Filed 2/3/16 Bucur v. Vithlani CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



VIOREL BUCUR,

         Plaintiff and Appellant,                                        E063738

v.                                                                       (Super.Ct.No. RIC1500708)

DILIP VITHLANI,                                                          OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge.

Affirmed.

         Viorel Bucur, in pro. per., for Plaintiff and Appellant.

         Law Offices of Dilip Vithlani, Dilip Vithlani; Law Offices of Ricardo Figueroa

and Ricardo A. Figueroa for Defendant and Respondent.




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                                             I

                                   INTRODUCTION1

       Plaintiff and appellant Viorel Bucur appeals from the trial court’s order granting

defendant Dilip Vithlani’s anti-SLAPP motion to strike the tenth cause of action for

malicious prosecution. (Code Civ. Proc., §§ 425.16, subd. (i); 904.1, subd. (a)(13).)2

The key issue is Bucur’s claim that Vithlani, a lawyer, never represented Bucur and

therefore could not sue Bucur to recover attorney’s fees in a cross-complaint in another

case, RIC1305031. The record shows, however, that Bucur, doing business as Liguari

Products, Inc. (Liguari), signed a fee agreement with Vithlani on April 29, 2011. Bucur

subsequently executed three attorney substitutions on January 9, 2013, replacing Vithlani

with another lawyer, George A. Saba.3 Bucur also alleged in a cross-complaint that he

and his two companies had all hired Vithlani. Because it is abundantly clear that Vithlani

is Bucur’s former lawyer, and therefore Bucur cannot demonstrate the probability of

prevailing, we affirm the order granting the motion to strike.


       1We take judicial notice of a recently published case from Division One, Bucar v.
Ahmad (Jan. 26, 2016, D068689) 2016 Cal.App. LEXIS 48, which is related litigation
imposing $56,311 in sanctions against Bucur.

       2 All further statutory references are to the Code of Civil Procedure unless stated
otherwise.

       3 We grant respondent’s request for judicial notice, filed November 4, 2015.
(Evid. Code, § 452, subd. (d).)



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                                             II

                    FACTUAL AND PROCEDURAL BACKGROUND

       Bucur, acting as his own attorney, has not followed appellate rules and protocol.

Nevertheless, we have reviewed the record and summarized the pertinent facts. Some

information is derived from a previous appeal, Bucur v. Ujkaj, E060451 (the Ujkaj

action.)

A. The Wasarhelyi and Ujkaj Actions

       As previously described in the Ujkaj appeal, Bucur and his two companies,

Liguari and VLB Associates Inc. (VLB),4 were sued in 2011 by Chuck Wasarhelyi, in a

dispute about two commercial contracts with FedEx (the Wasarhelyi action, case No.

RIC1106033.) In January 2013, Saba, instead of Vithlani, began representing Bucur. In

April 2013, a jury returned a special verdict in favor of Wasarhelyi.

       In 2013, Bucur filed the Ujkaj complaint, RIC1305031. Vithlani and Bucur also

filed cross-complaints against one another in the Ujkaj case. Bucur and his companies

asserted claims of legal malpractice and related causes of action against Vithlani.

Vithlani sought to recover his attorney’s fees incurred in the Wasarhelyi case while

representing Bucur, VLB, and Liguari. In July 2014, Vithlani dismissed the part of his




       4   Bucur admits he is the president of Liguari and VLB.



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collections claim against Bucur and VLB because he could collect a default judgment

against Liguari as a suspended corporation.

       In November 2014, the court awarded judgment against Bucur and VLB and in

favor of Vithlani after a court trial. The court also granted Vithlani a default judgment of

about $22,000 against Liguari.

B. The Present Complaint and the Motion to Strike

       In January 2015, Bucur filed a complaint for damages against Vithlani and other

defendants, which included the tenth cause of action for malicious prosecution.5 Vithlani

countered by filing a motion to strike the tenth cause of action. The central dispute

involves whether Bucur could demonstrate the probability of prevailing in light of the

facts that Vithlani had represented Bucur and Vithlani won his action against Liguari to

collect attorney’s fees. Bucur’s response was to argue that Vithlani had never

represented him personally. After a hearing, the trial court granted the motion to strike.

