Cass property and concealed her obtaining a line of credit 

against the Cass property. That testimony, however, was already considered by the jury 

in the underlying fraud action. Though Jensen seeks to characterize Segal’s testimony as 

false, the jury concluded otherwise, 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 disclose an important fact that Charon Solutions, Inc. did not 

know and could not reasonably have discovered.” 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 finder 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 adversely 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].) Thus, the testimony cited by Jensen cannot 

support application of the fraud exception. Moreover, Jensen’s failure to demonstrate 

that Segal knowingly used false or perjured 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 interim 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 the underlying fraud action because it lacked standing to bring 

claims for injuries suffered 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.] ‘Generally, “the person 

possessing the right sued upon by reason of the substantive law is the real party in 

interest.” [Citations.]’ [Citation.] To have standing, a party must be beneficially 

interested in the controversy, and have ‘some special interest to be served or some 

particular right to be preserved or protected.’ [Citation.] This interest must be concrete 

and actual, and must not be conjectural or hypothetical. [Citation.]” Lack of standing is 

a jurisdictional defect that mandates 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 lack 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 negate the favorable termination 

element of Jensen’s malicious prosecution claim. (See Ludwig v. Superior Court (1995) 

37 Cal.App.4th 8, 26, fn. 30 [“we question whether even a dismissal based on any lack of 

standing or exhaustion of administrative 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 cause 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 demonstrate a probability of prevailing 
25

on one of the critical elements of her malicious prosecution claim, 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 may 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 amended complaint in the underlying 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 probability of prevailing on all three malicious 

prosecution elements as to those parties. In connection with the Attorneys’ special 

motion to strike, however, the trial court ruled 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 the trial court’s conclusion that they could 

not establish a probability of prevailing against Shrenger on the unjust enrichment and 

declaratory relief claims alleged 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 have raised multiple arguments in support 

of and in opposition to Jensen’s position that 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 grounds it will rest its decision 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 ruled Jensen could not establish a probability of 

prevailing for her failure to offer evidence of malice in connection with the conversion 

claim alleged in the first amended complaint, explaining that claim was not part of the 

motion for nonsuit. The trial court made no such 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 that the motion for nonsuit was not directed to all claims 

alleged in the first amended complaint. 
26

motive of the defendant must have 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 open hostility to indifference. 

[Citation.]” (Downey Venture v. LMI Ins. Co (1998) 66 Cal.App.4th 478, 494.) 

 Shrenger represented Charon when it filed the original complaint against 

Peachtree and Jensen in December 2009.10 Approximately three months later, he moved 

to be relieved as counsel and ultimately substituted 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 facts as provided to him by 

Segal, he had no reason to know that any 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 business litigation experience. He further 

averred that he had no knowledge of Peachtree or Jensen before being retained by 

Charon, and he bore no “ill will or malice towards either of these parties.” He stated that 

his “sole intention in drafting and filing the Complaint was to obtain the redress for 

CHARON which, based upon the information that 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 evidence 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 file 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 harming 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 legal tenability, an attorney is 

entitled to rely on the information provided by his or her client, unless the attorney is on 

notice of specific factual errors or misstatements in the client’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 Jensen 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 insufficient 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 their 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 averring that he represented the 

Marcin Lambirth attorneys in defending against Peachtree and Jensen’s malicious 

prosecution action and drafted the anti-SLAPP motion. Attached to his declaration were 

copies of the invoices he submitted to the Marcin Lambirth attorneys. Before the hearing 

on the anti-SLAPP motion, he had substituted out of the action, and Feenberg and Cole 

thereafter represented the Marcin 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 listed as an attorney on the firm’s Web site, 

he appeared in firm photographs on the Web site, a local Bar Association article 

 

11 Shrenger and Miller also moved for attorney fee awards, but they have not 

challenged the trial court’s rulings on their motions. 
28

described Murad as a firm associate, a publication from the same local Bar Association 

provided a Marcin Lambirth e-mail address for Murad, both Marcin 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 Lambirth attorneys reduced their fee request to $31,423.22 for 

an unrelated and inadvertent inclusion of attorney time. They also 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 the capacity of an independent 

contractor. Murad declared that he had been an associate at Marcin Lambirth from 

October 2007 to October 2008 and thereafter became of counsel to the firm; since 2009 

he was compensated by the firm as an independent 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 associate 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 balance of the motion. It ruled 

that Marcin Lambirth’s evidence was insufficient to show the actual relationship between 

Murad and the firm beyond Murad’s of counsel status. More specifically, there was no 

evidence offered to show that Marcin Lambirth was required to pay fees to Murad, that 

Murad and Marcin Lambirth had an attorney-client relationship or that Murad’s business 

was to represent his own individual clients 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 recover his or her attorney’s fees and costs.” The 

California Supreme Court has therefore instructed that “any SLAPP defendant who 

brings a successful motion to strike is entitled to mandatory attorney 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 professional 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. EOP-Marina Business Center, L.L.C. (2007) 153 

Cal.App.4th 977, 981.) 

