Filed 9/27/16 Hakim v. Beshay CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


SUZAN HAKIM,
                                                                     B260468
         Plaintiff, Cross-Defendant and
         Respondent,                                                 (Los Angeles County
                                                                     Super. Ct. No. BC419205)
         v.

MAGED BESHAY, et al.,

         Defendants, Cross-Complainants
         and Appellants.


MAGED BESHAY, et al.,                                                B265065

         Plaintiffs and Respondents,                                 (Los Angeles County
                                                                     Super. Ct. No. BC557681)
         v.

SUZAN HAKIM,

         Defendant and Appellant.


         APPEAL from a judgment and orders of the Superior Court of Los Angeles
County. Yvette M. Palazuelos and Dalila C. Lyons, Judges. Judgment in No. B260468
affirmed in part and modified; order on attorney fees and nonstatutory costs affirmed.
Order in No. B265065 reversed and remanded with directions.
       Law Offices of Beverly J. Bickel and Beverly J. Bickel for Maged Beshay and
MarioMina, Inc.
       James S. Link for Suzan Hakim.


                                _______________________


       Pharmacists Suzan Hakim and Maged Beshay formed MarioMina, Inc. in 2008 to
purchase and run a pharmacy, but their relationship rapidly soured, and the parties have
been engaged in litigation since 2009. After securing an advantageous outcome in a prior
appeal (Hakim v. Beshay (Jan. 13, 2014, B240527) [nonpub. opn.]), on remand Beshay
and MarioMina have attempted to deny Hakim compensation for her share of the
corporation and to obtain what amounts to a double recovery of funds that Hakim
withheld. Perceiving skepticism on remand, they filed a new, separate action against
Hakim. In Case No. B260468, Beshay and MarioMina’s appeal from the court’s
amended judgment following remand in the original action and its subsequent order
denying their motion for attorney fees and nonstatutory costs, we modify the judgment on
the conversion claim but otherwise affirm. In Case No. B265065, we reverse the court’s
order denying Hakim’s special motion under Code of Civil Procedure section 425.16 as
to three causes of action in the later-filed lawsuit.

                  FACTUAL AND PROCEDURAL BACKGROUND
       In 2008, Beshay and Hakim formed MarioMina for the purpose of purchasing and
opening a pharmacy. According to Beshay, the pharmacy, EO Pharmacy, opened at the
beginning of March 2009; and by approximately the second week of that month the
parties were already discussing one buying out the other. The parties were unable to
resolve their issues, and in 2009 Hakim sued Beshay and MarioMina, alleging causes of
action including breach of contract and dissolution of the corporation. Beshay and
MarioMina cross-complained. The complaint and cross-complaint were tried separately
before Judge Yvette Palazuelos.


                                               2
       I.     Proceedings on Hakim’s First Amended Complaint
       Hakim contended that on May 5, 2009, she and Beshay agreed that he would buy
her 50 percent interest in MarioMina for $60,000. Beshay maintained that no agreement
was ever reached and that Hakim remained a 50 percent shareholder in MarioMina.
       On January 11, 2011, the jury found that Beshay had breached the contract and
determined that Hakim’s damages were “$60,000.00, plus her attorney’s fees and her
court costs.” After the verdict, the trial court asked the parties to meet and confer
concerning an appropriate resolution to Hakim’s remaining equitable cause of action for
dissolution of the corporation.
       Hakim no longer needed to pursue dissolution of MarioMina in light of the verdict
that Beshay had breached the contract. On January 12, 2011, the day after the verdict,
Hakim and Beshay agreed to resolve her dissolution cause of action by stipulated order.
The stipulation provided that “effective May 5, 2009, Plaintiff Suzan Hakim was not a
shareholder, officer or director of Mario Mina, Inc., nor a pharmacist or employee of EO
Pharmacy.” Although the order (the “stipulated order”) did not explicitly dismiss the
dissolution cause of action, it appears that the court and the parties considered it a
dismissal.
       The court signed the parties’ stipulated order on February 4, 2011, and on the
same day entered judgment in Hakim’s favor on the breach of contract claim. The court
awarded prejudgment interest and attorney fees, for a total judgment of $110,356.60
entered on June 9, 2011.
       Beshay did not pay or bond the June judgment, and Hakim began collection
proceedings. She obtained a writ of execution in October 2011, levied Beshay’s bank
accounts in April 2012, and then applied for an order for sale of his home in December
2011. The record on appeal includes an acknowledgment of full satisfaction of judgment
filed in January 2013. According to Beshay, he paid $161,853.27 to satisfy the judgment.




                                              3
       II.    Proceedings on Beshay and MarioMina’s First Amended Cross-
              Complaint

       Beshay and MarioMina cross-complained against Hakim for, inter alia, breach of
contract and conversion. They alleged that Hakim had fraudulently opened a bank
account in MarioMina’s name and deposited checks belonging to MarioMina into that
account. Although the first amended cross-complaint identified both Beshay and
MarioMina as plaintiffs, Beshay was the plaintiff in the breach of contract action and
MarioMina was the plaintiff on the conversion claim, and the special verdict form
identified the plaintiff for each cause of action accordingly.
       On June 30, 2011, after the judgment in Hakim’s action against Beshay but before
trial on the cross-complaint, Hakim tendered to MarioMina a cashier’s check in the
amount of $20,052.76, representing $16,782.69 in checks and 10 percent interest, for the
checks that she had diverted from the corporation. At trial, Hakim testified that she
withheld checks amidst disagreements with Beshay over the buyout and operation of the
pharmacy, but that she returned the money to MarioMina once her breach of contract
claim was resolved. A copy of the check, the accompanying accounting, and the cover
letter were admitted into evidence.
       MarioMina did not dispute Hakim’s tender of these funds. MarioMina
acknowledged the tender prior to trial on the cross-complaint, during arguments outside
the presence of the jury during trial, and in closing argument.
       The court granted MarioMina a directed verdict on liability for conversion. In
closing argument on damages, MarioMina sought the amount of checks plus prejudgment
interest, lost profits of $2080 per month from the date of the conversion to June 2011, and
$12,750 in damages for Beshay’s lost time in attempting to recover the amounts that were
converted.
       Although the special verdict form asked the jury to determine only what
MarioMina’s damages were, if any, “for conversion of checks,” the jury awarded
damages in three specifically identified categories: $16,782.69 for checks, $500 in cash
taken on May 9, 2009, and $3,270.07 in interest. In the amended judgment, entered

                                              4
March 13, 2012, MarioMina was awarded the above amounts, plus costs of $2,595.62
and post-verdict interest.
       The jury found against Beshay on his breach of contract action against Hakim,
concluding that there was a contract between Hakim and Beshay but that Beshay had
neither performed his obligations under the contract nor been excused from doing so.

       III.    First Appeal, Case No. B240527
       A. Breach of Contract Judgment and Order
       Beshay appealed the breach of contract judgment, arguing that there was
insufficient evidence to support the judgment because there was no evidence the parties
had formed a contract. In his opening brief, Beshay contended that the parties had on
May 5, 2009, “agreed to nothing except that if they later mutually agreed to a formal buy-
out agreement, that Beshay would at that time pay Hakim $60,000 for her interest.” As
the parties never agreed on a written buyout agreement, he argued, no contract was
formed.
       At oral argument, counsel for Beshay and MarioMina argued that there had been
“a failed negotiation reaching no agreement at all.” Therefore, he affirmed, Hakim “is
still a shareholder of the business, absolutely. And so she is not without a remedy” if
there was no buyout agreement. Counsel represented that Hakim’s “remedy is to dissolve
the corporation, which she’s entitled to do as a 50 percent shareholder. That was never
disputed in the underlying trial, that she was a shareholder at the time of the trial . . . .”
       It does not appear from our review of the record in Case No. B240527 that any
party advised this court of the post-verdict stipulated order providing that as of May 5,
2009, Hakim was no longer a shareholder of MarioMina. The order is not included in the
clerk’s transcript or the additional documents submitted to augment the record. It was
not mentioned in Beshay and MarioMina’s opening brief or their reply brief, and it was
not addressed at oral argument.
       Beshay’s argument that there was insufficient evidence that the parties entered
into a contract was successful on appeal. This court found “the determination that Hakim


                                                5
and Beshay had entered into an enforceable contract is not supported by substantial
evidence.” (Hakim v. Beshay, supra, B240527, p. 7.) We reversed the breach of contract
judgment and the attorney fee order, and ordered the trial court to enter judgment in
Beshay’s favor. (Id. at pp. 7, 9.)

       B. Conversion Judgment
       Hakim appealed the conversion judgment to the extent that it included post-verdict
interest on the entire damages award. She argued that because she tendered prior to trial
all but $500 of the damages from the converted checks plus interest, post-verdict interest
should only have been assessed on the outstanding $500 she had not tendered. Beshay
and MarioMina acknowledged in their briefing that Hakim had mailed a check in the
amount of $20,052.76 to their counsel on June 30, 2011.1 We affirmed the conversion
judgment. (Hakim v. Beshay, supra, B240527, pp. 8-9.)

