Filed 7/7/14 Chavez v. Meneshke Law Firm CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


FEDERICO CHAVEZ et al.,                                              H038557
                                                                    (Santa Cruz County
         Plaintiffs and Respondents,                                 Super. Ct. No. CV172811)

         v.

MENESHKE LAW FIRM et al.,

         Defendants and Appellants.



         Defendants appeal from the denial of their anti-SLAPP1 motions (Code Civ. Proc.,
§ 425.16) seeking dismissal of plaintiffs’ malicious prosecution action. Defendants claim
that the court should have granted their motions because plaintiffs did not establish a
probability of prevailing. They argue that plaintiffs did not make a prima facie showing
that (1) the prior lawsuit, an action for indemnity by defendants against plaintiffs that
defendants voluntarily dismissed with prejudice, was terminated in plaintiffs’ favor, (2)
defendants lacked probable cause for the indemnity action, and (3) defendants initiated
the indemnity action with malice. We conclude that plaintiffs demonstrated that they had
a probability of prevailing on their malicious prosecution cause of action. Accordingly,
we affirm the superior court’s order.


1
      “SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ”
(Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 16, fn. 1.)
                                      I. Background
                                                       2
       Defendants Jeffrey and Dora Solinas (Solinas) leased an office in a building they
owned in Watsonville to plaintiffs Federico and Rafael Chavez “dba Truck Driving
                            3
Institute” (Chavez) in 1997. The lease described the “demised premises” as “OFFICE
1150 MAIN ST. SUITE No. 8.” Suite 8 was on the second floor of the building and was
accessible only by an exterior stairway. Solinas at all times took responsibility for
maintaining the stairway. The lease required Chavez to maintain the “demised premises”
and “such portions adjacent to the premises, such as sidewalks, driveways, lawn and
shrubbery” in “good condition.” The lease also provided: “Lessor shall not be liable for
any damage or injury to Lessee, or any other person, or to any property, occurring on the
demised premises or any part thereof, and Lessee agrees to hold Lessor harmless from
any claims for damages, no matter how caused.”
       In November 2004, the City of Watsonville notified Solinas of numerous code
violations at 1150 Main Street. Several of these code violations pertained to the stairway
to the second floor. The treads were worn, were not slip resistant, and were “recessed,”
thereby creating a “trip hazard.” The risers were open and were not uniform in height.
Solinas was notified of the specific deficiencies and ordered to correct the violations
within 90 days. A few months later, Solinas began the process of looking into correcting
the deficiencies. An engineer he consulted recommended that the stairway be replaced,
but no immediate action was taken.
       In December 2005, Maria Chavez-Bello, sister of the Chavezes, visited one of her
brothers at the 1150 Main Street, Suite 8 office. Solinas had not repaired or replaced the


2
        Defendant Plazita Medical Clinic (Plazita) is owned by the Solinases. It also had
an office in the 1150 Main Street building. We will refer to the Solinases and Plazita
jointly as Solinas.
3
      Chavez operated a business in the leased office from 1997 through 2010. Solinas
terminated the lease in November 2010.

                                             2
         4
stairway. After Chavez-Bello left Chavez’s second floor office, she fell down the
stairway and was seriously injured. In December 2007, Chavez-Bello filed a negligence
and premises liability action against Solinas seeking damages for her injuries. Chavez-
Bello’s action was based on Solinas’s failure to remedy the code violations after the City
notified him of them. Solinas’s insurer, defendant California Capitol Insurance
Company, Inc. (CIC), retained defendants Meneshke Law Firm, Ayhan M. Meneshke,
and Patricia Boyes (Meneshke) to represent Solinas in the Chavez-Bello action.
       On August 20, 2009, Meneshke filed a motion on Solinas’s behalf seeking an
order shortening time for a hearing on a request for leave of court to file a cross-
complaint for indemnity against Chavez in the Chavez-Bello action. Meneshke attached
a declaration to his motion in which he stated that he had realized that an indemnity cause
of action existed only after Chavez-Bello testified at her deposition on August 9, 2009
that she had gone to the building to visit her brother. Meneshke also claimed that he did
not previously notice the lease provision regarding indemnity. Chavez-Bello’s attorney
opposed the request and produced indisputable evidence that CIC and Meneshke had long
known of the reason for Chavez-Bello’s visit to the building that day. On August 21, the
court denied the request on the ground that there had been no showing of good cause for
the “11th hour” request.
       On August 25, 2009, Meneshke sent to Chavez on Solinas’s behalf a demand for
indemnity in the Chavez-Bello action. At that time, the Chavez-Bello action was
scheduled for trial on September 14, 2009. On September 1, 2009, Meneshke filed a
complaint on behalf of Solinas against Chavez for indemnity, breach of contract, and
                                   5
negligence (the indemnity action). The indemnity action alleged that Chavez was
required under the lease to indemnify Solinas for any damages suffered by Chavez-Bello


4
       Solinas replaced the stairway in 2007 or 2008.
5
       The complaint was essentially identical to the proposed cross-complaint.

