Filed 7/16/15 Yoon v. Jeju Special Self-Governing Province Development Corp. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 SIX

DONNA HYUNBIN YOON,

 Plaintiff and Appellant,

v.

JEJU SPECIAL SELF-GOVERNING 

PROVINCE DEVELOPMENT CORP.,

 Defendant and Respondent.

2d Civil No. B255584

(Super. Ct. No. CIV 56-2013-00441980-

CU-BT-VTA)

(Ventura County)

Appellant Donna Hyunbin Yoon prevailed in a breach of contract action 

filed by Jeju Provincial Development Corp. (JPDC), the predecessor in interest to 

respondent Jeju Special Self-Governing Province Development Corp.1 Yoon sued JPDC 

for malicious prosecution. The trial court granted JPDC's motion to strike the complaint 

under the anti-strategic lawsuit against public participation (anti-SLAPP) statute, Code of 

Civil Procedure section 425.16.2 It determined Yoon had failed to demonstrate a 

probability of prevailing on her claim. 

Yoon contends the trial court abused its discretion by sustaining all of 

JPDC's objections to her evidence. She asserts she presented sufficient admissible 

 

1 For ease of reference, we also refer to respondent as JPDC. 

2 All statutory references are to the Code of Civil Procedure.
2

evidence from which it can be inferred that JPDC filed the underlying action without 

probable cause and with malice, two of the elements necessary to prevail on a malicious 

prosecution claim. We conclude the court improperly excluded the deposition testimony 

of three of JPDC's employees in the underlying action (see § 2025.620, subds. (a), (b), 

(g)), and that this evidence satisfies Yoon's burden of demonstrating a probability of 

prevailing on her claim. We reverse and remand. 

FACTS AND PROCEDURAL BACKGROUND

Yoon operated an export business in California, known as ANA Export 

Company (ANA). She had a business relationship with the government of Jeju, South 

Korea, which is an autonomous island province known for its orchids. When the 

government purchased a nursery in Somis to cultivate Jeju orchid seedlings for sale in the 

United States, it formed American Cheju Trading Co. (ACTC) to manage the nursery. 

Yoon became ACTC's exclusive United States orchid distributor. 

In January 2004, JPDC succeeded ACTC as the nursery's management 

company. Yoon continued to purchase orchids from JPDC until August 2005, when 

JPDC demanded $66,453.50 for unpaid July and August invoices. Yoon claimed she was 

entitled to a credit for unfilled orders and un-saleable orchids. The business relationship 

ended on September 1, 2005, when Yoon made a final $28,198 payment. 

JPDC Sues Yoon; Yoon Cross-Complains

A year later, JPDC sued Yoon for breach of contract, goods sold and 

delivered and open book account, claiming she owed $120,271.65 for prior orchid 

purchases. Soo Nam Ko, who was in charge of the nursery, retained attorney John Choi 

to file the action. Before the original trial date, Choi moved to be relieved as JPDC's 

counsel. He declared that "[t]he attorney-client relationship has broken down for the 

following reasons: The client failed to inform me of material facts regarding this case 

and my initial evaluation was incorrect. Information recently disclosed, including 

deposition testimony taken approximately one week from the date of this declaration, has 

substantively altered my view of this case and I can no longer discharge my duties 
3

faithfully to the client and respectfully request that the Court relieve me of further 

representation." The motion was granted. 

One of JPDC's managers, Bang Eun Kim, testified during his deposition 

that Yoon was overcharged for orchid purchases between January and August 2004 and 

that he had proposed to offer her approximately 9,000 free plants to compensate for the 

overcharges. Ko testified during his deposition that in August 2005 he prepared and sent 

a letter (exh. 54) to Yoon which stated she owed $66,453.50 for July/August deliveries. 

The letter included an invoice summary for sales between April and August 2005. The 

summary reflected a zero balance as of June 29, 2005, and 26 purchases after that date 

totaling $66,453.50. 

Another JPDC employee, Ik Heo, testified during his deposition that JPDC 

and Yoon settled the account on September 1, 2005. He identified a $28,198 check 

signed by Yoon as the "check that was given to settle the account." At the bottom of the 

check, Yoon wrote, "zero balance as of 8-31-05." A few months after that "transaction 

was over," Ko prepared an aging statement for Yoon's account (exh. 50). Unlike the 

earlier invoice summary, this statement reflected a balance due of $120,271.65. 

