Filed 11/6/19; Certified for Publication 12/4/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT

EFRAIN GARCIA et al.,
                                                                              F076012
         Plaintiffs and Appellants,
                                                                    (Super. Ct. No. 15CECG03847 )
                  v.

GARY ROSENBERG,                                                             OPINION
         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
         Efrain Garcia and Ofelia Garcia, in pro. per., for Plaintiffs and Appellants.
         Whitney, Thompson & Jeffcoach and Mandy Jeffcoach for Defendant and
Respondent.
                                                     -ooOoo-
         Plaintiffs filed a malicious prosecution action against defendant, the attorney for
the opposing party in prior litigation. Defendant filed a special motion to strike the action
on the ground it was a strategic lawsuit against public participation. Defendant asserted
plaintiffs’ claim arose out of defendant’s protected petitioning activity, and plaintiffs
could not demonstrate there was a reasonable probability they would succeed on the
merits. The trial court granted the motion, and plaintiffs appeal. We conclude the
evidence does not demonstrate a reasonable probability plaintiffs would prevail on the
merits of their claim, although we base that conclusion on a different ground than the trial
court did. Accordingly, we affirm the order.
                  FACTUAL AND PROCEDURAL BACKGROUND
        In October 2004, Allstate Insurance Company (Allstate) filed an action against
plaintiffs Efrain and Ofelia Garcia (the Garcias), alleging it was subrogated to the rights
of its insured, who was injured and/or whose car was damaged when a Ford Aerostar
owned by the Garcias collided with the insured’s vehicle. Allstate sought reimbursement
of the amount it paid to its insured. That action was dismissed by Allstate in November
2011.
        Subsequently, the Garcias sued Allstate for malicious prosecution in a federal
district court action. After the Garcias presented their evidence at a bench trial and
supplemental briefing was received, the federal district court granted a directed verdict in
favor of Allstate. It found that favorable termination of the prior action was a required
element of the malicious prosecution cause of action, and the Garcias had not met their
burden of establishing that element. In April 2015, judgment was entered in favor of
Allstate in the federal district court action.
        On December 21, 2015, the Garcias filed this malicious prosecution action against
defendant Gary Rosenberg, the attorney who represented Allstate in the subrogation
action.1 They alleged Rosenberg pursued the subrogation action against them for seven
years, even though the Garcias provided him with documentation showing they sold the
Aerostar six months prior to the accident with Allstate’s insured; he had a default
judgment entered against them without proper service of the complaint, garnished their
wages, placed a judgment lien on their home, and had their drivers’ licenses suspended.


1      Although the second amended complaint contained multiple causes of action, Rosenberg
represented in the trial court and here that the only remaining cause of action was malicious
prosecution. The Garcias have not disputed that statement and have addressed only the
malicious prosecution cause of action in their briefs.


                                                 2.
They alleged the subrogation action was filed and maintained without probable cause and
was later dismissed.
       Rosenberg filed a special motion to strike pursuant to Code of Civil Procedure
section 425.162 (anti-SLAPP motion).3 He asserted the Garcias’ claims in this action
arose out of his protected petitioning activity, which he engaged in as attorney of record
for Allstate in the subrogation action. Further, the Garcias would not be able to meet
their burden of establishing a probability of prevailing on their claim, because the federal
district court action determined that the subrogation action did not result in a termination
on the merits favorable to the Garcias. Additionally, Rosenberg asserted the Garcias’
claim was barred by the statute of limitations.
       The Garcias opposed the motion. The trial court granted the motion, finding that,
although Allstate had voluntarily dismissed the subrogation action, the dismissal was not
on the merits. Rosenberg’s declaration indicated the subrogation action was dismissed to
avoid sanctions when his client was unable to have a representative with full settlement
authority attend a mandatory settlement conference. The trial court concluded that, in the
absence of a favorable termination on the merits, the Garcias could not establish the
elements of a malicious prosecution cause of action. Consequently, it found the Garcias
had not shown a probability of success on the merits of their case, and the anti-SLAPP
motion was granted. The Garcias appeal from the order granting Rosenberg’s motion.
                                         DISCUSSION
I.     Review of Order on Anti-SLAPP Motion
       “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

2       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
3      “SLAPP” is an acronym for “strategic lawsuit against public participation.” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)