       IV.    Proceedings on Remand
       On remand, the trial court held four hearings over a series of months to establish
the appropriate scope and contents of a final judgment consistent with the instructions
from this court. Each party submitted multiple proposed judgments and objected to and
responded to the proposed judgments filed by the other. Although the parties disputed
countless matters, several issues emerged as central questions in the development of a
new judgment: what impact, if any, the reversal had on the stipulated order concerning
the dissolution cause of action, and what procedural posture the parties were in as a result
of the reversal of the breach of contract judgment; whether the judgment should include
restitution, costs, and fees in light of the reversal of the breach of contract judgment; and
whether the new judgment should include an offset for money tendered by Hakim to
MarioMina to compensate for the checks she had withheld.



1       They represented to the court that they “did not accept it,” but provided no citation
to the record to support this assertion.


                                              6
       A. Arguments of the Parties
           1. Issues Pertaining to Reversal of Breach of Contract Judgment
       Shortly after the trial court regained jurisdiction over the matter in March 2014, it
ordered Beshay to file and serve a proposed judgment. Beshay’s attorney filed a
proposed judgment that, consistent with his representation to this court that Hakim was
and would remain a 50 percent shareholder in MarioMina, included a provision “ordering
[the] stipulated order from 2011 to be vacated.” Beshay then fired his attorney and
retained new counsel, who attempted to cause the trial court to disregard the previously-
filed proposed judgment and filed a new proposed judgment that would leave Hakim
without an ownership interest in MarioMina, give her no compensation for that interest,
and require her to return all money expended in satisfaction of judgment plus costs,
further restitution, and interest.
       In early briefing Beshay claimed that the Court of Appeal had “made no ruling on
whether the contract exists,” that the Court of Appeal had held “that there was a contract
between the parties but it is not sufficiently enforceable to support a breach of contract
claim,” and that there was no basis to support Hakim’s position that the Court of Appeal
“nullified” the contract. He argued that Hakim, having consistently maintained that she
had sold her interest in the pharmacy, was now estopped from claiming otherwise. In
later briefing Beshay argued that there were actually two contracts between the parties:
first an oral contract formed on May 5, 2009, and later a written contract that was
unenforceable because it was unsigned. He claimed that Hakim “did not seek to enforce
[the oral contract] at trial or on appeal,” that she “lost on appeal because she chose to
base her claim at trial on an unsigned written contract,” and that as a result she was
without any remedy and “must live with [the] consequences” of her litigation strategy.
       Beshay further argued that Hakim had no interest in MarioMina after the reversal
of the judgment because she had stipulated that as of May 5, 2009, she was not a
shareholder of MarioMina. He contended that our decision did not “state, or even imply,
that Hakim is now a shareholder of MarioMina, Inc.,” and that the trial court had no
authority to restore Hakim to the position she was in before the original verdict. He

                                              7
asserted that restitution could only be awarded to the prevailing party, and because
“Hakim lost on all counts; she gets nothing as a result.” Even if restoration or restitution
were available to Hakim, Beshay continued, the court could only restore her to the
position she was in before the erroneous judgment was imposed; because she had agreed
to the stipulated order before the final judgment was entered in March 2012, she was
entitled to nothing. Beshay predicted dire consequences if Hakim were restored to her
ownership interest in MarioMina, advising the court that he, MarioMina, members of the
Beshay family, government agencies, and private insurers had relied on the stipulated
order and warning that the pharmacy would be decertified and cease to operate if Hakim
were associated with the business again.
       Beshay argued that the court should not vacate the stipulated order because Hakim
did not timely seek to vacate the order or challenge it on appeal and because there was no
basis in the verdict, judgment, appeals, or appellate decision for doing so. He alleged that
Hakim wanted the order vacated so that she could undermine the conversion judgment on
a theory that as an owner, officer, and director of MarioMina she had authority to take
possession of corporate checks. Vacating the stipulated order, he wrote, would
“undermine the integrity of the appellate record” and “destroy[] the basis” of this court’s
opinion on appeal.
       Beshay proposed that the court enter judgment in his favor on the breach of
contract cause of action and award him costs on that claim. Beshay also argued that
because the breach of contract judgment was reversed, the amount that he had paid in
satisfaction of that judgment should be returned to him with 10 percent interest. Beshay
defended the trial court’s power to make a restitution order in a judgment after reversal:
“Nothing forbids this Court from providing for restitution in a judgment.” He reminded
the court that it had “the inherent power to order restitution” after the reversal of a
judgment, and urged that it was “proper to include restitution with other remedies in a
new judgment after reversal.”
       Hakim proposed that the judgment state that the judgment on the contract claim,
and the associated attorney fee award, had been reversed. She argued that reversal of the

                                               8
breach of contract judgment required the court to vacate the stipulated order. She argued
that the court’s judgment should not include any provisions for restitution “as that is an
entirely separate proceeding.” She contended that restitution was not automatic, could be
denied when equity so required, and was a matter of the court’s discretion.

          2. Issues Pertaining to Conversion Judgment
       On the conversion claim, Hakim proposed carrying forward the original judgment
amount, imposing additional post-verdict interest, and deducting the amount that she
previously had tendered to MarioMina prior to the initial entry of judgment, for a final
amount due to MarioMina of $5,733.90.
       MarioMina argued that the conversion judgment should not include an offset for
the $20,052.76 Hakim had tendered to MarioMina. MarioMina claimed that this issue
had been before the jury but that the jury had not given her credit for this amount.
MarioMina also contended that the Court of Appeal’s factual recitation that the jury had
concluded that Hakim owed MarioMina $20,552.76 constituted a determination that
Hakim should not be credited with the amount she had tendered. Therefore, MarioMina
argued, to include a credit for the $20,052.76 would contradict the jury’s findings and
this court’s opinion.

       B. July, August, September 2014 Hearings
       At the court’s first hearing on the post-remand judgment, in July 2014, Hakim
argued that as a matter of equity, the reversal required the court to vacate the stipulated
order that provided that she was not a shareholder of MarioMina as of May 9, 2009.
While this court had not specifically required any action with respect to the stipulation in
its instructions on remand, Hakim argued that vacating the stipulation was the only
sensible step; if the trial court did not do so, Beshay would end up with all the shares of
MarioMina and Hakim would have nothing. Vacating the stipulation, Hakim proposed,
would be consistent with Beshay’s representation on appeal that Hakim owned a 50
percent interest in MarioMina.



                                              9
       With respect to restitution, Beshay argued that he was entitled to restitution of the
amount paid to satisfy the now-reversed judgment and the costs he incurred in response
to Hakim’s efforts to collect on that judgment. He advocated that the judgment should
include an order for restitution with a blank line for the exact amount of restitution to be
filled in later, similar to the usual procedure for a costs award. Hakim opposed the
inclusion of a restitution order in the judgment because restitution was an equitable
determination requiring the resolution of issues including the reasonableness of Beshay’s
claims and Hakim’s half-ownership of the corporation. Beshay rejoined that the
stipulated order resolved all ownership questions and that he, MarioMina, and others had
relied upon that stipulation.
       The court proposed addressing restitution in a summary proceeding after the
judgment, but Beshay argued that the judgment would only be valid if it reflected all his
damages, including restitution. The court offered to amend the judgment once restitution
was determined. Beshay explained to the court that he needed the judgment to state that
he was owed restitution so that he could commence collection efforts against Hakim
concerning the now-reversed judgment, and he complained that she had not yet paid him
despite having made “repeated demands.” The court observed that Hakim had not paid
Beshay because restitution was “still in dispute.”
       Although the court clarified that it was not ruling that Beshay was not entitled to
restitution, only that the issue would be determined in a later summary proceeding,
Beshay pressed the court to include an award of restitution with a space for the amount of
restitution to be entered in later. The trial court declined this request, explaining that
“There’s no mention of restitution in the Court of Appeal [opinion]. Restitution may be
included at the discretion of the trial court pursuant to a summary proceeding. We have a
summary proceeding, and I award restitution. Restitution will go into the judgment. We
can amend the judgment and include it, but I’m not going to do that at this point . . . .”
The court suggested, and Hakim agreed, that the issue of the amount that Hakim had
tendered to MarioMina for the checks she had withheld also could be considered in the
later summary proceeding for restitution.

