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Filed 1/19/21 Pesci v. Hobbs CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT

DIVISION THREE

CHERYL PESCI et al.,

Plaintiffs and Appellants, 

v.

CAITLYN HOBBS et al.,

Defendants and Respondents.

G059073

(Super. Ct. No. 30-2019-01074366) 

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Nathan R. 

Scott, Judge. Affirmed.

Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiffs and

Appellants.

Murchison & Cumming, Lisa D. Angelo and Matthew E. Voss for

Defendants and Respondents.
2

Cheryl Pesci (Cheryl), Patti Johnson, and Marianne Klee (Plaintiffs) appeal 

from the trial court’s order granting Laura Zamora, Caitlyn Hobbs, and Keith Salek’s 

(Defendants) special motion to strike1a malicious prosecution cause of action. Plaintiffs 

argue the court erred by concluding they did not demonstrate a probability of prevailing. 

We disagree and affirm the order.

FACTS

Robert Pesci (Robert), a nonagenarian, suffered from advanced dementia.

Plaintiffs are three of Robert’s children who handled his affairs. Jim Pesci (Jim), 

Plaintiffs’ brother, resided with his father, Robert. Laura Zamora was an employee of 

Compassionate Heart Senior Care, Inc. dba Home Instead Senior Care Franchise #35 

(Home Instead). Home Instead assigned Zamora to care for Robert at his home. Home 

Instead advertised it provided caregivers who were trained to care for patients suffering 

from dementia, but Zamora was not trained to do that.

The origin of this litigation was an incident Defendants claimed occurred 

when Zamora was caring for Robert one evening while Jim was away. Zamora alleged 

Robert “intentionally” fell to the ground. When Zamora tried to help Robert, her 

attorneys alleged in the complaint that he “sexually molested her.”

Zamora retained Salek and Hobbs to represent her. They filed a complaint 

against Robert, Jim, Home Instead, and its parent company alleging 15 causes of action, 

including sexual battery and assault, hostile work environment, and wrongful discharge. 

Robert could not remember anything, and Plaintiffs were distraught over the allegations 

against their father and brother. Cheryl was appointed Robert’s guardian ad litem.

1 A special motion to strike is also known as an anti-SLAPP (Strategic 

Lawsuit Against Public Participation) motion. (Code Civ. Proc., § 425.16, all further 

statutory references are to the Code of Civil Procedure; Sweetwater Union High School 

Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 938, fn. 5 (Sweetwater).)
3

Robert’s homeowner’s insurance provider denied coverage because the alleged 

misconduct was intentional. Plaintiffs used their own funds to hire an attorney to 

represent Robert and Jim.

At Zamora’s deposition, she explained how on the night in question, Robert 

fell, she tried to help him up, and he grabbed her arm tightly, but she could not help him 

up. He eventually got up on his own. Robert, who was angry, made inappropriate sexual 

comments to her as he had once before. At some point, Robert fondled himself. She 

never claimed Robert sexually assaulted her, and she admitted she never called the 

police. Less than two weeks after Zamora’s deposition, Defendants dismissed the case 

with prejudice.

Plaintiffs, Robert, and Jim filed a complaint against Defendants for 

malicious prosecution, fraud, and elder abuse. Defendants filed a special motion strike. 

Plaintiffs filed an opposition. The trial court denied the special motion to strike as to 

Robert and Jim, but granted it as to Plaintiffs. The court reasoned Defendants 

demonstrated the malicious prosecution action arose from protected conduct. The court 

opined Robert and Jim demonstrated a probability of prevailing on their malicious 

prosecution cause of action but Plaintiffs did not because they were not parties to the 

action, and thus, it was not resolved in their favor.

DISCUSSION

“Resolution of an anti-SLAPP motion involves two steps. First, the 

defendant must establish that the challenged claim arises from activity protected by 

section 425.16. [Citation.] If the defendant makes the required showing, the burden 

shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of 

success.” (Sweetwater, supra, 6 Cal.5th at p. 940.) “In making its determination, the 

court shall consider the pleadings, and supporting and opposing affidavits stating the 

facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) Our review 

is de novo. (Sweetwater, supra, 6 Cal.5th at p. 940.)
4

I. First Prong

To make a showing under the first prong, the defendant must establish the 

cause of action arises from protected activity. (Park v. Board of Trustees of California 

State University (2017) 2 Cal.5th 1057, 1067; § 425.16, subd. (e).) Here, Plaintiffs do not 

dispute their malicious prosecution cause of action arises from protected activity and 

section 425.16 applies. Thus, we proceed to the second prong to determine whether they 

demonstrated a probability of prevailing.

II. Second Prong

If the defendant satisfies the first prong, the burden shifts to the plaintiff to 

establish the claim’s merit by demonstrating “there is a probability that the plaintiff will 

prevail on the claim.” (§ 425.16, subd. (b)(1).) The plaintiff must demonstrate each 

cause of action is both legally sufficient and supported by a prima facie showing of facts 

sufficient to support a judgment. (Navellier v. Sletten (2002) 29 Cal.4th 82, 93.) “A 

plaintiff must plead and prove three elements to establish the tort of malicious 

prosecution: a lawsuit ‘(1) was commenced by or at the direction of the defendant and 

was pursued to a legal termination favorable to the plaintiff; (2) was brought without 

probable cause; and (3) was initiated with malice.’ [Citation.]” (Nunez v. Pennisi (2015) 

241 Cal.App.4th 861, 872-873, italics added.)

Here, Plaintiffs failed to demonstrate a probability of prevailing on their 

malicious prosecution cause of action. The underlying action was not pursued to a legal 

termination favorable to Plaintiffs. Plaintiffs were not parties to the underlying action. 

Defendant’s 15-count complaint was against Robert, Jim, and Home Instead. It did not 

name Plaintiffs. Recognizing there is no case law supporting the conclusion they have 

standing, but countering there is no case law precluding it, Plaintiffs resort primarily to 

public policy.

Plaintiffs rely on several cases to advance their policy argument. (Gregory

v. Cott (2014) 59 Cal.4th 996, 999-1000 [whether Alzheimer patients liable for injuries
5

they inflict on health care workers]; Marlene F. v. Affiliated Psychiatric Medical Clinic, 

Inc. (1989) 48 Cal.3d 583, 591 [negligent infliction of emotional distress causes of action 

arising from family member’s molestation]; Molien v. Kaiser Foundation Hospitals 

(1980) 27 Cal.3d 916, 923 [loss of consortium and negligent infliction of emotional 

distress causes of action arising from family member’s misdiagnosis]; Dillon v. Legg 

(1968) 68 Cal.2d 728, 746 [bystander liability in negligence action arising from family 

member’s death].) None of these cases, however, concerned section 425.16 or a 

malicious prosecution cause of action. We decline Plaintiffs’ invitation to afford 

standing in a malicious prosecution case in the section 425.16 context to those who were 

not parties to the underlying litigation.

DISPOSITION

The order is affirmed. Respondents are awarded their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.