Filed 7/22/14 Ajamian v. Terzian-Feliz CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


MARGARITA AJAMIAN ET AL.,
         Plaintiffs and Appellants,
                                                                     A137929
v.
SANDRA TERZIAN-FELIZ,                                                (Marin County
                                                                     Super. Ct. No. CIV 1200640)
         Defendant and Respondent.


         The instant appeal represents the latest legal skirmish between two neighboring
landowners. In two prior appeals, we affirmed the underlying 2007 judgment against
Sandra Terzian-Feliz (Terzian-Feliz v. Ajamian (Feb. 11, 2010, A119333) [nonpub.
opn.]), as well as a post-judgment order requiring her to satisfy an injunction bond. After
succeeding in the trial court and on appeal, Margarita Ajamian and Vartan Ajamian
(Ajamians) filed a lawsuit against Terzian-Feliz, alleging, among other things, malicious
prosecution.1 Terzian-Feliz filed a special motion to strike pursuant to Code of Civil
Procedure2 section 425.16, which the trial court granted in part. Finding the Ajamians
have established a probability of prevailing on the merits of their malicious prosecution
claim, we reverse.



1
       The lawsuit also alleged a cause of action for intentional infliction of emotional
distress, which was the subject of a separate appeal that has now been dismissed. (See
Ajamian v. Terzian-Feliz (A136352; dismissed Feb. 8, 2013).)
2
         All further undesignated statutory references are to the Code of Civil Procedure.

                                                             1
                                   I. BACKGROUND
A.     Underlying Action
       The underlying action arose as a property dispute between neighboring
landowners who were also parties to a failed construction contract. Until June 2005, the
Ajamians and Terzian-Feliz enjoyed a mutually friendly and neighborly relationship.
When Terzian-Feliz wanted to remodel part of her home, she asked Vartan Ajamian for
advice about her plans. Vartan Ajamian was a licensed contractor and the principal of a
construction company known as Ajamian Enterprises, Inc. (AEI). He suggested ways in
which she could lower her overall costs. She decided to engage AEI in part, because she
trusted her friends, the Ajamians. (Terzian-Feliz v. Ajamian, supra, A119333.)
       On June 3, 2005, Terzian-Feliz entered into a formal construction agreement with
AEI to remodel the dining room, kitchen, and exterior decks of her home. When the
work started, the AEI workers used a bathroom at Terzian-Feliz’ s house as needed.
After a few days, she grew concerned that the workers were damaging her carpets. At
her request, Vartan Ajamian arranged for a portable toilet for their use. The toilet was
placed in a location that required a truck to use Terzian-Feliz’s concrete aggregate
driveway to access it for regular cleanout. She objected to this placement, fearing that
the cleanout truck would damage her driveway. (Terzian-Feliz v. Ajamian, supra,
A119333.)
       On June 13, 2005, she verbally terminated the construction agreement and on
June 19, 2005, Terzian-Feliz notified the Ajamians in writing that she was terminating
that agreement. Thereafter, on July 11, 2005, Terzian-Feliz filed a complaint against the
Ajamians and AEI. She alleged causes of action against the Ajamians and AEI, for
among other things, breach of contract, fraud, misappropriation/breach of fiduciary duty
and elder financial abuse. She sought a prescriptive easement and an implied easement
entitling her to use the Ajamians’ driveway, as well as damages, declaratory and
injunctive relief, and an order quieting title to an easement. The Ajamians cross-
complained, alleging causes of action for, inter alia, breach of contract, quantum meruit,
and declaratory relief relating to an express easement. They also sought to quiet title to