The bench trial lasted 21 days, primarily due to translation issues. Judge 

Frederick H. Bysshe entered judgment for Yoon on both the complaint and crosscomplaint, awarding her $394,013 in damages for JPDC's breach of their exclusive 

distributorship agreement. Judge Bysshe concluded that Yoon's $28,198 payment 

constituted an accord and satisfaction of JPDC's claims. He stated: "[T]his is not one of 

those difficult cases shaded in gray where there are disputes based upon innocent misrecollection, but rather [it is] one in sharp contrasts of black and white where there is a 

series of significant controversies in which one side's witnesses and evidence represent[]

the essential truth of what occurred and the other side is distorting the truth by lies and 

deception." We affirmed the judgment. (JPDC v. Yoon (July 25, 2011, B221819) 

[nonpub. opn.].) The remittitur issued on September 27, 2011. 
4

Yoon Sues for Malicious Prosecution

On September 12, 2013, Yoon filed this action for malicious prosecution. 

JPDC filed an anti-SLAPP motion supported by declarations from Ko and the current 

nursery manager. They declared that the underlying action was the result of a business 

decision to collect an outstanding debt. Yoon opposed the motion and filed evidentiary 

objections to the declarations. JPDC, in turn, objected to most of the evidence submitted 

by Yoon, including Judge Bysshe's statement of decision, Choi's declaration seeking to 

be relieved as counsel and deposition testimony given by Yoon, Kim, Ko and Heo in the 

underlying action. 

The day after JPDC's objections were filed, Yoon submitted evidence to 

cure certain evidentiary defects identified by JPDC. When the matter was heard a week 

later, the trial court stated: "There are a lot of objections that have been made on both 

sides. I haven't gotten to those. I'm going to take this under submission." 

The trial court issued an order and judgment granting the anti-SLAPP 

motion and awarding $7,600 in attorney fees to JPDC. Sustaining all of JPDC's 

evidentiary objections, the court found that Yoon had failed to meet her burden of 

submitting admissible evidence sufficient to establish malice and lack of probable cause. 

It determined that she had raised a "colorable argument" that the deposition testimony of 

Kim, Ko and Heo is admissible under section 2025.620, subdivisions (b) and (g), but 

failed to demonstrate they were employees of JPDC when they were deposed. The court 

recognized that Yoon "attempt[ed] to cure these problems by submitting a 'sur reply,'" but 

rejected it as untimely. Yoon appeals. 

DISCUSSION

The Anti-SLAPP Statute and Standard of Review

"Section 425.16 provides an expedited procedure for dismissing lawsuits 

that are filed primarily to inhibit the valid exercise of the constitutionally protected rights 

of speech or petition." (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1292.) "The 

purpose of the anti-SLAPP statute is to encourage participation in matters of public 

significance and prevent meritless litigation designed to chill the exercise of First 
5

Amendment rights. (§ 425.16, subd. (a).)" (Digerati Holdings, LLC v. Young Money 

Entertainment, LLC (2011) 194 Cal.App.4th 873, 883.)

To assess whether dismissal is required under section 425.16, the court first 

must determine if the lawsuit falls within the scope of the anti-SLAPP statute. (Zucchet 

v. Galardi (2014) 229 Cal.App.4th 1466, 1476.) A cause of action is governed by this 

statute if it arose from activities that were in furtherance of the moving party's free speech 

or petition rights. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc.

(2002) 29 Cal.4th 53, 67.) Once this prong is met, the burden shifts to the opposing party 

to demonstrate "a probability of prevailing on the claim." (Navellier v. Sletten (2002) 29 

Cal.4th 82, 88 (Navellier).) 

Yoon concedes that her malicious prosecution claim necessarily arises from 

constitutionally protected activity, i.e, the filing of the underlying lawsuit (Jarrow 

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734, 735), and that she has the 

burden of demonstrating a probability of prevailing on her claim. She further 

acknowledges that to make this showing, she must submit evidence that would be 

admissible at trial. (Greene v. Bank of America (2013) 216 Cal.App.4th 454, 457-458; 

Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 

Cal.App.4th 1138, 1147 (Fashion 21) ["'admissible evidence' for purposes of the SLAPP 

statute is evidence which, by its nature, is capable of being admitted at trial, i.e., evidence 

which is competent, relevant and not barred by a substantive rule"].) Nonetheless, the 

"burden of establishing a probability of prevailing is not high: We do not weigh 

credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all 

evidence favorable to the plaintiff and assess the defendant's evidence only to determine 

if it defeats the plaintiff's submission as a matter of law." (Overstock.com, Inc. v. 

Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.) The plaintiff need only 

show a "minimum level of legal sufficiency and triability" (Linder v. Thrifty Oil Co.

(2000) 23 Cal.4th 429, 438, fn. 5), or a case of "'minimal merit.'" (Navellier, supra, 29 

Cal.4th at p. 95, fn. 11; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 824-825
6

(Wilcox), overruled on other grounds in Equilon Enterprises v. Consumer Cause, Inc., 

supra, 29 Cal.4th at p. 68, fn. 5.) 

Our review of the trial court's order on an anti-SLAPP motion is de novo. 

(Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047; Daniels v. Robbins (2010) 182 

Cal.App.4th 204, 214.) We review the court's ruling on evidentiary objections for abuse 

of discretion. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348, fn. 3; 

Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.) 

Exclusion of Evidence

To prevail on her malicious prosecution claim, Yoon must show that the 

underlying action was (1) commenced by or at the direction of JPDC and terminated in 

her favor, (2) brought without probable cause, and (3) initiated with malice. (Soukup v. 

Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292; Kurz v. Syrus Systems, LLC

(2013) 221 Cal.App.4th 748, 760.) It is undisputed that the underlying action was 

commenced by JPDC and pursued to a legal termination favorable to Yoon. To 

demonstrate that the action was brought without probable cause and with malice, Yoon 

submitted the deposition testimony of Kim, Ko and Heo taken in the underlying action, 

her own deposition testimony, Judge Bysshe's findings and Choi's declaration. Yoon 

contends the trial court improperly excluded this evidence as inadmissible hearsay, and 

abused its discretion by declining to consider the evidence she submitted to cure the 

evidentiary deficiencies identified in JPDC's objections. We conclude the court should 

have considered the curative evidence and, as a consequence, denied the anti-SLAPP 

motion. 

In Fashion 21, supra, 117 Cal.App.4th at page 1148, the trial court 

considered an unauthenticated videotape in deciding that the plaintiff had satisfied its 

burden of showing a probability of prevailing on its claim. The defendants argued this 

was error because the unauthenticated tape would be inadmissible at trial. (Ibid.) The 

Court of Appeal disagreed, stating "evidence that is made inadmissible only because the 

plaintiff failed to satisfy a precondition to its admissibility could support a judgment for 

the plaintiff assuming the precondition could be satisfied." (Ibid.) Noting the "high 
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probability [the plaintiff] would succeed in offering the videotape into evidence at trial,"

the court concluded the trial court did not commit reversible error. (Ibid.) Nonetheless, it 

admonished "trial courts in the future [to] handle rectifiable shortcomings in the evidence 

by offering the plaintiff a continuance, on conditions the court believes just, to show the 

predicate facts necessary to overcome the objection. Following this course will save a 

great deal of judicial and litigant time, effort and expense in both the short and long runs 

and allow the court to focus on the substantive merits of the plaintiff's cause of action 

rather than the procedural defects which can occur at this early motion stage but which 

may be easily cured." (Id. at pp. 1148-1149, italics added; see Malibu Committee for 

Incorporation v. Board of Supervisors (1990) 222 Cal.App.3d 397, 408 ["the law 

strongly favors important decisions being made on their merits"].) 

Although trial courts generally have broad discretion in ruling on 

evidentiary objections (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523), 

we agree that courts should refrain from excluding evidence on procedural grounds when 

the evidentiary deficiency may be easily cured and its exclusion will result in early 

dismissal of the case. (Fashion 21, supra, 117 Cal.App.4th at pp. 1148-1149.) Here, 

JPDC objected to the deposition testimony of Kim, Ko and Heo taken in the underlying 

action, claiming it is inadmissible under section 2025.620. Subdivision (g) of that statute 

states that "[w]hen an action has been brought in any court of the United States or of any 

state, and another action involving the same subject matter is subsequently brought 

between the same parties or their representatives or successors in interest, all depositions 

lawfully taken and duly filed in the initial action may be used in the subsequent action as 

if originally taken in that subsequent action." The underlying action involves the same 

parties and subject matter; therefore, the depositions in that action may be used as if 

originally taken in the current malicious prosecution action. (§ 2025.620, subd. (g).) In 

other words, the depositions may be treated as if they occurred in this case.3 (Ibid.) 