                                              10
       The trial court agreed with Hakim that the stipulated order had been contingent on
the outcome of the initial trial. The court recalled that it had intended to conduct a
separate court trial on dissolution because it was an equitable cause of action, but that
once the jury returned the verdict finding that Beshay had breached the parties’ contract,
it had asked the parties to meet and confer to resolve the claim. The court told the
parties, “So it’s contingent on the jury verdict that they meet and confer to dispo[se of]
this particular claim and the jury verdict is now vacated, it seems to me it affects that
stipulation.”
       Beshay argued that the Court of Appeal’s decision did not impact the stipulation,
interpreting this court’s decision as holding that there was an oral contract between
Hakim and Beshay for the sale of her shares; the trial court disagreed. Beshay reasoned
that Hakim’s claim to an interest in the pharmacy was “a separate issue” that she should
have raised as an unjust enrichment or similar claim.
       At the second hearing, in August 2014, Hakim continued to maintain that the
reversal of the judgment invalidated the stipulated order because the parties had entered
into it based on the jury’s verdict and so that Beshay could continue to operate
MarioMina. Hakim argued she remained a MarioMina shareholder. Beshay argued that
vacating the stipulated order would allow Hakim to challenge the conversion judgment
by arguing that she had been entitled to take possession of pharmacy checks. Hakim
acknowledged that she could not attempt to vacate that judgment.
       Hakim advised the court that the result of the reversal was that “they are
shareholders again,” and the court asked whether it should try the dissolution cause of
action. Hakim responded that the case had not been remanded for a new trial, but that
Beshay could seek dissolution if he so desired. If either Hakim or Beshay sought
dissolution, Hakim observed, MarioMina’s value and how the parties should be
compensated for their shares would be determined. Beshay argued that if Hakim were
restored to her position at the pharmacy, it would be unable to operate. In response, the
court told him, “You’re stuck with that, is basically what I am trying to say. They [the



                                             11
Court of Appeal] decided they were going to undo it, put you back in the position that
you were. If it’s undone and then, you know, the chips fall where they do.”
       Beshay argued that vacating the stipulated order would exceed the court’s
authority on remand. He argued, “the Court of Appeal says there was a sales contract
that was agreed to by the parties.” The trial court responded, “It said quite the opposite.
There’s no contract, undo the whole thing, there’s no contract. The Court of Appeal said
that for sure.” The court did not find persuasive Beshay’s claim that the Court of Appeal
had ruled that there was an oral contract.
       Beshay again argued that Hakim was without recourse because she had not taken
action on the oral contract: “[T]hey had an oral agreement. They could have argued this
at trial. They didn’t. The jury was . . . asked to find an agreement that included the
provisions of the written contract. That was where things went afoul, and that was
Ms. Hakim’s tactical decision to insist on this written instrument that was not signed.”
“Are you saying that at trial the only thing argued was there was a written contract? That
was not argued at trial. I presided over the trial,” the court responded to Beshay’s
attorney. “That’s not what happened,” said the court.
       The court asked, “[I]f you’re back in the position that you were, having undone the
contract, . . . this court doesn’t need to say anything more in its judgment, does it?”
Hakim responded that the court needed to vacate the stipulated order as well. Beshay
argued that orders relating to the stipulated order were beyond the scope of the Court of
Appeal decision and that Hakim should raise the issue “some other time.”
       Beshay’s counsel again told the court that the judgment it was considering would
be catastrophic for her clients. The court responded, “I understand that. The other side
of the coin is I don’t think the Court of Appeal was intending that Ms. Hakim lose all of
that interest in the pharmacy basically, that investment just falls off the face of the earth.
I don’t think they intended that either.”
       The court urged the parties to discuss settlement and continued the matter for a
settlement conference, but the parties were unable to settle They returned to court for a
third hearing on September 8, 2014, at which time the court considered Beshay’s

                                              12
objections to a proposed judgment submitted by Hakim. Beshay argued that the court’s
authority to restore parties to their positions before the erroneous judgment extended only
to giving restitution to Beshay as the now-prevailing party. The court asked Beshay, “So
if the breach of contract [judgment] is undone, then how does the court put the parties
back in the position that they were in?” Beshay continued to argue that the Court of
Appeal found that there was an oral contract, and the court continued to reject that claim.
       Beshay further argued that the court could only restore the parties to their
positions immediately before the erroneous judgment, which was entered long after the
stipulated order; the court could not restore the parties “to some point in the past before
there was any contract between the parties.” “The effect of what you are arguing,” the
court told Beshay, “is your client retains the benefit of a contract that the Court of Appeal
has undone. That is the problem. I think it just wouldn’t make sense. I think the Court
of Appeal would leave it to the trial court to make sure that it effectuates its remand to the
court without specifying every little thing that it must do.”
       Beshay sought a limited judgment that omitted any ruling on the stipulated
judgment and advised the court that it had previously ruled that the stipulated order
would not be mentioned in the judgment but could be raised by a later motion. Hakim
denied that the court had made any such ruling and urged the court to resolve the issue of
the stipulated order immediately because restitution could not be determined without
knowing whether Hakim was a shareholder in the corporation. Beshay argued, “If there
is no restitution to the prevailing party in this judgment, there should not be a restitution
to the losing party in this judgment.” The court took the matter under submission.

       C. Interlocutory Judgment
       On September 9, 2014, the court entered an interlocutory judgment. The court
entered judgment in Beshay’s favor on the breach of contract claim and ordered that he
recover attorney fees and costs as provided by law; it vacated the stipulated order. The
judgment required Beshay to return to Hakim her shares of MarioMina, if any, and
ordered Hakim to return payment, if any, for those shares to Beshay, all to be determined


                                              13
at a subsequent restitution hearing. On the conversion cause of action, the court ordered
Hakim to pay MarioMina $17,282.69 in damages plus prejudgment interest up to the time
of the verdict, post-verdict interest at 7 percent until entry of judgment, and attorney fees
and costs as provided by law. The court set the “restitution/restoration hearing” for
October 10, 2014.

       D. New Litigation by Beshay and MarioMina
       On September 15, 2014, after the interlocutory judgment but before the restitution
hearing, Beshay filed a separate action for restitution against Hakim, Case No.
BC557681. Although the new case was also assigned to Judge Palazuelos, it was
reassigned when Beshay filed a petition pursuant to Code of Civil Procedure section
170.6. Beshay then requested that Judge Palazuelos refrain from awarding restitution in
the original case because he had filed the new lawsuit. Judge Palazuelos declined to do
so.
       E. Restitution Hearing
       In briefing submitted in advance of the final hearing, Hakim argued that she was
entitled to restoration of half the shares of MarioMina. She conceded that Beshay was
entitled to restitution in the amount of the original award, $110,356.60, but urged the
court not to award Beshay costs he incurred in fighting the enforcement of the judgment,
attorney fees, or interest on the award. Hakim suggested that judicial economy would be
served by delaying an award of restitution to Beshay until after a trial on the dissolution
cause of action, in which the pharmacy and the corporation would be valued. She asked
the court not to award restitution to Beshay unless she was restored her shares in
MarioMina, because that would constitute taking her shares away from her without any
compensation. Hakim admitted that she “cannot know the value of her shares because
she has been locked out of the corporation for the last 5 years. However, research on the
Internet shows asking prices for pharmacies of roughly the same length of time in
business ranging from $325,000 to $925,000.” She supplied a declaration detailing her
research on pharmacy sale prices and attached pharmacy sale listings in support of her


                                             14
contention that the pharmacy was worth at least twice as much as $110,356.60. Finally,
she asked for an offset on the conversion award for the amount that she had tendered to
MarioMina during the litigation.
       Beshay urged the court not to award shares in MarioMina to Hakim. He continued
to assert that the court lacked the authority to make such an order on remand and further
advised the court that he believed Hakim had created “a ‘judgment-proof’ out-of-state
spendthrift trust” to avoid reimbursing Beshay for the payments he made pursuant to the
original judgment. Beshay also observed that non-party investors now owned 98 percent
of MarioMina, so awarding Hakim 50 percent of the business would “rob non-parties
who are not before the court.” He argued that Hakim owned 500 shares of MarioMina as
of May 5, 2009, and that after that date “MarioMina issued 49,000 new shares to non-
parties, so her old 500 shares do not equate to a 50% interest. [Citation.] The only way
that Hakim can be a 50% owner is to take 25,000 shares from the other owners, or else
void all their purchases.” Beshay argued that the stipulated order prevented Hakim from
interfering with MarioMina’s post-stipulation issuance of new shares or voiding any
subsequent corporate actions, and that the stipulated order could not properly be
disturbed.
       Beshay then argued that because he and MarioMina had filed new lawsuits against
Hakim and her trust after the interlocutory judgment, the trial court should not award
restitution but should leave Hakim to pursue her claim in Beshay and MarioMina’s new
civil action.
       Beshay contested Hakim’s estimation of MarioMina’s value but failed to present
any evidence of its current value. Rather, he argued, age was not the measure of the
value of a pharmacy; its value depended on its volume of business, acquired goodwill,
and capital assets. Beshay declared that MarioMina’s pharmacy had suffered in all these
areas due to Hakim’s actions; that the pharmacy cost only $70,000 in 2009; and that
Hakim’s valuation of the business was inflated and incredible. He reiterated his
entitlement to fees, costs, and interest on the breach of contract claim, and opposed
giving Hakim credit against the conversion damages award.