                                             2
their own prescriptive easement, to rescind the construction contract, and to obtain other
declaratory and injunctive relief. Among their affirmative defenses to Terzian-Feliz’s
complaint, the Ajamians asserted a bona fide purchaser defense. (Terzian-Feliz v.
Ajamian, supra, A119333.)
       In July 2005, before the trial that resulted in the judgment against her, Terzian-
Feliz moved for a preliminary injunction. She sought to preclude the Ajamians from
preventing her from using their driveway, over which she asserted an easement. She
asserted that it was virtually certain that she would prevail on her easement claim at trial.
In December 2005, the trial court granted her a preliminary injunction, contingent on the
posting of a $75,000 bond. (§ 529, subd. (a).) In January 2006, Terzian-Feliz filed an
undertaking obligating her surety to pay a $75,000 injunction bond to the Ajamians if she
could not establish her right to an easement. In June 2006, at Terzian-Feliz’s request, the
trial court dissolved the preliminary injunction. (Terzian-Feliz v. Ajamian (Feb. 21,
2012) A128900 [nonpub. opn.].)
       During trial, the Ajamians were granted nonsuit on Terzian-Feliz’s causes of
action for breach of contract and implied easement. Ultimately, a jury found against
Terzian-Feliz and for the Ajamians and AEI on all remaining causes of action. In August
2007, the trial court entered judgment against Terzian-Feliz. Among other things, that
judgment rejected her claim to a prescriptive and/or implied easement over the Ajamians’
driveway. The judgment also defined the Ajamians’ use of their own express easement
over Terzian-Feliz’s property, granted them a prescriptive easement over her property
and found them to have been bona fide purchasers of their property. (Terzian-Feliz v.
Ajamian, supra, A128900.) We affirmed that August 2007 judgment on appeal in
February 2010. (Terzian-Feliz v. Ajamian, supra, A119333.) In February 2012, we
affirmed the post-judgment order requiring Terzian-Feliz to pay the $75,000 injunction
bond. (Terzian-Feliz v. Ajamian, supra, A128900.)
B.     Malicious Prosecution Action
       In February 2012, the Ajamians filed a lawsuit against Terzian-Feliz, alleging
causes of action for malicious prosecution and intentional infliction of emotional distress.


                                              3
Thereafter, Terzian-Feliz filed a special motion to strike pursuant to section 425.16. The
trial court bifurcated the proceedings hearing first, Terzian-Feliz’s contention that the
denial of motions for nonsuit, and a defense summary adjudication motion in the prior
action, precluded the Ajamians malicious prosecution claim. After taking the matter
under submission, the trial court denied Terzian-Feliz’s motion as to the Ajamians first
cause of action for malicious prosecution, but granted the motion to strike as to the
second cause of action for intentional infliction of emotional distress. Following the
second hearing, the trial court found in Terzian-Feliz’s favor, ruling that the Ajamians
could not succeed on the merits of their malicious prosecution claim because they, as
individuals, were not named parties to the Terzian-Feliz’s first cause of action for breach
of contract against AEI. The trial court further parsed the Ajamians’ malicious
prosecution cause of action, by striking that portion of their claim relating to Terzian-
Feliz’s cause of action against them for a prescriptive easement.
       The instant appeal followed.
                                      II. DISCUSSION
A.     Applicable Law and Standard of Review
       “A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or
punish a party’s exercise of constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The Legislature enacted . . . section
425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of
lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
       A court’s consideration of an anti-SLAPP motion involves a two-step process.
“First, the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. The moving
defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains
were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,’ as defined in
the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it


                                              4
then determines whether the plaintiff has demonstrated a probability of prevailing on the
claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67
(Equilon).)
       In order to establish a probability of prevailing on the claim, “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 (Wilson), superseded by statute on other grounds as stated in Hutton v.
Hafif (2007) 150 Cal.App.4th 527, 547.) “Thus, plaintiffs’ burden as to the second prong
of the anti-SLAPP test is akin to that of a party opposing a motion for summary
judgment.” (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768 (Navellier).)
       We review the trial court’s decision to grant or deny an anti-SLAPP motion de
novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In doing so, we consider “the
pleadings, and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.” (§ 425.16, subd. (b)(2).) “ ‘However, we neither “weigh
credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.”
[Citation.]’ [Citation.]” (Flatley v. Mauro, supra, at p. 326.)
B.     Protected Activity
       The Ajamians concede that the primary focus of the instant appeal concerns the
second prong of the anti-SLAPP analysis—determining whether they have established a
probability of prevailing on their claim. Nevertheless, the Ajamians make a passing
claim that Terzian-Feliz’s lawsuit against them does not constitute protected activity.
       In analyzing a plaintiff’s burden under the first prong of the anti-SLAPP analysis,
“the critical consideration is whether the cause of action is based on the defendant’s
protected free speech or petitioning activity. [Citations.]” (Navellier, supra, 29 Cal.4th
at p. 89.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s
cause of action but, rather, the defendant’s activity that gives rise to his or her asserted