 In determining whether attorney fees have been incurred for the purpose of awards 

under section 425.16, subdivision (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 litigant, it is represented by ‘of counsel.’” 

The Sands court premised its conclusion “on two well-settled principles. First, when a 

law firm is the prevailing party in a lawsuit and is represented by one of its partners, 

members, or associates, it cannot recover attorney 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 ‘“close, personal, continuous, and regular.”’ 

[Citation.] ‘“[T]o the extent the relationship between [an attorney] or law firm and 

another [attorney] or law firm is sufficiently ‘close, personal, 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 [avoiding the representation of 

adverse interests].”’ [Citations.]” (Id. at pp. 1272–1273.) 
30

 Here, the evidence was undisputed that Murad was of counsel to Marcin Lambirth 

at the time he represented the firm in connection with the malicious prosecution action. 

Marcin averred “Mr. Murad has been ‘of counsel’ to Marcin Lambirth, LLP, and has 

been an independent contractor with Marcin Lambirth, LLP, since October 2008.” 

Murad similarly declared that “[s]ince October 2008, I have been ‘Of Counsel’ to Marcin 

Lambirth, LLP, and I have been an independent 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 directories that the two attorneys were of counsel, and the court 

concluded “it does not matter that they may have represented clients obtained through 

their own efforts, that they had what they call a ‘separate’ practice, 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 Juknavorian, 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 Counsel constituted a ‘single, de facto firm’ 

[citation], an attorney-client relationship did not exist between them. [Citations.]” (Id. at 

p. 1297.) 

 Though the Marcin Lambirth attorneys argue the evidence was insufficient to 

show that Murad remained associated 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 controlling. “[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 facto firm, and thus a law firm cannot recover 

attorney fees under a prevailing party clause 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 Jensen’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-complaint arose from protected 

activity and Charon and Segal failed 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-complaint in the 

underlying fraud action established 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 remaining claims for breach of fiduciary duty, 

fraud, negligence and declaratory relief which 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 Charon 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 “representations of his experience and expertise in the 

development and construction fields, and his representation of his knowledge and 

proficiency in dealing with governmental entities,” 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 Agreement and, in furtherance of 

 

12 The trial court sustained the demurrer without leave to amend as to the breach of 

fiduciary duty claim against Segal. 
32

that agreement, Jensen and Segal entered into an oral agreement whereby Segal would 

employ his services to obtain a lot split of the Cass property. Upon completion of the lot 

split, a portion of the Cass property would be conveyed to P&P for development. 

Peachtree alleged that it and Jensen performed the terms of the P&P Operating 

Agreement and the oral agreement, but that Segal failed to competently pursue the lot 

split and to achieve the lot split, and in turn caused Charon 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 real estate development, failing to further P&P’s interests by 

making the required governmental submissions, failing to seek project approval from 

neighboring property owners and failing to advise 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 justifiably relied on his representations about his real 

estate expertise, that Segal knew such representations were false and that Jensen 

expended money in reliance on such representations. The fourth cause of action for 

negligence against Charon and Segal reiterated 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 demurrers without leave to amend to all causes 

of action except breach of contract against Charon. After the trial court denied Charon’s 

motion for summary judgment, that claim went to trial and the jury answered “No” to the 

special verdict question “[d]id Charon Solutions, 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 first 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 concealing material documents which had been part 
33

of her architect’s file and showed the conditions she claimed Segal failed to satisfy had 

been approved. 

B. Charon and Segal Failed to Demonstrate a Probability of Prevailing. 

 Because there is no question that the malicious prosecution cross-complaint arose 

from protected activity, we proceed directly to the second prong of the anti-SLAPP 

motion and determine whether Charon 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 those defenses. [Citation.]” (Ramona Unified School Dist. v. 

Tsiknas (2005) 135 Cal.App.4th 510, 519.) “[T]he plaintiff cannot rely on the allegations 

of the complaint, but must produce evidence that would be admissible at trial. 