                                              3
and to reimburse Solinas for any attorney’s fees and costs incurred in the Chavez-Bello
          6
action.
          The Chavez-Bello action was ultimately tried to a jury in September 2010, and
Chavez-Bello obtained a judgment for over $800,000 against Solinas. CIC subsequently
negotiated a settlement of the Chavez-Bello action.
          In April 2011, Meneshke dismissed with prejudice the indemnity action against
Chavez. In December 2011, Chavez filed a malicious prosecution action against Solinas,
Meneshke, and CIC. Solinas, Meneshke, and CIC filed special motions to strike the
malicious prosecution cause of action under Code of Civil Procedure section 425.16.
          Meneshke’s motion claimed that Chavez would not be able to show a lack of
probable cause, a necessary element of malicious prosecution, because the lease itself
provided probable cause. He maintained that Chavez would not be able to show that the
indemnity action had terminated in Chavez’s favor due to lack of merit, another requisite
element of malicious prosecution, because the dismissal of the indemnity action occurred
due to the settlement of the Chavez-Bello action and Solinas’s desire to avoid
unnecessary expenses. Meneshke’s argument in this respect depended solely on his own
declaration. Meneshke declared: “Due to that settlement, [CIC] did not want to continue
to pursue the indemnity claims against [Chavez] but wanted to close its file on the case,
and the Solinas defendants were unwilling and unable to pursue the case themselves at
their own expense. [CIC] instructed [Meneshke] to dismiss the indemnity lawsuit with
prejudice and [Meneshke] did so.” Meneshke also declared: “The decision to dismiss
the indemnity lawsuit with prejudice was a business decision by [CIC] and in no way




6
       In October 2009, Meneshke filed a motion on Solinas’s behalf seeking
consolidation of the indemnity action and the Chavez-Bello action. This motion was
apparently denied.

                                              4
                                             7
reflected on a lack of merit of that lawsuit.” Meneshke claimed that he at all times
believed that the lease obligated Chavez to indemnify Solinas.
       Solinas’s motion claimed that Chavez would not be able to establish any of the
elements of malicious prosecution. He produced no evidence other than Meneshke’s
declaration in support of his argument regarding the favorable termination element,
instead claiming that Chavez would not be able to produce admissible evidence of a
favorable termination. Solinas relied on the lease to support his argument that there was
probable cause for the indemnity action. He claimed that there was no evidence of
malice because the indemnity action was intended to obtain indemnity. CIC’s motion
was premised solely on its contention that Chavez would not be able to show a lack of
probable cause.
       Chavez opposed the motions. He objected on competence, hearsay, and
foundation grounds to the portion of Meneshke’s declaration concerning CIC’s rationale
for requesting dismissal of the indemnity action and Solinas’s reasons for not pursuing it
himself. Chavez renewed this objection at the hearing on the motions. The superior
court did not expressly rule on this objection.
       In support of his opposition, Chavez asked the court to take judicial notice of a
number of documents, including portions of Solinas’s deposition testimony. Solinas had
testified at his deposition that he maintained the stairway and that he had not yet



7
        CIC asks this court to take judicial notice under Evidence Code section 452,
subdivision (g) “that it is common practice for liability insurance carriers to close a file
without pursuing indemnity rights because such carriers put great value on closing claims
files.” CIC provides no support for the alleged indisputability of this proposition.
       Evidence Code section 452, subdivision (g) permits judicial notice of “[f]acts and
propositions that are of such common knowledge within the territorial jurisdiction of the
court that they cannot reasonably be the subject of dispute.” Since CIC has provided no
support for its claim that this proposition is a matter of common knowledge, and we are
aware of none, we reject its request.

                                              5
corrected the code violations at the time of Chavez-Bello’s fall despite the fact that he
had known of the code violations for a year.
       The court found that Chavez had shown a probability of prevailing and denied the
motions to strike. Meneshke, CIC, and Solinas timely filed notices of appeal.