                                               5
liability—and whether that activity constitutes protected speech or petitioning.” (Id. at
p. 92.)
          It is well-established that for purposes of the SLAPP Act, “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. [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215; see also
Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.)
          In the instant case, it is clear that the Ajamians claim for malicious prosecution
arises out of protected activity. Accordingly, we turn to the true disputed issue, which is
whether the Ajamians have sustained their burden of demonstrating a probability of
prevailing on the merits of their malicious prosecution claim.
C.        Probability of Prevailing
          1.     Section 425.16 Requires a Probability of Prevailing on Any Portion of the
                 Challenged Cause of Action

          The Ajamians contend the trial court erred in parsing their unitary cause of action
for malicious prosecution, by striking those portions relating to Terzian-Feliz’s causes of
action for breach of contract and prescriptive easement. We agree.
          “The anti-SLAPP statute authorizes the court to strike a cause of action, but unlike
motions to strike under section 436, it cannot be used to strike particular allegations
within a cause of action.” (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric
Supply, Inc. (2006) 137 Cal.App.4th 1118, 1124; compare § 425.16, subd. (b)(1) [“A
cause of action against a person . . . shall be subject to a special motion to strike”] and
§ 436, subd. (b) [authorizing a court to strike “all or any part of any pleading”]; see
Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187 [“section 425.16
applies only to a cause of action, not to a remedy”]; Marlin v. Aimco Venezia, LLC (2007)
154 Cal.App.4th 154, 162 [“A SLAPP motion must be based on a cause of action, not a
prayer for relief” (capitalization omitted)].)
          To defeat an anti-SLAPP motion, a plaintiff therefore needs to establish only a
probability of prevailing on “ ‘any part’ ” of the challenged cause of action. (Oasis West


                                                 6
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis); Burrill v. Nair (2013) 217
Cal.App.4th 357, 379 (Burrill); Wallace v. McCubbin (2011) 196 Cal.App.4th 1169,
1211–1212 (Wallace); Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th
90, 106 (Mann).) As explained above, the purpose of the anti-SLAPP statute is to
prevent meritless litigation designed to chill the exercise of First Amendment rights.
(Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th
450, 463.) “ ‘[O]nce a plaintiff shows a probability of prevailing on any part of its claim,
the plaintiff has established that its cause of action has some merit and the entire cause of
action stands.’ [Citation.]” (Oasis, supra, 51 Cal.4th at p. 820; Burrill, supra, 217
Cal.App.4th at p. 379; Wallace, supra, 196 Cal.App.4th at pp. 1211-1212; Mann,supra,
120 Cal.App.4th at p. 106 [“Thus, a court need not engage in the time-consuming task of
determining whether the plaintiff can substantiate all theories presented within a single
cause of action and need not parse the cause of action so as to leave only those portions it
has determined have merit”].)
       In Oasis, a real estate development business sued its former attorney for breach of
fiduciary duty, professional negligence, and breach of contract when the attorney
withdrew from representing the business on a proposed redevelopment project and later
joined a community campaign to defeat the same project. (Oasis, supra, 51 Cal.4th at
pp. 815-816.) The trial court denied the attorney’s anti-SLAPP motion to strike the
business’s entire complaint. (Id. at pp. 816-819.) The Supreme Court affirmed that
decision because it found the business had established a probability of prevailing on one
of several alleged acts of misconduct. (Id. at pp. 821, 827 (concur. opn. of Kennard, J.).)
The Oasis court found it unnecessary to address whether the business established a
probability of prevailing on any other alleged misdeeds, explaining, “The complaint
identifies a number of acts of alleged misconduct and theories of recovery, but for
purposes of reviewing the ruling on an anti-SLAPP motion, it is sufficient to focus on just
one.” (Id. at p. 821.)
       Wallace summarized the Supreme Court’s Oasis decision: “Oasis clearly holds
that, where a cause of action (count) is based on protected activity, the entire cause of