[Citation.]” (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 

515, 527.) The plaintiff’s showing must be “made through ‘competent and admissible 

evidence.’ [Citations.] Thus, declarations that lack foundation or personal knowledge, or 

that are argumentative, speculative, 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 and 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-complaint. Because we find the advice of counsel defense 

dispositive, we need not address the other probable cause arguments 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 proceeding when they prove that 

they have in good faith consulted a lawyer, have stated all the facts to him, have been 

advised by the lawyer that they have a good cause of action and have honestly acted upon 
34

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 the complaint in the underlying fraud action, she engaged 

attorney Alan Carnegie (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 determination, Jensen made a full disclosure to Carnegie of all 

favorable and unfavorable facts known to her related to the matters alleged in the 

underlying fraud action and provided him with all documents in her possession or control 

concerning those matters. Jensen’s declaration outlined a number of specific facts 

disclosed to Carnegie concerning Jensen’s discussions with Segal about the proposed lot 

split of the Cass property. She declared: “Based 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-complaint 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 that cross-complaint on behalf of Peachtree.” 

Jensen made similar representations in connection with the filing of the first amended 

cross-complaint, averring that she relied on his advice in filing that pleading. Further 

according to her declaration, Jensen outlined the discovery in which she engaged and 

stated that Carnegie continued to advise her throughout that 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 fact 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 counsel, after truthful disclosure of all the 

relevant facts, is a complete defense to a malicious prosecution claim. [Citation.]” 

(Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1544 

(Bisno).) Jensen’s declaration was sufficient to raise the defense. As in Bisno, her 
35

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 duty of disclosure on one relying on an advice 

of counsel defense, rejecting the notion that the client is obligated to point out particular 

contract provisions that may be detrimental to its position or provide documents that offer 

nothing more than cumulative information. (Id. at pp. 1547–1549.) 

Against this defense, Charon and Segal failed to offer admissible evidence to 

demonstrate a probability of prevailing. To meet its burden on the second prong of an 

anti-SLAPP motion, the plaintiff opposing the motion must show 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 negate 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 present a substantive defense a plaintiff must 

overcome to demonstrate a probability of prevailing”]; Weil Brown, Cal. Practice Guide: 

Civil Procedure Before Trial (The Rutter 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.App.4th 953, 969; Premier 

Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 

Cal.App.4th 464, 477), reliance on advice of counsel 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 general denial”]). Accordingly, for the purpose 

of the motion to strike, Charon and Segal ultimately bore the burden of negating the 

advice of counsel defense. 
36

In an effort to meet their burden, Charon and Segal objected to the portions of 

Jensen’s declaration that addressed her advice of counsel defense; the trial court 

overruled all objections. On appeal, they maintain the trial court abused its discretion 

because Jensen’s statements were hearsay and conclusory. We find no basis to disturb 

the trial court’s rulings. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385 

[“Evidentiary rulings will not be overturned on appeal in the absence of a clear abuse of 

that discretion, upon a showing that the trial court’s decision was palpably arbitrary, 

capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a 

miscarriage of justice”].) Jensen’s statements concerning 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 therefore not made inadmissible by the 

hearsay rule. (Evid. Code, § 1250, subd. (a)(2).) Moreover, the statements were not 

conclusory, as the level of specificity was similar to statements 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.) Charon’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 matters were covered by the work product rule 

did not constitute evidence. 

Charon and Segal also challenged the sufficiency 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 testimony 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.App.4th 1108, 1117 

[“when an expert’s opinion is purely conclusory because unaccompanied by a reasoned 

explanation connecting the factual predicates to the ultimate conclusion, that opinion has 

no evidentiary value because 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 [characterizing attorney declarations as 

“back[ing] up” the plaintiff’s advice of counsel 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 cloak 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 deposition 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 response 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 receiving an ex parte notice of a 

motion to compel, Carnegie 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 generated 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 complete was now satisfied.14

 

14 Although the trial court sustained Peachtree and Jensen’s objections to the 

statements in Segal’s declaration on this point, it overruled their objections to 

Ashkinadze’s declaration and the exhibits attached to Segal’s declaration that addressed 

the same issue. 
38

We fail to see how this evidence undermines Peachtree and Jensen’s advice of 

counsel defense. In order to rely on the defense, the malicious 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 favorable to Charon and Segal, the 

evidence showed Jensen attempted to conceal 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-complaint 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 alleged that Charon and Segal incurred 

liability on the basis of making misrepresentations, failing to fulfill their duties and 

breaching promises in connection with the lot split that was proposed before 2006 when 

Charon withdrew from P&P. The 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 success in overcoming Peachtree and Jensen’s 

advice of counsel defense, the trial court properly granted the special motion to strike. 

(See, e.g., Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 

[“There is perhaps no rule of review more firmly 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 applicable to the case, the 

judgment will be sustained regardless of the considerations 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 for attorney fees and granting Peachtree’s and Jensen’s 

motion to strike are affirmed. All parties 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.