                                                3.
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.”
(§ 425.16, subd. (b)(1).) An “ ‘act in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in connection with a public
issue’ includes: (1) any written or oral statement or writing made before a … judicial
proceeding, or … (2) any written or oral statement or writing made in connection with an
issue under consideration or review by a … judicial body.” (§ 425.16, subd. (e).) “The
purpose of the statute is to encourage participation in matters of public significance by
allowing a court to promptly dismiss unmeritorious actions or claims that are brought to
chill another’s valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.” (Padres L.P. v. Henderson (2003) 114
Cal.App.4th 495, 508 (Padres).)
       When a defendant files an anti-SLAPP motion, a two-step process is required.
First, “[a] defendant bringing an anti-SLAPP motion to strike must make a prima facie
showing that the plaintiff’s suit is subject to section 425.16, i.e., that the defendant’s
challenged acts were taken in furtherance of his constitutional rights of petition or free
speech in connection with a public issue, as defined by the statute.” (Padres, supra,
114 Cal.App.4th at p. 508.) Second, “[i]f the defendant makes such a showing, the
burden shifts to the plaintiff to demonstrate, by admissible and competent evidence, a
reasonable probability that it will prevail on the merits at trial.” (Id. at pp. 508–509.)
“ ‘[T]he 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.” ’ ” (Navellier v. Sletten (2002)
29 Cal.4th 82, 88–89.) “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.” (Id. at p. 89.)

                                               4.
       An order granting an anti-SLAPP motion is an appealable order. (§ 904.1,
subd. (a)(13).) “In reviewing an anti-SLAPP motion, a court must consider the pleadings
and the evidence submitted by the parties [citation]; however, it cannot weigh the
evidence, but instead must simply determine whether the respective party’s evidence is
sufficient to meet its burden of proof. [Citation.] On appeal, we independently review
the trial court’s ruling on the motion to strike.” (Padres, supra, 114 Cal.App.4th at
p. 509.)
II.    Protected Activity
       “The anti-SLAPP statute defines an ‘ “act in furtherance of a person’s right of
petition or free speech” ’ to include ‘any written or oral statement or writing made before
a … judicial proceeding .…’ [Citation.] 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.” (Daniels v. Robbins (2010) 182 Cal.App.4th
204, 214–215.)
       The statute does not require that a defendant bringing an anti-SLAPP motion
demonstrate that his protected statements or writings were made on his own behalf, rather
than on behalf of his client or someone else. (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1116.) Consequently, “an attorney who has been
made a defendant in a lawsuit based upon a written or oral statement he or she made on
behalf of clients in a judicial proceeding or in connection with an issue under review by a
court, may have standing to bring a SLAPP motion.” (Jesperson v. Zubiate-Beauchamp
(2003) 114 Cal.App.4th 624, 629; accord, White v. Lieberman (2002) 103 Cal.App.4th
210, 221.)
       The Garcias alleged a cause of action for malicious prosecution against
Rosenberg, who acted as counsel of record for Allstate in the subrogation action. The
trial court concluded Rosenberg met his burden of showing the Garcias’ claim arose out

                                            5.
of Rosenberg’s constitutionally protected free speech and petitioning activity rights. In
this appeal, the Garcias do not dispute that Rosenberg met his burden of demonstrating
their malicious prosecution cause of action arose out of his protected activity. Thus, the
first step of the anti-SLAPP analysis is not in issue.
III.      Probability Garcias Will Prevail on Claim
          In the second step of the anti-SLAPP analysis, the Garcias had the burden of
demonstrating, through admissible and competent evidence, a reasonable probability that
they would prevail on the merits of their claim. (Padres, supra, 114 Cal.App.4th at
p. 509.) They were required to make a prima facie showing of facts, supported by
evidence, that satisfied all elements of their cause of action. The elements of a malicious
prosecution cause of action are that the prior action: “(1) was commenced by or at the
direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor
[citations]; (2) was brought without probable cause [citations]; and (3) was initiated with
malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) A favorable
termination does not occur merely because the malicious prosecution plaintiff prevailed
in the underlying action; the termination must reflect on the plaintiff’s innocence of the
alleged wrongful conduct. (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751.)
          The trial court focused on the element of termination of the underlying action in
the Garcia’s favor. It found that the dismissal of the subrogation action was not a
termination on the merits and did not reflect the Garcias’ lack of liability in that action.
The trial court accepted Rosenberg’s declaration, finding that “the only reason Allstate …
dismissed [the subrogation action] was because it could not get a representative with full
settlement authority at the mandatory settlement conference and it wanted to avoid
sanctions.” The trial court stated the Garcias did not provide any other reason for
Allstate’s dismissal, and concluded they had not shown a probability of success on the
merits.