                                              7
action may proceed as long as the plaintiff shows a probability of prevailing on at least
one of the asserted bases for liability. [¶] . . . Indeed, not only does Oasis permit the
entirety of the cause of action to go forward, it precludes consideration of the merit of
any other claims in the cause of action once a probability of prevailing is demonstrated as
to one of them.” (Wallace, supra, 196 Cal.App.4th at p. 1211.)
       Similarly, in Burrill, the appellate court applied this rule in a defamation action
that alleged the defendant uttered numerous defamatory statements. (Burrill, supra, 217
Cal.App.4th at pp. 379, 382.) There, a father made several statements critical of a court-
appointed reunification counselor who filed a report that subjected the father to a
domestic violence restraining order and significant restrictions on his child visitation
rights. (Id. at pp. 364-365.) The father made different comments in several online blogs,
during a radio interview, and in a flyer he distributed in the counselor’s neighborhood.
(Id. at pp.375-376.) The counselor sued the father for defamation based on those
statements and the father brought an anti-SLAPP motion. (Ibid.) The trial court denied
the motion because it found the counselor had established a probability of prevailing on
her claim. (Id. at pp. 376-378.) In affirming the trial court ruling, the Burrill court
applied Oasis and held the counselor need only show a probability of prevailing on one
of the numerous defamatory statements to defeat the motion. (Id. at p. 383.)
       Based on these authorities, we conclude that the trial court erred by parsing out the
breach of contract and implied easement causes of action. Once the trial court found the
Ajamians established some merit to their malicious prosecution cause of action by
showing a probability of prevailing on at least part of their claim, the court was required
to deny the motion. (Oasis, supra, 51 Cal.4th at pp. 820-821; Burrill, supra, 217
Cal.App.4th at pp. 379, 383; Wallace, supra, 196 Cal.App.4th at p. 1211; Mann, supra,
120 Cal.App.4th at p. 106.) In partially denying Terzian-Feliz’s anti-SLAPP motion, the
trial court determined that the Ajamians demonstrated a probability of prevailing on their
malicious prosecution claim vis-à-vis Terzian-Feliz’s causes of action for fraud, breach of
fiduciary duty, financial elder abuse, and implied easement. This ruling reflects the
Ajamians had established that their cause of action has some merit and, as such, the trial


                                              8
court was required to allow the entire cause of action to stand. (Oasis, supra, 51 Cal.4th
at pp. 820-821; Burrill, supra, 217 Cal.App.4th at pp. 379, 383; Wallace, supra, 196
Cal.App.4th at p. 1211; Mann, supra, 120 Cal.App.4th at p. 106.) Terzian-Feliz
disagrees with this conclusion, but the authorities she cites either do not support her
position or are readily distinguishable.
       Taus v. Loftus (2007) 40 Cal.4th 683 (Taus), is the principal authority Terzian-
Feliz cites to support her contention that a court must separately rule on each protected
activity alleged in a single cause of action, and must strike any allegation on which the
plaintiff fails to establish a probability of prevailing. In Taus, the plaintiff sued the
defendants on four causes of action based on numerous statements they made about the
plaintiff in articles and lectures on suppressed memories of childhood abuse. (Id. at
pp. 689, 701-702.) The trial court granted the defendants’ anti-SLAPP motion in part and
denied it in part by striking two causes of action as to some defendants and three causes
of action as to other defendants. (Id. at p. 702.) The Court of Appeal affirmed the trial
court’s ruling striking some of the plaintiff’s causes of action, but reversed the ruling on
portions of the causes of action the trial court allowed to remain. Specifically, the Court
of Appeal concluded the trial court should have struck some of the statements the
plaintiff alleged as the basis for the remaining causes of action even though the appellate
court allowed those claims to remain based solely on four of the many statements the
plaintiff alleged. (Id. at pp. 703-704, 711.) The Supreme Court granted the defendants’
petition for review to decide only whether the four statements the Court of Appeal
allowed to remain were protected activities and whether the plaintiff could establish a
probability of prevailing on any claim based on those statements. (Id. at pp. 703, 711-
712, 714-715.) The Supreme Court concluded that all four statements were protected
activities, but the plaintiff established a probability of prevailing on only one of them.
(Id. at p. 742.)
       Accordingly, the Taus court struck all but one portion of one cause of action under
the anti-SLAPP statute, but it did so without addressing whether the statute authorized a
court to strike a portion of a cause of action or whether the statute required a ruling on