                                            15
       At the hearing, the parties discussed the impact of Beshay’s new litigation on the
scope of the issues to be decided. Beshay argued that restitution under Code of Civil
Procedure section 908 for the amounts he paid on the breach of contract judgment was a
distinct issue that should be considered in his new civil action and that the court should
limit its present consideration only to whether Hakim was entitled to any MarioMina
shares. Beshay advocated that if Hakim had such an entitlement, “those could be
recompensed to her in the form of money damages.”
       Hakim advocated for one of two options: either her shares should be restored to
her “in exchange for a payment of the [$]110,000[] monies that were recovered” on the
now-reversed judgment; or “if he wants to keep the shares, he wants to keep MarioMina,
he wants to continue to lock out Suzan Hakim, it ought to be a wash.” The court
expressed concern about restoration of the shares: “It seems to me that it wouldn’t be
prudent to put them together . . . in the business. [¶] . . . They don’t want to be together
in the business, so it seems to me a buyout of the shares somehow is the best way to go
because they don’t really want to be together or work together.” The court asked the
parties to focus on an appropriate amount for a buyout. The court observed that it did not
make sense to destroy the ongoing business, but that Hakim deserved to be compensated.
       Beshay advanced two ways of calculating compensation, both of which would
result in Hakim receiving nothing for her shares. In the first option, the court would start
with the purchase price of the pharmacy in 2009 and then deduct corporate expenses
since that time, although Beshay proffered no evidence of the amount of corporate
expenses incurred. Beshay’s second scenario was to consider the present value of the
pharmacy. Although Beshay asserted that Hakim’s estimate that the pharmacy was worth
$400,000 was overestimated, he calculated, using that estimation as a starting point, that
her interest would be worth $4,000 because of the dilution of her shares.
       Hakim objected to both methods of calculation, arguing that because the current
value of her shares was more than the damage amount she had been awarded, a walk-
away would be in order. The court observed that Hakim’s proposal, would “end[] it for
all these parties, and Mr. Beshay could keep the pharmacy and all of its value . . . .”

                                              16
Beshay argued that the $60,000 that the jury awarded as damages represented more than
just the value of the business and was in part a reimbursement for corporate expenses, so
valuing the shares at $60,000 based on the parties’ original buyout figure was incorrect.
       Hakim reminded the court of the request for the offset of the amounts tendered
against the conversion award, and Beshay again opposed any offset. Hakim also argued
that Beshay’s expenses in fighting enforcement of the former judgment should not be
returned to him.

       F. Final Judgment and Post-Judgment Proceedings
       The court entered judgment in favor of Beshay on Hakim’s cause of action for
breach of contract, with Beshay to recover attorney fees and costs as provided by law.
Beshay was ordered to either restore to Hakim her shares amounting to 50 percent
ownership in MarioMina, in which case Hakim was to pay $110,356.60 to Beshay for the
shares; or keep all the shares in MarioMina, in which case Hakim was to retain the
$110,356.60 that Beshay had previously paid as payment for her half-interest in
MarioMina. On the cross-complaint, Hakim was ordered to pay MarioMina $17,282.69
in damages, pre-verdict interest in the amount of $3,270.07, post-verdict interest at 7
percent until the entry of judgment, and attorney fees and costs as provided by law; and
she was credited $20,052.76 against that judgment. The court awarded Beshay and
MarioMina $8,497.46 in costs pursuant to Code of Civil Procedure section 685.090.
       Beshay and MarioMina filed a motion for attorney fees and nonstatutory costs.
Beshay argued that he was entitled to attorney fees because he was the prevailing party
on Hakim’s breach of contract claim, and MarioMina sought attorney fees on the ground
that the conversion claim was related to the contract that Hakim had alleged. Beshay also
sought reimbursement of appraisal expenses he incurred in conjunction with Hakim’s
collection efforts on the now-reversed breach of contract judgment. In conjunction with
this motion, they requested that the trial court take judicial notice of documents from
other litigation between the parties. The trial court denied the motion and the request for
judicial notice.


                                            17
       V.     Case No. BC557681
       Case No. BC557681 is the case that Beshay and MarioMina, along with other
Beshay family members, filed on September 15, 2014, against Hakim and the trustee of
her trust. They asserted claims for restitution pursuant to Code of Civil Procedure section
908; fraudulent transfer; conversion; unjust enrichment; a common count of money had
and received; judicial estoppel; promissory estoppel; equitable estoppel; declaratory
relief; and a temporary restraining order and a preliminary injunction.
       Hakim filed a special motion pursuant to Code of Civil Procedure section 425.16
to strike six of the causes of action in the complaint as a strategic lawsuit against public
participation (SLAPP). The trial court, Judge Dalila Lyons, granted the motion as to
three of the causes of action but denied it as to the causes of action for conversion, unjust
enrichment, and money had and received.

                                       DISCUSSION
       We begin our discussion by noting that both in the trial court and on appeal
Beshay and MarioMina have unduly complicated this matter by making arguments based
upon factual assertions unsupported by the record and legal assertions unsupported by the
law. We address only those arguments based on the factual and procedural history of the
case and supported by applicable legal authority.

       I.     Case No. B260468
       This appeal concerns the judgment after our remand. The proceedings in the trial
court demonstrate that the court sought to render an equitable decision that was consistent
with this court’s instructions while taking into account intervening events and the reality
that the parties were unwilling to resume business together. Having determined that
Hakim was entitled to her 50 percent ownership interest in MarioMina, the court asked
the parties to identify a resolution that would end the litigation and the parties’
relationship, compensating Hakim for her ownership interest in MarioMina in a way that
did not destroy the business. Ultimately, the court offered Beshay a choice: he could
either return Hakim’s stock to her and receive a refund of the amount that she had been

                                              18
awarded in the original litigation; or he could buy out Hakim’s interest by allowing her to
keep the $110,356.60 award that he had already paid.2 Beshay and MarioMina appeal
from the judgment and the court’s denial of their request for attorney fees and
nonstatutory costs. They challenge nearly every aspect of the court’s decision on
jurisdictional and substantial evidence grounds, as an abuse of discretion, and as
inequitable. We conclude that they are judicially estopped from raising many of these
arguments and consider the remaining cognizable claims.

              A. Judicial Estoppel and Issues Cognizable on Appeal
       This dispute began simply: Hakim said there was a contract for the sale of her
half-interest in MarioMina, and Beshay said there was not. Beshay’s theory of the case at
trial was that no agreement was ever reached and that Hakim remained a 50 percent
shareholder in MarioMina. Consistent with this theory, prior to opening argument,
Beshay’s counsel advised the trial court, “As we sit here today, she’s still a shareholder.”
At the January 2011 trial, Beshay testified that Hakim was a 50 percent shareholder as of
May 2009 and remained a 50 percent shareholder “until now.” Counsel asked, “[T]o this
day Suzan Hakim is a 50 percent shareholder; is that correct?” “Yes,” Beshay testified.
       Beshay’s counsel argued to the trial court, “[T]he evidence is she’s still a
shareholder, and there’s no evidence that the value of her interest at the present time is
any different than it’s always been.” He represented, “She didn’t turn over her interest
[in the corporation]. She’s still a shareholder.” Beshay’s attorney further argued to the
trial court that Hakim had actually improved her position with respect to her investment
by not participating in the business of MarioMina since approximately May 2009: “The
state of the evidence is she was having to put money in the corporation to keep it afloat,
so actually she came out ahead because at the present time, she’s a 50 percent shareholder



2      We are aware that this is the amount of the original breach of contract judgment,
not the amount that Beshay claims to have ultimately expended to satisfy the judgment or
the amount that he sought in restitution.


                                             19
without providing any additional investment money into the corporation, and it’s all been
funded by my client. The value of her stock is actually increased.”
       In closing argument, Beshay’s counsel argued that the parties had tried and failed
to reach a buyout agreement, and so “to this day, there’s no agreement. The parties
anticipated signing a formalized agreement that would be prepared by the lawyer. It
wasn’t finalized. It wasn’t prepared. It wasn’t signed. There’s no agreement.” What
should happen now, Beshay argued, was “that this case should end where many of these
cases end[,] with the court deciding how to split up what’s left of the company, so that
she will take what she has, the defendant will take what he has.”
       The jury found that Beshay had breached the contract. At the instruction of the
court the parties met and conferred about the verdict’s impact on Hakim’s remaining
dissolution cause of action, and they reached a stipulation reflecting their common
understanding that the issue of ownership of the corporation should be resolved in the
context of the jury’s determination that Beshay had breached the contract for the sale of
Hakim’s shares. The parties identified May 5, 2009—the date of the contract found by
the jury—as the date that Hakim ceased to be a shareholder, officer, or director of
MarioMina. In reliance on the jury’s verdict, with this stipulation Hakim changed her
position and surrendered her cause of action for dissolution of MarioMina.
       On appeal, Beshay sought reversal of the breach of contract judgment on the
ground that in May 2009 he and Hakim had not entered into a contract, and so Hakim
remained a 50 percent shareholder in MarioMina. In his opening brief, he argued,
“[T]here was no buy-out agreement. Beshay cannot be liable for breaching such an
agreement, because there was no agreement to breach.” He also represented, “There is
no substantial evidence to support a finding that the parties had an agreement, at any
time, regarding the sale of Hakim’s interest to Beshay, other than the oral agreement of
May 5, 2009 that upon mutual agreement to a formal written buy-out agreement Beshay
would pay Hakim $60,000 for her interest.” At oral argument, Beshay’s counsel
expressly stated that Hakim remained a 50 percent shareholder in MarioMina. Beshay