                                        II. Analysis
       “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 shall be
subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.” (Code
Civ. Proc., § 425.16, subd. (b)(1).) “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.” (Code Civ. Proc., § 425.16, subd. (b)(2).)
       “ ‘Section 425.16 posits . . . a two-step process for determining whether an action
is a SLAPP. First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected activity. . . . If the court
finds that such a showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of
action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to
being stricken under the statute.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 278-279 (Soukup).)
       “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.] For purposes of this inquiry, ‘the trial court considers the

                                               6
pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16,
subd. (b)(2)); though the court does not weigh the credibility or comparative probative
strength of competing evidence, it should grant the motion if, as a matter of law, the
defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim.’ [Citation.] In making this assessment it is ‘the court’s
responsibility . . . to accept as true the evidence favorable to the plaintiff . . . .’ [Citation.]
The plaintiff need only establish that his or her claim has ‘minimal merit’ . . . .” (Soukup,
supra, 39 Cal.4th at p. 291.) “In assessing the probability of prevailing, a court looks to
the 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.” (Roberts v. Los Angeles County Bar Assn.
(2003) 105 Cal.App.4th 604, 613-614.) Our standard of review is de novo. (Flatley v.
Mauro (2006) 39 Cal.4th 299, 325.)
       “To prevail on a malicious prosecution claim, the plaintiff must show that the prior
action (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.” (Soukup, supra, 39 Cal.4th at p. 292.)


                                 A. Favorable Termination
       Defendants claim that Chavez failed to submit admissible evidence that could
have supported a finding that the prior action was terminated in his favor.
       “A voluntary dismissal is presumed to be a favorable termination on the merits,
unless otherwise proved to a jury.” (Sycamore Ridge Apartments LLC v. Naumann
(2007) 157 Cal.App.4th 1385, 1400, italics added.) Therefore, defendants’ voluntary
dismissal of the indemnity action is presumed to be a favorable termination on the merits
unless defendants established otherwise as a matter of law. They did not. The only
evidence defendants produced on the favorable termination issue was Meneshke’s

                                                7
declaration. Chavez objected on hearsay and foundation grounds to the declaration,
which purported to state CIC’s and Solinas’s reasons for not pursuing the case. Chavez
adequately preserved this issue for appellate review (cf. Reid v. Google (2010) 50 Cal.4th
                                        8
512, 526), and he renews it on appeal. We conclude that this portion of Meneshke’s
declaration was inadmissible because Meneshke failed to show any foundation for his
statements based on personal knowledge.
       Meneshke declared: “Due to that settlement, [CIC] did not want to continue to
pursue the indemnity claims against [Chavez] but wanted to close its file on the case, and
the Solinas defendants were unwilling and unable to pursue the case themselves at their
own expense. [CIC] instructed [Meneshke] to dismiss the indemnity lawsuit with
prejudice and [Meneshke] did so.” Meneshke also declared: “The decision to dismiss
the indemnity lawsuit with prejudice was a business decision of [CIC] and in no way
reflected on a lack of merit of that lawsuit.”
       While Meneshke’s declaration was crafted to avoid explicitly recounting specific
hearsay statements, he did not provide any foundation for his alleged personal knowledge
of Solinas’s or CIC’s reasons for the dismissal. Meneshke maintains that his statements
were not hearsay because he did not “ ‘recount “a statement” ’ ” and did not lack


8
        Instead of fully addressing defendants’ contentions regarding the favorable
termination element, Chavez’s appellate brief states that the “analysis [in Chavez’s trial
court brief] is incorporated herein by this reference thereto.” “California Rules of Court,
rule 8.204(a)(1)(B) requires that appellate briefs ‘support each point by argument and, if
possible, by citation of authority.’ ‘It is well settled that the Court of Appeal does not
permit incorporation by reference of documents filed in the trial court. (Colores v. Board
of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [130 Cal.Rptr.2d 347] [“[I]t is not
appropriate to incorporate by reference, into a brief, points and authorities contained in
trial court papers, even if such papers are made a part of the appellate record”].)’
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 20, 46
Cal.Rptr.3d 638, 139 P.3d 30.) A Court of Appeal may refuse to consider arguments
incorporated by reference.” (McGuan v. Endovascular Technologies, Inc. (2010) 182
Cal.App.4th 974, 987.) We decline to consider Chavez’s trial court briefs.

                                                 8
foundation because he represented Solinas in the Chavez-Bello action. Meneshke’s
representation of Solinas did not provide a foundation for Meneshke’s personal
knowledge of Solinas’s reasons for the dismissal other than to imply that Solinas told
Meneshke of his reasons, which would be hearsay and would not establish personal
knowledge. Meneshke’s claim to have personal knowledge of CIC’s reasons for
directing Meneshke to dismiss the Chavez-Bello action was similarly flawed. He made
no foundational showing that he had personal knowledge of CIC’s reasons. On the face
of his declaration, one could only infer that a CIC representative had told him those
reasons, which would be hearsay and would not establish Meneshke’s personal
knowledge of those reasons. It follows that Chavez’s objections to this portion of
Meneshke’s declaration were valid, and this evidence was inadmissible.
       Since a voluntary dismissal is presumed to be a favorable termination, and the
only evidence produced by defendants to rebut this presumption was inadmissible,
Chavez did not fail to make out a prima facie showing on the favorable termination
element.