                                               9
every protected act alleged in the challenged cause of action. (Taus, supra, 40 Cal.4th at
pp. 712-714, 742.) “ ‘ “It is axiomatic that cases are not authority for propositions not
considered.” ’ [Citations.]” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th
106, 127.) Moreover, Oasis was decided four years after Taus and it expressly held a
cause of action may not be stricken if the plaintiff establishes a probability of prevailing
on any portion of the cause of action. (Oasis, supra, 51 Cal.4th at pp. 820-821.)
Although Oasis did not expressly address Taus, subsequent cases have held that Oasis
implicitly overruled Taus. (Burrill, supra, 217 Cal.App.4th at p. 380; Wallace, supra,
196 Cal.App.4th at p. 1211; see City of Colton v. Singletary (2012) 206 Cal.App.4th 751,
787, 794 (dis. opn. of Richli, J.) (City of Colton).) We are bound to follow Oasis as the
most recent Supreme Court precedent on this issue. (Burrill, supra, 217 Cal.App.4th at
p. 382.)
       Terzian-Feliz also relies on City of Colton, supra, 206 Cal.App.4th 751. Although
this case allowed a trial court to strike portions of a cause of action under the anti-SLAPP
statute, it is readily distinguishable. Colton involved a single or mixed cause of action
based on both protected and unprotected activity. Colton struck the portions of the
causes of action based on protected activity because the plaintiffs failed to establish a
probability of prevailing, but allowed parts of the causes of action based on unprotected
activity to remain because the plaintiffs showed a probability of prevailing. (Colton,
supra, 206 Cal.App.4th at pp. 772-773.) Accordingly, the plaintiffs in City of Colton
failed to meet its burden under the second prong of the anti-SLAPP analysis because they
failed to show a probability of prevailing on any protected activity. We decline to follow
City of Colton because it relied on Taus without explaining why Oasis did not apply.
Indeed, Colton failed to even acknowledge Oasis (Colton, supra, 206 Cal.App.4th at
pp. 773-774).
       The anti-SLAPP statute is designed to prevent plaintiffs from filing meritless
claims to chill protected speech. Once the complainant has shown the cause of action has
merit, the rationale for quickly disposing of meritless claims no longer applies. As Oasis
notes, a probability of prevailing on any part of a cause of action will defeat an anti-


                                             10
SLAPP attack. (Oasis, supra, 51 Cal.4th at p. 820.) Here, as explained below, we
conclude the Ajamians established a probability of prevailing on at least some of the
causes of action in the underlying case on which the Ajamians have based their malicious
prosecution action, and thus City of Colton does not apply.
       2.     The Ajamians Have Satisfied Their Burden
       To meet their burden in the second stage of the anti-SLAPP analysis, plaintiffs
must establish a probability of prevailing on the challenged cause of action by
“ ‘demonstrat[ing] 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, supra, 28 Cal.4th at p. 821.)
“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant [citation]; 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’ [citation] to avoid being stricken as a SLAPP.
[Citations.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291
(Soukup); Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1147.)
       The sole cause of action at issue here is the Ajamians’s malicious prosecution
claim. To prevail on a malicious prosecution claim, a plaintiff must plead and prove that
the prior action “(1) was commenced by or the direction of the defendant and was
pursued to a legal determination favorable to the plaintiff; (2) was brought without
probable cause; and (3) was initiated with malice.” (Soukup, supra, 39 Cal.4th at p. 292.)
We focus on the probable cause element.3


3
        Terzian-Feliz did not contest the malice element in the trial court and does not
raise it on appeal. Accordingly, to the extent any claim of absence of malice could be