 

3 JPDC suggests, without discussion, that section 2025.620, subdivision (g), does 

not apply because Yoon failed to show that the deposition transcripts were "duly filed" in 

the underlying action. Section 2025.550, subdivision (a), states that "[t]he certified 

transcript of a deposition shall not be filed with the court. Instead, the deposition officer 
8

The trial court acknowledged that the depositions of Kim, Ko and Heo may 

be admissible under section 2025.620, subdivision (b), which allows "[a]n adverse party 

[to] use for any purpose, a deposition of a party to the action, or of anyone who at the 

time of taking the deposition was an . . . employee . . . of a party," regardless of whether 

the deponent is available to testify. (See Haluck v. Ricoh Electronics, Inc. (2007) 151 

Cal.App.4th 994, 1005.) The court declined, however, to consider the evidence because 

Yoon failed to show that Kim, Ko and Heo were employees of JPDC when they were 

deposed. 

The day after JPDC's evidentiary objections were filed, Yoon submitted 

evidence confirming that Kim and Heo were employed by JPDC at the time of their 

depositions. Based on the principles set forth in Fashion 21, we conclude the trial court 

should have considered this evidence. (Fashion 21, supra, 117 Cal.App.4th at pp. 1148-

1149.) The deficiency was cured promptly, the hearing was a week later, and the court 

did not rule on the objections until after the hearing. Moreover, although JPDC objected 

to the court's consideration of the evidence, it did not dispute that Kim and Heo were 

employees when they were deposed. Under these circumstances, the trial court's decision 

to exclude their deposition testimony on a procedural technicality constituted an abuse of 

discretion. (See Fashion 21, supra, at pp. 1148-1149.) 

Unlike Kim and Heo, Ko was not employed by JPDC at the time of his 

deposition. Yoon asserted in her response to the evidentiary objections that his testimony 

is admissible under section 2025.620, subdivision (a), which states that "[a]ny party may 

use a deposition for the purpose of contradicting or impeaching the testimony of the 

deponent as a witness . . . ." Ko's declaration, filed in support of the anti-SLAPP motion, 

states the underlying action was the result of a business decision to collect an outstanding 

debt. Presumably, Ko will give the same testimony at trial, and Yoon will be permitted 

 

. . . shall promptly transmit it to the attorney for the party who noticed the deposition." 

When a statute or rule prohibits the filing of deposition transcripts with the court, the 

transcript is "duly filed" when it has been delivered to the attorney for the party who 

noticed the deposition. (See In re Paramount Payphones, Inc. (Bankr. M.D.Fla. 2000) 

256 B.R. 341, 345-346.) Yoon's attorney submitted a declaration stating he took the 

depositions of Kim, Ko and Heo and received the transcripts. 
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to impeach that testimony with his deposition in the underlying action. (§ 2025.620, 

subd. (a).) Because the evidence is capable of being admitted at trial, we conclude that it, 

too, should have been considered. (Fashion 21, supra, 117 Cal.App.4th at p. 1147.) 

Given our de novo review, we must analyze whether consideration of this 

evidence compels a different result. In so doing, we do not consider Judge Bysshe's 

findings, Choi's declaration or Yoon's own deposition testimony. Yoon has presented no 

persuasive basis for admitting her deposition and, as a general rule, courts may not take 

judicial notice of hearsay statements in a court file, including factual findings. (Arce v. 

Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 484; Sosinsky v. Grant

(1992) 6 Cal.App.4th 1548, 1564-1569.) We need not reach these issues, however, 

because the deposition testimony of Kim, Ko and Heo is sufficient to satisfy Yoon's 

burden of showing malice and lack of probable cause, particularly when it is considered 

with the exhibits that they authenticated and which were admitted at trial. (See Navellier, 

supra, 29 Cal.4th at p. 95, fn. 11; Wilcox, supra, 27 Cal.App.4th at pp. 824-825.) 

Probability of Prevailing on Claim

"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.) The filing of a lawsuit that objectively lacks 

probable cause may be "circumstantial evidence" of malice (Cole v. Patricia A. Meyer & 

Associates, APC (2012) 206 Cal.App.4th 1095, 1113-1114 (Cole)), but it is not enough 

by itself to prove malice. A malicious prosecution plaintiff must adduce "additional 

proof" that the earlier action was (1) "knowingly brought without probable cause" (ibid.; 

Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407-1408 

[subjective awareness of meritlessness]); (2) "instituted largely for an improper purpose"

(Cole, at pp. 1113-1114); or (3) "brought to force a settlement unrelated to its merits"

(ibid.; see Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1544). 