                                            20
never disclosed the stipulated order to this court or revealed that the parties had changed
their positions based on the verdict.
       There are two possible interpretations of Beshay’s conduct: either he deliberately
misled this court or he intended that the stipulated order would be of no effect if Beshay
prevailed on appeal. If the first is true, then Beshay obtained a reversal by deception,
concealing the fact that the parties had changed their positions based on the verdict and
affirmatively misrepresenting the consequences that would flow from a reversal of the
judgment by asserting that Hakim would remain a 50 percent shareholder in MarioMina.
If the latter explanation is accurate, then Beshay litigated the appeal on the express theory
that Hakim remained a 50 percent owner in MarioMina with the understanding that a
reversal of the breach of contract judgment would invalidate the stipulated order as well.3
       In either event, having obtained relief in the Court of Appeal based on the position
that there was no contract between Hakim and Beshay and that Hakim remained a 50
percent shareholder in MarioMina, Beshay and MarioMina are judicially estopped from
arguing the contrary. Judicial estoppel precludes a party from gaining an advantage by
successfully taking one position in a judicial proceeding and then taking a contrary
position in a subsequent proceeding when the first position was not the result of
ignorance, fraud or mistake. (See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987
[doctrine of judicial estoppel applies when “‘(1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3)



3       Beshay and MarioMina’s initial proposed judgment after remand was consistent
with the latter explanation, as it provided that the stipulated judgment would be vacated.
Soon after appellants’ counsel Michael Brewer filed and served that proposed judgment,
Beshay and MarioMina terminated his services. Beverly Bickel, who previously had
been listed on filed documents in the case as Brewer’s associate, assumed the
representation of Beshay and MarioMina, and filed an ex parte application repudiating
the proposed judgment prepared by Brewer. She told the court that her clients had been
“shocked” to discover that Brewer had included a provision to vacate the stipulated order,
and argued that the inclusion of that provision rendered the proposed judgment “seriously
at variance” with the Court of Appeal’s decision.


                                             21
the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the
first position was not taken as a result of ignorance, fraud or mistake’”].)
       Accordingly, Beshay and MarioMina are judicially estopped from arguing that
there was a contract, that Hakim is not a 50 percent owner of MarioMina, or that Hakim
is not entitled to payment for her half-interest in MarioMina if that interest is not returned
to her. We therefore reject Beshay’s and MarioMina’s arguments that the court lacked
jurisdiction to make any award to Hakim; that the court “unwound” or rescinded the
contract; that Hakim is not entitled to compensation for 50 percent of MarioMina; that
Hakim could not be granted restitution or restoration of her shares, or their monetary
equivalent, because she lost on her claims and was not entitled to the property at issue in
the litigation; that the award was an abuse of discretion because the court had no power to
restore her shares; that the trial court had no power to restore Hakim’s shares or their
monetary equivalent because she did not own them anymore and/or because she had
waived her right to rescission and other remedies; that the court had no discretion to
award Hakim MarioMina shares or their monetary equivalent in the exercise of its
restorative authority because she entered into the stipulated order prior to entry of the
erroneous judgment; that Hakim should not or could not be restored her shares in
MarioMina because of parties’ and non-parties’ reliance on the stipulated order; that
Hakim did not own MarioMina shares at the time of the erroneous judgment; that Hakim
had ratified the contract with Beshay; that the contract could not be rescinded or
unwound because of the stipulated order; that the contract could not be rescinded or
unwound after Hakim sued upon it; and that there was insufficient evidence to support a
finding that restoration of Hakim’s shares required giving her a half-interest in
MarioMina.

              B. Challenges to the First Option: Restitution to Beshay, Shares to Hakim
       Beshay’s first option was to return Hakim’s 50 percent ownership interest in
MarioMina to her; Hakim would in turn return the amount that she had been awarded in


                                              22
the original breach of contract litigation. This constituted a straightforward restoration of
the parties to their position before the now-reversed judgment. Hakim remained a half-
owner of the corporation, and Beshay would be required to restore that 50 percent
ownership interest to her. At the same time, the reversal of the breach of contract
judgment meant that Hakim was not entitled to retain the amount previously awarded by
the court and paid by Beshay, and she therefore would be required to return to Beshay the
$110,356.60 awarded to her in the original judgment.

                      1. The Court Did Award Restitution to Beshay
       Beshay repeatedly claims that the trial court did not address or award restitution to
him as a result of the now-reversed judgment. On the first page of Beshay and
MarioMina’s brief, they assert that Beshay was owed statutory restitution pursuant to
Code of Civil Procedure section 908 but that the “trial court refused to even mention
restitution for Beshay in the new judgment.” In their statement of facts, they state that
the trial court “ruled that its new judgment would not address restitution to Beshay.” In
their reply brief, they advance a convoluted argument—based on the false assertion that
Beshay did not seek restitution in the trial court—that the court did not rule on restitution
to Beshay because the “motion” that was addressed at the restitution hearing was
Hakim’s motion.
       The claim that the court did not rule on the appropriate restitution for Beshay is
based on statements taken out of context and is inconsistent with the record, which
clearly reflects that the court declined to include a restitution award in its interlocutory
judgment with the express intent of addressing restitution in a subsequent hearing. The
trial court told Beshay’s counsel, “I’m not saying that your client is not entitled to
[restitution of the amounts collected in satisfaction of the now-reversed judgment]. I’m
just not prepared to make that decision now. Based on the information that I have, I’m
not prepared to put it into the judgment. It’s the subject of [a] later summary proceeding,
and we’ll deal with it then. It will be fleshed out in more detail.” In the same colloquy,




                                              23
the trial court assured Beshay that “[r]estitution will go into the judgment” and could be
added into the judgment at a later time.
       Consistent with the court’s statements, the interlocutory judgment entered
September 9, 2014, specified that Beshay was to return Hakim’s shares and she was to
return payment for them, “to be determined pursuant to [a] restitution hearing to be set by
the court.” The court issued a minute order the same day setting the restitution hearing
for October 10, 2014. After that hearing, the court entered its final judgment, based upon
the Court of Appeal’s decision and what it described as the “restoration/restitution
hearing in equity,” that offered Beshay two options: he could elect restitution or he could
choose a buyout to avoid the unwelcome choice of resuming business with Hakim or
dissolving the corporation.
       The court’s first option restored the parties to their prior positions pursuant to its
inherent authority and Code of Civil Procedure section 908, and it reflected the court’s
equitable determination of what was due Beshay and Hakim if the parties were returned
to their status prior to the erroneous judgment. The judgment demonstrates that the court
fully considered and ruled on Beshay’s arguments concerning the restitution owed him.

                     2. Authority of the Court
       The court’s ruling on restitution was well within the authority of the trial court.
The court’s judgment resolved the remaining issues in the action in accordance with our
prior opinion and within the scope of the remittitur. (Hampton v. Superior Court (1952)
38 Cal.2d 652, 655 [“When there has been a decision upon appeal, the trial court is
reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the
terms of the remittitur. The trial court is empowered to act only in accordance with the
direction of the reviewing court; action which does not conform to those directions is
void”].) Code of Civil Procedure section 908 provides that when a judgment is reversed,
“the reviewing court may direct that the parties be returned so far as possible to the
positions they occupied before the enforcement of or execution on the judgment or order.
In doing so, the reviewing court may order restitution on reasonable terms and conditions


                                              24
of all property and rights lost by the erroneous judgment or order, so far as such
restitution is consistent with rights of third parties and may direct the entry of a money
judgment sufficient to compensate for property or rights not restored. The reviewing
court may take evidence and make findings concerning such matters or may, by order,
refer such matters to the trial court for determination.” “Although this statutory provision
is limited to ‘the reviewing court,’ a trial court whose order or judgment has been
reversed on appeal has inherent authority to afford similar relief.” (Gunderson v. Wall
(2011) 196 Cal.App.4th 1060, 1065 (Gunderson); see also Schubert v. Bates (1947) 30
Cal.2d 785, 789 [“the power of a court whose order or judgment has been reversed to
order restoration after reversal is inherent in that court”].)
       In a conclusory argument, Beshay argues that “[t]he trial court did not award to
Beshay the $161,853.27 he paid Hakim in satisfaction of the now-reversed judgment.
Accordingly, the trial court was without power to award Hakim anything as restitution or
restoration.” Beshay does not explain why or how the fact that the court awarded less
restitution than he sought deprived it of authority to restore Hakim to her 50 percent
ownership of MarioMina, nor does he provide any authority to support his claim. “Every
argument presented by an appellant must be supported by both coherent argument and
pertinent legal authority. [Citation.] If either is not provided, the appellate court may
treat the issue as waived. [Citation.] Accordingly, we deem this issue waived.”
(Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 743.)