                                              11
       “The question of probable cause is ‘whether, as an objective matter, the prior
action was legally tenable or not.’ ” (Soukup, supra, 39 Cal.4th at p. 292.) “To make a
prima facie case of a lack of probable cause in response to the anti-SLAPP motion, [the
plaintiff] must submit substantial evidence showing no reasonable attorney would have
thought the [prior] action was tenable in light of the facts known . . . at the time the suit
was filed [citations], or that [the plaintiffs] continued pursuing the lawsuit after they had
discovered the action lacked probable cause.” (Mendoza v. Wichmann (2011) 194
Cal.App.4th 1430, 1449 (Mendoza), citing Zamos v. Stroud (2004) 32 Cal.4th 958, 966-
970.) “ ‘Only those actions that “ ‘any reasonable attorney would agree [are] totally and
completely without merit’ ” may form the basis for a malicious prosecution suit.’ ”
(Mendoza, supra, 194 Cal.App.4th at p. 1449.) “[A]n action for malicious prosecution
lies when but one of alternate theories of recovery is maliciously asserted . . . .” (Bertero
v. National General Corp. (1974) 13 Cal.3d 43, 57, fn. 5.)
       Whether a reasonable attorney would have thought the claim legally tenable is a
legal issue. (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184
Cal.App.4th 313, 333.) This legal question is to be determined on the basis of whether as
an objective matter, the prior action was legally tenable. (Ibid.)
       The trial court granted nonsuit on the breach of contract and implied easement
causes of action asserted in the underlying action. The granting of the nonsuit establishes
only that Terzian-Feliz could not marshal the necessary evidence to prevail on her
contract and implied easement theories, but proof of lack of probable cause requires
more. (See Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 320.)
              a.      Breach of Contract
       Terzian-Feliz argues the Ajamians could not establish a probability of prevailing
on the breach of contract cause of action because they were not named defendants with
respect to that cause of action. We disagree. Although the complaint purports to name
only AEI as the defendant in the title of the breach of contract cause of action, the

raised, this argument is forfeited on appeal. (See Mundy v. Lenc (2012) 203 Cal.App.4th
1401, 1406.)

                                              12
allegations contained within this cause of action clearly refer to the Ajamians
individually, as well as doing business as AEI. Specifically, the breach of contract cause
of action alleges that AEI, “acting by and through [d]efendants Vartan and Margarita
Ajamian, breached the contract . . . by conducting its improvement duties on [Terzian-
Feliz’s] home in accordance with the conflicting, personal, adverse interests in the
remodel and sale of Vartan and Margarita Ajamian’s own adjacent home, in conflict with
[d]efendant [AEI] and [d]efendants Vartan and Margarita Ajamian’s duties to carry out
their work in the best interests and welfare of [Terzian-Feliz] and her property pursuant
to said home improvement contract.” (Italics added.)
       In the trial court, Terzian-Feliz argued that she presented evidence of the
Ajamians’s breach of the implied covenant of good faith and fair dealing by placing the
portable toilet in the location that they did, reasoning that a different placement might
have impeded the sale of their home. The trial court granted the Ajamians’ motion for
nonsuit on the breach of contract cause of action, finding it was based on the
disagreement about the placement of the portable toilet, which did not rise to the level of
a breach of the implied covenant of good faith and fair dealing. (Terzian-Feliz v.
Ajamian, supra, A119333.)
       On appeal, we held the nonsuit motion was properly granted, explaining: “The
gravamen of the breach of contract claim in her complaint is that the Ajamians
subjugated her interests to their own by initially placing the portable toilet in a location
that displeased her. She contends, in essence, that the Ajamians’ decision to place the
portable toilet in a location that might be more desirable to them as sellers of their own
home was a conflict of interest constituting a breach of contract to remodel her home. In
so doing, she confuses the duty required by the covenant of good faith and fair dealing
and a fiduciary duty. The two duties differ; the implied covenant does not create a
fiduciary duty, but merely affords a basis for redress of a breach of contract. (Wolf v.
Superior Court (2003) 107 Cal.App.4th 25, 31.) Terzian-Feliz would impute to the
Ajamians obligations that were not contemplated by the contract. We cannot do so.
[Citation.]” (Terzian-Feliz v. Ajamian, supra, A119333.)