                               B. Lack of Probable Cause
       Defendants contend that Chavez failed to make a prima facie showing that they
lacked probable cause for the indemnity action.
       The presence or absence of probable cause is a question of law. Probable cause
exists if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel
Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886 (Sheldon Appel).) “[P]robable cause to
bring an action does not depend upon it being meritorious, as such, but upon it being
arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable
attorney would have thought the claim tenable.” (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 824.) “[T]he probable cause issue is properly determined by the
trial court under an objective standard; it does not include a determination whether the

                                             9
attorney subjectively believed that the prior claim was legally tenable.” (Sheldon Appel,
at p. 881.)
          The question is whether any reasonable attorney would have thought the lease
provided a tenable basis for an indemnity action. The lease indisputably established that
the “demised premises” was limited to Suite 8. Nothing in the lease suggested that the
“demised premises” included the stairway. While the lease required Chavez to maintain
the “demised premises” and “such portions adjacent to the premises, such as sidewalks,
driveways, lawn and shrubbery” in “good condition,” the lease’s indemnity provision did
not purport to encompass any damage or injury that occurred on “portions adjacent to the
              9
premises.” It provided: “Lessor shall not be liable for any damage or injury to Lessee,
or any other person, or to any property, occurring on the demised premises or any part
thereof, and Lessee agrees to hold Lessor harmless from any claims for damages, no
matter how caused.” (Italics added.)
          Since the stairway indisputably was not “any part” of the “demised premises”
under the clear provisions of the lease, no reasonable attorney would have believed that
the indemnity provision applied. The indemnity provision was explicitly limited to
“damage or injury . . . occurring on the demised premises or any part thereof.” (Italics
added.) Chavez-Bello’s injuries indisputably “occurr[ed] on” the stairway, which clearly
was not “part of” Suite 8. Hence, there was a lack of probable cause for the indemnity
action.
          Defendants claim that the lease was “sufficiently ambiguous” to permit the
introduction of extrinsic evidence to determine its meaning. But the express indemnity
cause of action in the indemnity action did not allege that it was based on anything other


9
       We need not consider whether a reasonable attorney would have believed that it
was legally tenable to claim that the stairway was included in “such portions adjacent to”
Suite 8 as the indemnity provision, which was the sole basis for the express indemnity
cause of action, did not extend to such “portions.”

                                              10
than the express language of the lease. Defendants also argue that there may have been
probable cause for the negligence cause of action or one of the other causes of action in
the indemnity action. That is irrelevant. A malicious prosecution cause of action may
succeed even if some of the theories or causes of action in the underlying action were
based on probable cause so long as one or more theories or causes of action lacked
probable cause. (Crowley v. Katleman (1994) 8 Cal.4th 666, 679.) Here, the express
indemnity cause of action lacked probable cause. Chavez could prevail in his malicious
prosecution action based on the lack of probable cause for that cause of action alone.


                                          C. Malice
       Defendants claim that Chavez failed to show that he had a probability of
prevailing on the malice element.
       “The malice element of malicious prosecution goes to the defendants’ subjective
intent for instituting the prior case. [Citation.] Malice does not require that the
defendants harbor actual ill will toward the plaintiff in the malicious prosecution case,
and liability attaches to attitudes that range ‘ “from open hostility to indifference.
[Citations.]” ’ [Citation.] Malice may be inferred from circumstantial evidence, such as
the defendants’ lack of probable cause, supplemented with proof that the prior case was
instituted largely for an improper purpose. [Citation.] This additional proof may consist
of evidence that the prior case was knowingly brought without probable cause or was
brought to force a settlement unrelated to its merits.” (Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, 1113-1114.)
       Here, defendants initiated the indemnity action without probable cause just before
the underlying action brought by Chavez’s sister was scheduled to be tried. Solinas was
obviously aware of the lease’s indemnity provisions much earlier, and the explanation
proffered by Meneshke for the late filing was rebutted. A reasonable inference could be
drawn from the timing of the indemnity action and its lack of probable cause that

                                              11
defendants filed it for the purpose of trying to force Chavez-Bello to settle her action
against Solinas. Such an improper purpose would qualify as malice. Chavez did not fail
to show a probability of prevailing on the malice element.


                                     III. Disposition
       The order is affirmed.




                                           _______________________________
                                           Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Grover, J.




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