                                               6.
       We have concerns about the trial court’s acceptance of Rosenberg’s explanation as
establishing Allstate’s reasons for dismissal. “ ‘[T]he Legislature did not intend that a
court, in ruling on a motion to strike under [the anti-SLAPP] statute, would weigh
conflicting evidence to determine whether it is more probable than not that plaintiff will
prevail on the claim, but rather intended to establish a summary-judgment-like procedure
available at an early stage of litigation that poses a potential chilling effect on speech-
related activities.’ [Citation.] ‘[T]he court’s responsibility is to accept as true the
evidence favorable to the plaintiff.’ ” (Daniels v. Robbins, supra, 182 Cal.App.4th at
p. 215.)
       The reason or intent of Allstate and Rosenberg behind the dismissal of the
subrogation action is a matter uniquely within their knowledge, and apparently the only
evidence the trial court considered on that issue was Rosenberg’s declaration stating his
intent.4 The Garcias were not likely to have direct evidence of Rosenberg’s intent, but
there were inferences to be drawn from the circumstantial evidence. Rosenberg did not
deny that, within a few months after the subrogation action was filed, the Garcias
provided him with a document from the Department of Motor Vehicles showing they had
sold the Aerostar and filed a release of liability six months before the accident with
Allstate’s insured. It was undisputed Rosenberg and Allstate pursued the subrogation
action vigorously for seven years, including garnishing the Garcias’ wages, placing a
judgment lien on their home, having their drivers’ licenses suspended, and declining to
consider the possibility of the Garcias’ innocence in light of the evidence they presented,
then suddenly dismissed it shortly before trial. The evidence would support an inference
in the Garcias’ favor that Rosenberg’s stated reason was a convenient excuse for a last
minute dismissal to avoid a trial he deemed likely to result in a judgment against his

4      After observing that Rosenberg’s declaration “explain[ed] that the dismissal had nothing
to do with the merits but was procedurally required and motivated,” the trial court added, “[a]nd
[the Garcias] do not provide any other reason for the dismissal.”


                                                7.
client. We note that, in the somewhat analogous summary judgment procedure, the trial
court is authorized to deny the motion “if a material fact is an individual’s state of mind,
or lack thereof, and that fact is sought to be established solely by the individual’s
affirmation thereof.” (§ 437c, subd. (e).)
       We need not address that issue further, however, because we conclude a likelihood
of success on the merits was not shown because the Garcias’ action was barred by the
statute of limitations. California does not have a statute of limitations that applies
specifically to malicious prosecution causes of action. (Connelly v. Bornstein (2019)
33 Cal.App.5th 783, 789 (Connelly).) Generally, malicious prosecution actions have
been held to be encompassed within the two-year limitations period prescribed for actions
for injury to a person caused by the wrongful act or neglect of another (§ 335.1).
(Connelly, at p. 789.) However, when a malicious prosecution action has been brought
against an attorney, courts have held the action is governed by the limitations period set
out in section 340.6, subdivision (a): “An action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance of professional services
shall be commenced within one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the facts constituting the wrongful act or
omission, or four years from the date of the wrongful act or omission, whichever occurs
first.” (Connelly, at p. 788, fn. 3; see also Yee v. Cheung (2013) 220 Cal.App.4th 184,
194; Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 880.)
       Although one appellate court has held section 340.6 applies only to attorney
malpractice actions and not to malicious prosecution actions against attorneys (Roger
Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, 680), our
Supreme Court rejected the view that section 340.6 is limited to malpractice actions in
Lee v. Hanley (2015) 61 Cal.4th 1225. It disapproved Roger Cleveland Golf Co., Inc. to
the extent it disagreed, and held “that section 340.6[, subdivision ](a) applies to a claim
when the merits of the claim will necessarily depend on proof that an attorney violated a