                                              13
       Whether a reasonable attorney would have thought Terzian-Feliz’s breach of
contract claim legally tenable is a legal issue. (Franklin Mint Co. v. Mannat, Phelps &
Phillips, LLP, supra, 184 Cal.App.4th 313, 333.) This legal question is to be determined
on the basis of whether as an objective matter, the prior action was legally tenable.
(Ibid.) Objectively speaking, no reasonable attorney would have thought that a less than
desirable placement of a portable toilet constituted a legally tenable basis for pursuing a
breach of contract claim. It is said that “[t]he malicious commencement of a civil
proceeding is actionable because it harms the individual against whom the claim is made,
and also because it threatens the efficient administration of justice. The individual is
harmed because he is compelled to defend against a fabricated claim which not only
subjects him to the panoply of psychological pressures most civil defendants suffer, but
also to the additional stress of attempting to resist a suit commenced out of spite or ill
will . . . . In recognition of the wrong done the victim of such a tort, settled law permits
him to recover the cost of defending the prior action including reasonable attorney’s fees
[citations], compensation for injury to his reputation or impairment of his social and
business standing in the community [citations], and for mental or emotional distress.”
(Bertero v. National General Corp., supra, 13 Cal.3d 43, 50-51, fn. omitted.) As well,
“[t]he judicial process is adversely affected by a maliciously prosecuted cause not only
by the clogging of already crowded dockets, but by the unscrupulous use of the courts by
individuals ‘ . . . as instruments with which to maliciously injure their fellow men.’
[Citation.]” (Id. at p. 51.)
       Terzian-Feliz attempts to insulate herself from tort liability by claiming that any
harm caused by the breach of contract claim was directed at AEI, not the Ajamians. The
record, however, belies this claim. As discussed, Terzian-Feliz was upset that the
Ajamians put their own needs above hers. (Terzian-Feliz v. Ajamian, supra, A119333.)
The breach of contract cause of action alleged wrongdoing by the Ajamians in their
corporate, as well as individual capacities. Accordingly, we conclude the Ajamians
established a prima facie case of lack of probable cause with respect to the breach of
contract cause of action.


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              b.      Implied Easement
       Even disregarding the breach of contract cause of action, the Ajamians established
a prima facie case of lack of probable cause with respect to the implied easement cause of
action. “The crucial issue in determining lack of probable cause is the information
possessed by the attorney and/or client at the time the suit is filed, and throughout the
lawsuit.” (Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225
Cal.App.4th 660, 685-687.)
       As we previously explained in Terzian-Feliz v. Ajamian, supra, A119333, the law
of implied easements is clear. An easement will be implied if three conditions are shown
to have existed at the time of conveyance of the property. First, the property owner
conveyed or transferred a portion of the property to another. Second, the owner’s prior
use of the property was such that the parties must have intended or believed that this use
would continue. The existing use must either have been known to the grantor and
grantee, or that existing use must have been so obviously and apparently permanent that
these parties should have known of its use. Third, the easement must have been
reasonably necessary to the use and benefit of the quasi-dominant tenement. (Tusher v.
Gabrielsen (1998) 68 Cal.App.4th 131, 141.) The purpose of the doctrine of implied
easements is to give effect to the “actual intent” of the parties, based on the totality of the
circumstances. (Ibid.) An implied easement requires clear evidence that it was intended
by the parties. (Id. at pp. 141-143.)
       It is undisputed that the properties owned by Terzian-Feliz and the Ajamians
were once under common ownership. In 1954, the prior owners, Adalbert and Marie
Louise von Rotz, subdivided one parcel in a manner that created the two lots—40 Steven
Court (No. 40) and 60 Steven Court (No. 60). When granting the Ajamians’ motion for
nonsuit on Terzian-Feliz’s implied easement cause of action, the trial court found that she
offered no evidence of prior use. In her prior appeal challenging this ruling, Terzian-
Feliz, citing the topography of the area, argued that the von Rotzes “must have” used the
No. 40 driveway to access No. 60 and “must have” intended the owners of No. 60 to
continue using the No. 40 driveway after the two lots were split from unitary ownership.


                                              15
As we previously explained, this argument is not evidence, but mere speculation about
what might have happened in the 1950’s before the subdivision occurred. (See
Markowitz v. Fidelity Nat. Title Co. (2005) 142 Cal.App.4th 508, 520; Alvarez v. Jacmar
Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1209.) Speculation cannot support an
inference of prior use. This is particularly so because of the need for clear evidence of the
von Rotzes’s intent to create an implied easement. (See Tusher v. Gabrielsen, supra, 68
Cal.App.4th at pp. 141-143.) (Terzian-Feliz v. Ajamian, supra, A119333.)
       Terzian-Feliz’s only evidence related to the use of the No. 40 driveway to access
No. 60 that occurred after the two lots were subdivided. She offered no evidence that the
von Rotzes needed or used the No. 40 driveway. In fact, there was no evidence that this
driveway even existed when the two lots were subdivided. In the face of this complete
dearth of evidence, Terzian-Feliz’s claim of implied easement was not legally tenable.
(Terzian-Feliz v. Ajamian, supra, A119333.)
                                   III. DISPOSITION
       The order granting the special motion to strike is reversed.




                                                  _________________________
                                                  REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




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