The complaint in the underlying action alleged that "[w]ithin two years . . . 

prior to the commencement of this suit, [Yoon] became indebted to [JPDC] on an open 
10

book account for money due in the amount of $120,271.65," plus interest. Ko, who 

retained Choi to file the lawsuit, testified that he prepared and sent Yoon a letter dated 

August 17, 2005, requesting payment for orchids shipped in July and August in the 

amount of $66,453.50. The letter included an invoice summary for the period April 

through August 2005 which confirmed that no balance was due as of June 29, 2005, and 

that the $66,453.50 was for orders invoiced beginning July 5, 2005. The letter also 

mentioned the parties' "conflicts of opinions" regarding earlier payments, apparently 

referencing Yoon's claim to a refund for previous overcharges. Kim testified that Yoon 

was in fact overcharged for shipments between January and August 2004 and that he had 

proposed to give her free plants as compensation. 

Heo testified that he was present at a meeting with Yoon on September 1, 

2005, in which Yoon provided a $28,198 check to "settle the account." The check, which 

JPDC negotiated, contains the handwritten notation "zero balance as of 8-31-05." A few 

months later, Ko prepared an aging statement for Yoon's account for the period January 

2004 through August 2005. The statement, which served as the basis for the underlying 

action, reflected a balance due of $120,271.65 after deduction of the final $28,198 

payment. As Yoon points out, this document is wholly inconsistent with the account 

summary Ko provided to her on August 17, 2005, which stated the account was current 

except for the $66,453.50 due for the July/August deliveries. It also is inconsistent with 

Heo's testimony that the account was "settled" when Yoon made the September payment. 

Moreover, it did not factor in the 2004 overcharges. 

A reasonable inference from this evidence is that Ko knew the accounting 

in his aging statement was inaccurate and that, in authorizing the filing of the action, he 

relied "upon facts which he ha[d] no reasonable cause to believe to be true." (Sangster v. 

Paetkau, supra, 68 Cal.App.4th at pp. 164-165.) If the complaint had, for example, 

sought $38,255.50 -- the difference between the $66,453.50 owed for the July/August 

shipments and the $28,198 final payment -- it arguably could be inferred that Ko, unlike 

Heo, did not believe Yoon had settled her account. But for JPDC to claim a year after 

Yoon made the final $28,198 payment that $120,271.65 (plus interest) remained due 
11

supports a reasonable inference that the action was initiated not only without probable 

cause, but also for an improper purpose, such as forcing a monetary settlement unrelated 

to the claim's merits. (Cole, supra, 206 Cal.App.4th at pp. 1113-1114; Jay v. Mahaffey, 

supra, 218 Cal.App.4th at p. 1544.) 

JPDC offers no explanation for the discrepancy between Ko's admission in 

August 2005 that Yoon owed $66,453.50 before the $28,198 payment and his 

determination that she owed $120,271.65 thereafter. In any event, JPDC cannot defeat 

Yoon's evidentiary showing by presenting evidence that merely contradicts her evidence. 

It must establish as a matter of law that she cannot prevail. (Oasis West Realty, LLC v. 

Goldman (2011) 51 Cal.4th 811, 820.) It has not met that burden. 

The anti-SLAPP statute is not intended to jeopardize meritorious actions. 

(See S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 380.) Yoon has submitted 

sufficient admissible evidence that, if believed by the trier of fact, could support a 

judgment in her favor on the malicious prosecution claim. (Plumley v. Mockett, supra, 

164 Cal.App.4th at pp. 1047-1048.) Accordingly, we conclude the action is not a SLAPP 

and that the trial court erred by finding otherwise.

DISPOSITION

The order granting the special motion to strike and the subsequent 

judgment awarding attorney fees to JPDC are reversed. The matter is remanded to the 

trial court with instructions to deny the motion. Yoon shall recover her costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
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Henry Walsh, Judge

Superior Court County of Ventura

______________________________

Kozberg & Bodell, Gregory Bodell for Plaintiff and Appellant.

Law Offices of Barry G. Florence, Barry G. Florence; Richard S. Kim & 

Associates, Richard S. Kim for Defendant and Respondent.