                      3. Effect of the Filing of a Separate Restitution Action
       Beshay initially sought restitution from the trial court on remand. He included in
his proposed judgment a blank space for the entry of the amount of restitution that he
would recover from Hakim, and he argued both that the trial court had “the inherent
power to order restitution” after the reversal of a judgment and that it was “proper to
include restitution with other remedies in a new judgment after reversal.” He advised the
court that restitution was part of his damages and asked that the judgment include a
statement that Hakim should return all amounts she collected in satisfaction of judgment,


                                               25
representing to the court that “the sufficiency of a judgment depends on whether it
encompasses all issues to be adjudicated.”4
       After the trial court told Beshay, “I don’t think the Court of Appeal was intending
that Ms. Hakim lose all of that interest in the pharmacy basically, that investment just
falls off the face of the earth,” and shortly after the court entered its interlocutory
judgment specifying that Beshay was to return Hakim’s shares and she was to return
payment for them, to be determined pursuant to a restitution hearing set for October
2014, Beshay filed his second action against Hakim seeking restitution and other relief.
On appeal he claims that trial court lost the authority to award restitution to him or to
Hakim at the restitution hearing once he filed his second action.
       Beshay is correct that in general restitution after the reversal of a judgment may be
sought either in the main action or by the filing of a new action for restitution.
(Gunderson, supra, 196 Cal.App.4th at p. 1065 [“Following reversal, a party may seek
restitution from the trial court by a motion ‘in the original action itself [citation] or . . . in
a separate action instituted for that purpose’ [Citation]”].) None of the authority on
which Beshay relies, however, provides support for the argument that once a litigant has
sought restitution in the original action, he may later file a new restitution action to be
heard by a different judge and thereby divest the original court of the authority not only
to resolve his restitution issue already under consideration but also to rule on restitution
claims made by other litigants. Beshay has not established any error.

                      4. Rescission
       Beshay argues that rescission is not available under Civil Code sections 1691,
1692, and 1693 when a party fails to repay money paid as damages or to make any effort
to rescind the agreement, and that the trial court therefore abused its discretion in


4       The parties occasionally took inconsistent positions on remand about the scope of
restitution and when and how to resolve restitutionary issues, but these inconsistencies
are of no significance because Beshay sought restitution from the trial court and the trial
court used its inherent and statutory authority to resolve the restitution issue.


                                                26
awarding Hakim MarioMina shares or their monetary equivalent “because Hakim already
accepted payment of her breach damages and she refuses to return any of it to Beshay.”
Beshay had no right to the amounts his counsel demanded while the matter was pending
before the trial court on remand.5 That aside, the fundamental problem with this
argument is that this case is not an action for relief based upon rescission, nor did Hakim
ever seek to rescind the contract she claimed to have had with Beshay and which Beshay
successfully argued did not exist. Civil Code sections 1691, 1692, and 1693 have no
application here.

              C. Challenge to the Second Option: Sufficiency of the Evidence to
                 Support Valuation

       The second option offered by the court to Beshay in the judgment was a walk-
away in which he would not return Hakim’s 50 percent ownership stake in MarioMina
and she would retain the $110,356.60 award as payment for her shares. Beshay
challenges the sufficiency of the evidence to support the valuation of Hakim’s interest in
the corporation at $110,356.60.
       We first note that Beshay has failed to satisfy his obligation to present the
evidence in favor of the judgment because he failed to set forth Hakim’s evidence
concerning the value of her interest in MarioMina. A party who challenges the


5       To support his claim that Hakim refused to pay back any of the $161,853.27 she
was paid in satisfaction of the original judgment, Beshay cites to: a statement by
Hakim’s counsel to the trial court that among the equitable issues regarding restitution for
the court to resolve was Beshay’s demand for “nearly $187,000” after the judgment was
reversed, and Beshay’s counsel’s assertion that the amount they demanded was more than
$187,000; another statement by Beshay’s counsel that Hakim had not paid them $187,000
plus the levy costs and fees that they were seeking; documents relating to collection
efforts and the amount paid by Beshay to satisfy the judgment; the acknowledgment of
satisfaction of the original breach of contract judgment; and Beshay’s assertion in the
trial court prior to the interlocutory judgment that Hakim had not repaid him after the
appeal. This purported refusal on Hakim’s part was simply her failure to pay Beshay
what he demanded while the court was considering how to fashion the final judgment and
before the court had made any order as to the amount she should repay him.


                                             27
sufficiency of the evidence to support a particular finding must summarize the evidence
on that point, favorable and unfavorable, and show how and why it is insufficient. (Diaz-
Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1485.) “Where a party presents
only facts and inferences favorable to his or her position, the ‘contention that the findings
are not supported by substantial evidence may be deemed waived.’ [Citation.]”
(Schmidlin v. Palo Alto (2007) 157 Cal.App.4th 728, 738.)
       Although this deficiency would permit us to reject Beshay’s sufficiency of the
evidence argument, we will nonetheless address its merits. “‘Under the substantial
evidence standard of review, “we must consider all of the evidence in the light most
favorable to the prevailing party, giving it the benefit of every reasonable inference, and
resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to
weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our
authority begins and ends with a determination as to whether, on the entire record, there
is any substantial evidence, contradicted or uncontradicted, in support of the judgment.”’
[Citation.] ‘All presumptions favor the trial court’s ruling, which is entitled to great
deference . . . .’ [Citation.]” (Estate of Kampen (2011) 201 Cal.App.4th 971, 992.)
       Beshay’s first argument concerning the sufficiency of the evidence concerns
business expenses. On the theory that Beshay and Hakim bought the pharmacy for
$77,000 in 2009, and that the $60,000 offering price for Hakim’s shares in May 2009
represented her $38,500 initial investment plus a reimbursement of business expenses, he
asserts that any restoration of her ownership should not include that business expenses
component. Business expenses, he argues, would be benefit-of-the-bargain damages that
are not available in rescission cases pursuant to Civil Code section 1692. Beshay
concludes that the court erred in awarding Hakim any more than the amount she initially
paid for the pharmacy purchase. Civil Code section 1692, however, is inapplicable
because this case does not involve or concern the rescission of a contract. Moreover, the
trial court was determining a present monetary value for MarioMina to provide an option
to Beshay to compensate Hakim for her 50 percent interest in the corporation as an
alternative to conveying her ownership interest back to her. Beshay’s argument about the

                                              28
elements that may have composed Beshay’s $60,000 offer to purchase Hakim’s shares in
2009 (an offer that did not lead to a contract) does not establish any error in this court’s
valuation of a present buyout value of her shares.
       Beshay’s next argument is premised on the assumption that the court’s valuation
of MarioMina was simply a re-imposition of the reversed breach of contract judgment.
He observes that the original judgment included costs and attorney fees, and argues that
those cannot be “restored by the court under another name.” Beshay, however, has not
established that the court awarded Hakim any impermissible costs and attorney fees or
that the court erred in valuing her interest in the corporation at a minimum of
$110,356.60.
       Next, Beshay argues that an assessment of the value of Hakim’s half-interest in the
corporation should have “incorporate[d] the facts” that (1) Hakim burdened the
corporation with debt and litigation, lowering its value, and (2) Hakim is not entitled to
the increased value of MarioMina since 2009 because she did not contribute capital or
labor to the corporation after that date. To support the first contention, Beshay cites only
to his declaration that Hakim’s valuation of the company was “not credible” and that
MarioMina had suffered “significant losses” due to Hakim’s actions, which he
characterizes as thefts and unsuccessful litigation. He cites to no evidence in the record
supporting his second contention or permitting quantification of the amount to which he
claims Hakim was not entitled.
       Beshay has not established any error. Even if we accept for the purpose of
argument that these factors should have been taken into account, he has not identified any
evidence in the record from which a valuation for the corporation and these amounts
could be drawn such that it could be determined whether the trial court incorporated or
failed to incorporate these factors. The only evidence to which we are directed is
Beshay’s declaration in which he attacked Hakim’s evidence in general terms such as
“inflated,” and “not credible,” and claimed that the pharmacy should be valued not by its