Bucur appeals.

                                              III

                                      DISCUSSION

       We conduct an independent review of the trial court’s ruling on an anti-SLAPP

motion. (Bernardo v. Planned Parenthood Federation of America (2004) 115

       5 Bucur incorrectly cites to his first amended complaint, which was not the
subject of the anti-SLAPP motion.



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Cal.App.4th 322, 339; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834,

839.) By its terms, the anti-SLAPP statute applies to any cause of action against a

defendant “arising from any act of that person in furtherance of the person’s right of

petition or free speech . . . .” (§ 425.16, subd. (b).) A claim affecting the exercise of

these rights is subject to a special motion to strike unless the court determines there is a

probability that the complainant will prevail on the claims. (§ 425.16, subd. (b).) The

anti-SLAPP statute protects against the use of the judicial system to chill the

constitutionally-protected right to make statements or writings before judicial or other

official proceedings, and in connection with an issue under consideration or review by a

judicial body or other legally authorized official proceeding. (§ 425.16, subd. (e).)

       The anti-SLAPP statute “posits . . . a two-step process for determining whether an

action is a SLAPP.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Here the parties

agree that Vithlani’s cross-complaint to collect attorney’s fees arises from rights as

defined in section 425.16, subdivision (c). (Equilon Enterprises v. Consumer Cause, Inc.

(2002) 29 Cal.4th 53, 61.) Therefore, the burden shifts to Bucur, the opposing party, to

establish a “probability” that he will prevail. (§ 425.16, subd. (b); Equilon, at p. 61.)

Bucur must demonstrate that his claim is supported by a sufficient prima facie showing of

facts to sustain a favorable judgment. (Premier Medical Management Systems, Inc. v.

California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476; Chavez v. Mendoza

(2001) 94 Cal.App.4th 1083, 1087.)



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       As for the probability of prevailing, the second prong of the SLAPP analysis, an

opposing party is “required both to plead claims that were legally sufficient, and to make

a prima facie showing, by admissible evidence, of facts that would merit favorable

judgment on those claims, assuming plaintiff’s evidence were credited.” (1-800

Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584.)

       Bucur cannot make the required showing because he cannot assert a viable claim

for malicious prosecution against his former attorney. Based on the record, Bucur cannot

show the elements of malicious prosecution: “A plaintiff must plead and prove three

elements to establish the tort of malicious prosecution: a lawsuit ‘(1) was commenced by

or at the direction of the defendant and was pursued to a legal termination favorable to

the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.’

[Citation.]” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872-873.)

       Bucur contends Vithlani’s successful complaint to recover attorney’s fees was

brought without cause and with malice because Vithlani never represented him. The

record contradicts his position. According to the evidence, Bucur personally executed an

attorney-client fee agreement in April 2011. Although Bucur executed the agreement

while “doing business as” Liguari, the two were not separate legal entities. (Pinkerton’s,

Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348.) Instead, Vithlani represented

Bucur and both his companies until Bucur replaced Vithlani with Saba in January 2013.

In November 2013, Bucur sued Vithlani for legal malpractice, alleging Vithlani had



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represented him and his two companies. Bucur lost that claim and Vithlani won on his

cross-complaint against Liguari.

        Bucur is incorrect in his assertion that Vithlani did not represent him. Therefore,

Bucur cannot show he received a favorable legal termination or that the collections action

was brought without cause and with malice. Under such circumstances, where Bucur

could not establish the probability of prevailing the trial court properly granted the anti-

SLAPP motion. (Nunez v. Pennisi, supra, 241 Cal.App.4th at pp. 874-879.)

                                             IV

                                       DISPOSITION

       We affirm the judgment. In light of our conclusions, we need not discuss any

additional issues raised by Bucur. Vithlani is entitled as the prevailing party to recover

his costs and attorney’s fees on appeal. (Lucky United Properties Investment, Inc. v. Lee

(2010) 185 Cal.App.4th 125, 138-139.)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 CODRINGTON
                                                                                               J.

We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                           J.


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