                                              8.
professional obligation—that is, an obligation the attorney has by virtue of being an
attorney—in the course of providing professional services.” (Lee, at p. 1229.)
Subsequently, in Connelly, the court concluded “an attorney who engages in malicious
prosecution violates the obligation, embodied in the Rules of Professional Conduct, to not
‘bring or continue an action, conduct a defense, assert a position in litigation, or take an
appeal, without probable cause and for the purpose of harassing or maliciously injuring
any person.’ ” (Connelly, supra, 33 Cal.App.5th at p. 794.) Consequently, it concluded a
malicious prosecution action against an attorney who performed professional services in
the underlying litigation is governed by the limitations period set out in section 340.6,
subdivision (a).
       The limitations period—the period in which a plaintiff must bring suit or be
barred—runs from the moment a claim accrues. (§ 312; Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) Ordinarily, a claim accrues from the
occurrence of the last element essential to the cause of action. (Aryeh, at p. 1191.) A
cause of action for malicious prosecution accrues upon dismissal or other termination of
the prior action that concludes it in favor of the malicious prosecution plaintiff. (Babb v.
Superior Court (1971) 3 Cal.3d 841, 846.)
       The subrogation action, which the Garcias contend was maliciously prosecuted
against them, was dismissed on November 14, 2011. Their malicious prosecution cause
of action against Rosenberg accrued at that time. The Garcias were, or should have been,
aware on that date that Rosenberg was the attorney who prosecuted the subrogation
action against them on behalf of Allstate; his name appeared as attorney of record on the
original complaint and other documents filed in the subrogation action. Additionally,
they communicated with him to provide the documentation regarding the sale of the
vehicle. This malicious prosecution action against Rosenberg was filed on
December 21, 2015, more than four years later. It was not timely filed within one year



                                              9.
after discovery, or within four years after the wrongful acts, as required by section 340.6.
Consequently, the Garcias’ action was barred by the expiration of the limitations period.
       In their opposition to Rosenberg’s anti-SLAPP motion, the Garcias asserted their
action was timely due to late discovery. Their second amended complaint alleged that
they discovered, during the federal action against Allstate, that Allstate contracted with
CCS Companies (CCS) for CCS to handle Allstate’s collections, including pursuing
litigation of subrogation claims. They learned it was CCS, rather than Allstate, that
retained Rosenberg as Allstate’s counsel in the subrogation action. Late discovery of
CCS’s involvement in the subrogation action, however, does not equate to late discovery
of Rosenberg’s involvement. The Garcias do not dispute that they were aware during the
subrogation action that Rosenberg was the attorney of record prosecuting that action.
       In any event, the limitations period imposed by section 340.6 is one year from the
discovery of the wrongful act or omission, or four years from the date of the wrongful act
or omission, whichever occurs first. (§ 340.6.) Rosenberg’s alleged wrongful acts of
maliciously pursuing the subrogation action against the Garcias ceased when he
dismissed the action on November 14, 2011. The outside four-year time period for
bringing the action expired November 14, 2015. This action was not filed until
December 21, 2015. Thus, the four-year provision of the statute of limitations expired
prior to the filing of the complaint, and a later discovery could not extend that period.
Consequently, the Garcias’ action is time barred.
       Because the Garcias’ action is time barred, it is not reasonably probable they
would prevail on the merits at trial. Consequently, we find no prejudicial error in
granting Rosenberg’s anti-SLAPP motion.
       In closing, we note that the Garcias’ plea for justice, made at oral argument, did
not fall on deaf ears. We understand and appreciate the obstacles they faced in
attempting to defend themselves in the subrogation action and prosecute their malicious
prosecution actions. We are constrained to follow the law, however, and must enforce

                                             10.
the statute of limitations. (Kupka v. Board of Administration (1981) 122 Cal.App.3d 791,
794 [“Statutes of limitation ‘ “are, of necessity, adamant rather than flexible in nature,” ’
and are ‘ “upheld and enforced regardless of personal hardship.” ’ ”].)
                                      DISPOSITION
       The May 16, 2017 order granting Rosenberg’s anti-SLAPP motion is affirmed.
The parties shall bear their own costs on appeal.

                                                                 _____________________
                                                                              HILL, P.J.
WE CONCUR:


 _____________________
SMITH, J.


 _____________________
MEEHAN, J.




                                             11.
Filed 12/4/19



                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT




EFRAIN GARCIA et al.,
                                                                  F076012
        Plaintiffs and Appellants,
                                                  (Fresno Super. Ct. No. 15CECG03847)
                  v.

GARY ROSENBERG,                                  ORDER GRANTING REQUEST
                                                    FOR PUBLICATION
        Defendant and Respondent.



       As the nonpublished opinion filed on November 6, 2019, in the above-entitled
matter meets the standards for publication specified in the California Rules of Court,
rule 8.1105(c), it is hereby ordered that the opinion be certified for publication in the
Official Reports.



                                                                            HILL, P.J.

WE CONCUR:



SMITH, J.



MEEHAN, J.