                                              29
age but by its volume of business, acquired goodwill, and capital assets.6 Beshay,
however, did not offer any evidence that would permit a valuation of the pharmacy’s
present value based on its volume of business, acquired goodwill, and capital assets or
that would demonstrate that valuing the pharmacy on this basis would yield a lesser
amount than the amount the court calculated. Nor has Beshay set forth any evidence
presented to the trial court delineating particular costs or losses attributable to Hakim or
increased value in the corporation that should not be shared with her. Finally, Beshay has
not established that the trial court did not consider his valuation arguments, to the extent
the court found them valid, in determining the value of the corporation. Hakim presented
evidence that similar pharmacies were valued at amounts well over $220,713.20,
suggesting that the court may have taken these factors into account when it fixed the
value of her half-interest in the corporation at $110,356.60. Beshay has not demonstrated
with this argument any diminution of MarioMina’s value attributable to Hakim, any
increase in value of the company to which she was not entitled that was improperly
included in the valuation of her ownership interest, or insufficient evidence to support the
court’s valuation.
       In her respondent’s brief, Hakim argued that she presented evidence that the value
of the pharmacy was more than twice the $110.356.60 amount selected by the court, and
that Beshay did not object to her evidence or provide any evidence to counter hers about
the pharmacy’s value. In reply, Beshay does not contest Hakim’s assertion that he did



6       The relevant portion of Beshay’s declaration reads as follows: “Hakim claims that
the pharmacy’s value can be estimated by age. That is not true. The basis for a
pharmacy’s value (like any business) is not its age but its volume of business, acquired
goodwill, and capital assets. In the case of MarioMina’s pharmacy, these have all
suffered from significant losses that MarioMina suffered from its start-up, due in major
part to Hakim’s thefts and unsuccessful litigation which drained the energy and resources
of the business’s proprietors, and diverted the focus from business to the exhausting job
of defending against untrue allegations. Moreover, the pharmacy originally cost only
$70,000. Hakim knows how much the pharmacy cost to purchase, and her inflated
valuation of it at almost six times its value in 2009 is not credible.”


                                             30
not object to Hakim’s valuation evidence. He argues only that he countered her evidence
with his declaration, but as discussed above this declaration is insufficient to establish
any error.7 Beshay also asserts that his “statement that the pharmacy was worth about
$70,000 at [the] time of purchase is mirrored” in our earlier opinion, in which we set
forth the purchase price of the pharmacy in the factual and procedural summary. Neither
Beshay’s nor our recitation of the purchase price of the pharmacy in 2009 suggests or
establishes that there was insufficient evidence to support the court’s valuation of
Hakim’s present interest in MarioMina for purposes of the buyout option.
       Finally, Beshay argues that his assertion of the pharmacy’s value is “more
credible” than Hakim’s evidence because he runs the corporation as an officer and
director while Hakim left the business in 2009. We neither reweigh the evidence nor
make credibility determinations on appeal. “It is not our function as a reviewing court to
reweigh the evidence, resolve conflicting evidence and inferences, or to judge the
credibility of the witnesses.” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757,
806.) “When two or more inferences can reasonably be deduced from the facts, we do
not substitute our deductions for those of the finder of fact. [Citation.] We must affirm if
substantial evidence supports the trier of fact’s determination, even if other substantial
evidence would have supported a different result. [Citation.].” (Canister v. Emergency
Ambulance Service (2008) 160 Cal.App.4th 388, 394.)

              D. Credit Against the Restitution Award
       In the prior appeal, we affirmed MarioMina’s conversion judgment against Hakim
without directions. (Hakim v. Beshay, supra, B240527, p. 9.) On remand, as part of the
final judgment the trial court ordered that the amount Hakim owed MarioMina for the
conversion of MarioMina’s checks be offset by the amount that she had already paid to
MarioMina for the converted checks and interest on those checks. It is evident that the

7       Beshay provides one additional citation to the record to support his assertion that
he submitted evidence to counter Hakim’s evidence, but this citation is to argument at the
trial court, not evidence in the record.


                                             31
trial court incorporated this offset against the conversion judgment to prevent MarioMina
from obtaining a double recovery. All parties have acknowledged that Hakim paid
MarioMina $20,052.76 for the checks that she had retained and interest on the amount
withheld; it would be inequitable for MarioMina to retain that payment and also recover
that amount in damages for the conversion of the checks.8 A “[p]laintiff is only entitled
to a single recovery of full compensatory damages for a single injury.” (Milicevich v.
Sacramento Medical Center (1984) 155 Cal.App.3d 997, 1003.)
       In altering the conversion judgment after it was affirmed, however, the trial court
exceeded its jurisdiction. “An unqualified affirmance ordinarily sustains the judgment
and ends the litigation. The respondent can enforce the judgment, the trial court cannot
modify it, and further proceedings are improper.” (Los Angeles Unified School Dist. v.
Wilshire Center Marketplace (2001) 89 Cal.App.4th 1413, 1424; see also 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 853.)
       While the trial court could not offset the judgment by crediting Hakim for her
prior payment of $20,052.76 to MarioMina, upon proof that she made this payment
Hakim is entitled to an acknowledgement of partial satisfaction of judgment from
MarioMina, and if it refuses to acknowledge the partial satisfaction of the judgment she is
entitled to an order compelling that acknowledgment on proof of payment. (Code Civ.
Proc., §724.110; Wade v. Schrader (2008) 168 Cal.App.4th 1039, 1048 [court may
exercise its equitable discretion to apply a settlement credit in partial satisfaction of
judgment even though the credit was not brought to the court’s attention before the entry
of judgment]; Jhaveri v. Teitelbaum (2009) 176 Cal.App.4th 740, 753 [motion to compel



8       All of MarioMina’s arguments that the jury, the trial court, or this court rejected
Hakim’s theory that she was entitled to an offset for the funds she paid MarioMina, or
that it cannot be determined whether the jury’s damages award actually took this payment
into account, are contradicted by the record. It was undisputed in the original trial court
proceedings that Hakim had tendered these funds to MarioMina: Beshay and MarioMina
acknowledged the tender prior to trial on the cross-complaint, during arguments outside
the presence of the jury during trial, and in closing argument.


                                              32
acknowledgment of satisfaction or partial satisfaction of a judgment “is an entirely
acceptable procedure for seeking an offset against a judgment”].) As MarioMina argued
to the trial court during trial, Hakim’s tender of funds during litigation did not eliminate
its damages or establish a defense to the conversion claim, but was “really satisfaction of
a judgment in the event that the jury comes back and awards those damages because the
money would have already been paid. [¶] So if th[e jurors] come back and they say the
amount she tendered is the amount of damage then that’s the amount—the judgment
essentially would have been satisfied . . . .”

              E. Equity
       In an argument that appears to address the judgment as a whole, Beshay and
MarioMina contend that the court abused its discretion in making any equitable award to
Hakim because she had not done equity herself. Although they claim that Beshay was
entitled to retain Hakim’s MarioMina shares and to receive every penny paid on the now-
reversed judgment, all that he paid fighting the execution of that judgment, and interest;
and that MarioMina should retain Hakim’s reimbursement for the checks she withheld
and also receive the damages award that the jury made for those checks, in their view it is
Hakim who has not done equity. This is because Hakim “refuses to satisfy MarioMina’s
judgment against her [on the conversion claim], and has never repaid Beshay any of the
$161,853.27 he paid Hakim in satisfaction of the now-reversed judgment.”
       This argument has no merit. Beshay and MarioMina’s evidence to support their
claim that Hakim has behaved inequitably consists of three citations to the record that
show only that they demanded money from Hakim while the post-remand hearings were
ongoing and that she did not pay them. Moreover, the record shows that Hakim did not
contest that the judgment on remand should incorporate the damages award to
MarioMina on the conversion cause of action: From the first judgment Hakim proposed
on remand she included the jury’s conversion damages award. Hakim did ask for an
offset for the amount that she had already tendered to MarioMina, and there was debate




                                                 33
about the dates to be used for interest calculations, but she did not dispute that she was
responsible for paying MarioMina any outstanding amount due for conversion.
       Beshay and MarioMina have also failed to show that Hakim engaged in
inequitable conduct with respect to the restoration of the damages award due to the
reversal of the breach of contract cause of action. Immediately after regaining
jurisdiction, the trial court began the process of determining what the parties owed each
other in light of our decision and remand. During that time, the question of how much
Hakim should pay Beshay was actively litigated. We have not located any instance in the
record of Hakim denying that she was responsible for repaying Beshay in light of the
reversal, nor have Beshay and MarioMina identified any such statement in the record. To
the contrary, Hakim conceded that Beshay was entitled to restitution in the amount of the
original award, $110,356.60, but she urged the court to limit the amount of restitution to
the original judgment amount because Beshay, not Hakim, was responsible for the
additional expenses that he incurred after the judgment was entered. Beshay and
MarioMina have not provided any authority for their view that equity requires one party
to pay another party whatever amount the second party claims to be entitled to while the
question of what amount should be ordered remains pending before the court.

              F. Denial of Beshay and MarioMina’s Motion for Attorney Fees and Their
                 Request for Judicial Notice

       Beshay and MarioMina filed a motion for attorney fees and nonstatutory costs. In
conjunction with this motion, they filed a request for judicial notice of pleadings in other
litigation involving Hakim and Beshay. The trial court denied Beshay’s attorney fee
request on the ground that this court’s prior opinion had established that Hakim was not
entitled to attorney fees, a determination equally binding on Beshay. The court rejected
MarioMina’s contention that it was entitled to attorney fees because it was based on the
fee provision in the unsigned contract, which, “according to the Court of Appeal, is not
applicable to this dispute.” The trial court denied their request for judicial notice.
Beshay and MarioMina appeal.


                                              34
                      1. Attorney Fees Under Civil Code Section 1717
        Beshay and MarioMina contend that they are entitled to attorney fee awards under
Civil Code section 1717. Hakim did not allege in her operative complaint that the
parties’ oral contract provided for attorney fees, nor did she produce evidence that the
parties agreed to or even considered an attorney fee provision when they reached their
alleged purchase agreement. On its own, however, the jury decided that Hakim’s
damages included attorney fees. It was only after the jury made this finding, unsupported
by evidence at trial, that Hakim took the position that she was entitled to attorney fees.
On appeal, we observed that Hakim “had alleged in her complaint Beshay had breached
their oral contract, and made no mention of attorney fees, let alone any basis for such an
award.” (Hakim v. Beshay, supra, B240527, p. 7, fn. 1.) We held that Hakim “was not
entitled to attorney fees based on a writing to which the parties never agreed.” (Hakim v.
Beshay, supra, B240527, p. 7.) Because Hakim was not entitled to attorney fees on the
contract she litigated even if she had ultimately prevailed, neither Beshay nor MarioMina
is entitled to attorney fees pursuant to Civil Code section 1717. A party is only entitled to
attorney fees under Civil Code section 1717 “‘if the other party would have been entitled
to attorney’s fees had it prevailed.’ [Citations.]” (Hsu v. Abbara (1995) 9 Cal.4th 863,
870.)
                      2. MarioMina’s Contract-Based Fee Request
        MarioMina also contends that it is entitled to an award of attorney fees on its
conversion claim pursuant to Code of Civil Procedure section 1021 and the attorney fee
provision of the contract between Beshay and Hakim. MarioMina contends that it was a
party to the contract and is therefore entitled to avail itself of the contractual attorney fee
provision, but this appears to be a post-litigation theory: the jury determined that Beshay
and Hakim entered into a contract, but never determined that MarioMina was a party to
the contract, nor was it asked to do so. MarioMina asserts in the alternative that it was
entitled to a fee award because it was a third-party beneficiary of the alleged contract, and
it offers, without explanation, a citation to one legal decision that sets forth the test for
determining whether a contract was made for the benefit of a third party. MarioMina,

                                               35
however, offers no argument as to how that test was satisfied here, nor does it identify
any factual basis in the record to support such its conclusion. “We need not address
points in appellate briefs that are unsupported by adequate factual or legal analysis.”
(Placer County Local Agency Formation Com. v. Nevada County Local Agency
Formation Com. (2006) 135 Cal.App.4th 793, 814.)

                      3. Nonstatutory Expenses
       Beshay claims that the trial court erred when it failed to award him appraisal
expenses. His entire argument on this point is that the contract’s fee provision authorized
recovery of expenses by the prevailing party, he incurred expenses, and he was entitled to
recover these expenses. “This is no legal analysis at all. It is simply a conclusion,
unsupported by any explanation . . . . Hence, appellant has forfeited the claim of error.”
(In re S.C. (2006) 138 Cal.App.4th 396, 410.) “[P]arties are required to include argument
and citation to authority in their briefs, and the absence of these necessary elements
allows this court to treat appellant’s . . . issue as waived.” (Interinsurance Exchange v.
Collins (1994) 30 Cal.App.4th 1445, 1448.) Beshay has not demonstrated any error in
the trial court’s denial of his request to recover his appraisal fees.

                      4. Collection Fees
       Beshay and Hakim also claim that as judgment creditors they are entitled to fees
incurred in collecting on the judgment against Hakim pursuant to Code of Civil
Procedure section 685.040. Their entire argument about this claimed entitlement consists
of this assertion, a citation to a single case, and the observation that the trial court denied
their request. An appellant must offer argument as to how the court erred, rather than
citing general principles of law without applying them to the circumstances before the
court. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699.) “A
reviewing court need not consider alleged error when the appellant merely complains of
it without pertinent argument.” (Downey Savings & Loan Assn. v. Ohio Casualty Ins.
Co. (1987) 189 Cal.App.3d 1072, 1090.) Beshay and MarioMina have not established
any error.

                                              36
                     5. Request for Judicial Notice
       Finally, Beshay and MarioMina appeal from the trial court’s denial of their request
for judicial notice of documents from other litigation, arguing under Evidence Code
section 452 they “were entitled to mandatory judicial notice.” They are incorrect.
“Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.),
only relevant material may be noticed. ‘But judicial notice, since it is a substitute for
proof [citation], is always confined to those matters which are relevant to the issue at
hand.’ [Citation.] ‘While Evidence Code, section 451, provides in mandatory terms that
certain matters designated therein must be judicially noticed, the provisions contained
therein are subject to the qualification that the matter to be judicially noticed must be
relevant (Evid. Code, §§ 350, 450)’, as well as ‘qualified by Evidence Code, section
352. . . .’ [Citations.]” (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057,
1063 (Mangini), partially overruled on other grounds in In re Tobacco Cases II (2007) 41
Cal.4th 1257, 1276.) The same principles hold true for judicial notice under Evidence
Code section 452. Like any court, the trial court may “‘decline’ to judicially notice
material that ‘has no bearing on the limited legal question at hand.’ [Citation.]”
(Mangini, at p. 1063.) Beshay and MarioMina were not entitled to mandatory judicial
notice of these documents.

              G. Beshay and MarioMina’s Request for Judicial Notice and Second
                 Motion to Augment the Record

       On February 10, 2016, Beshay and MarioMina filed with this court a request for
judicial notice and a second motion to augment the record on appeal. We deny the
request for judicial notice as to Exhibit 1, a death certificate for Beshay and MarioMina’s
first attorney, on the ground that it is irrelevant. (Mangini, supra, 7 Cal.4th at p. 1063.)
We deny the request for judicial notice of Exhibits 2 through 5 because it is unnecessary
to judicially notice items that are already part of the record on appeal.
       Beshay and MarioMina submitted the documents with the second motion to
augment to support arguments in their reply brief concerning the availability of appeal


                                              37
bonds or undertakings and the legitimacy of Beshay’s actions in defending against
Hakim’s collection efforts on the now-reversed judgment. As our resolution of this
appeal does not require consideration of these issues, we deny the second motion to
augment. (Kalmus v. Kalmus (1950) 97 Cal.App.2d 74, 77 [augmentation decision is
within the discretion of the appellate court].)

       II.    Case No. B265065
       Code of Civil Procedure section 425.16, subdivision (b)(1) provides that 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 or 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.” “[T]he statutory phrase ‘cause of action . . . arising
from’ means simply that the defendant’s act underlying the plaintiff’s cause of action
must itself have been an act in furtherance of the right of petition or free speech.
[Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of
action itself was based on an act in furtherance of the defendant’s right of petition or free
speech. [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
       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 legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by
law; (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; (4) or any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.” (Code
Civ. Proc., § 425.16, subd. (e).)


                                              38
         Code of Civil Procedure “[s]ection 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. [Citation.] ‘A defendant meets this burden by demonstrating
that the act underlying the plaintiff’s cause fits one of the categories spelled out in section
425.16, subdivision (e)’ [citation]. 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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) We review the
court’s ruling de novo. (Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242,
1251.)

         A.     Constitutionally Protected Activity
         Hakim appeals the denial of her special motion to strike with respect to the causes
of action for conversion, unjust enrichment, and money had and received. These causes
of action are all claims that Hakim acted wrongfully by participating in litigation to
determine the amount of money she should repay Beshay after the reversal of the breach
of contract judgment. Beshay and MarioMina alleged that Beshay paid Hakim after
judgment was entered in the breach of contract action “in satisfaction of judgment with
the understanding that the money would be returned if that judgment were reversed.”
They alleged that beginning on January 13, 2014 (the date we filed our opinion in the
prior appeal), Hakim was obligated to immediately return all sums Beshay had paid, and
that she knew “that once the judgment against [Beshay] was reversed by the Court of
Appeals [sic] on January 13, 2014, such payments rightfully belong[ed] to the Plaintiffs
and should have been returned to them.” Hakim, Beshay alleged, “wrongfully interfered”
with his right to possession of the amount of the judgment and she “took wrongful
action” to prevent him from collecting it.




                                              39
       It is clear from a review of the complaint in the context of the procedural history
of this dispute9 that the gravamen of the complaint is Hakim’s pursuit of her legal right to
have the court determine the amount of money owing to Beshay, if any, as a result of this
court’s decision on appeal. Her allegedly wrongful conduct was failing to pay Beshay
the amounts he demanded immediately, before our opinion was final; before her petition
for rehearing had been ruled upon by this court; before the trial court regained
jurisdiction of the action; and while the question of what amount would be ordered by the
trial court to restore the parties to the positions they had occupied prior to the now-
reversed judgment was pending before the trial court and being litigated by the parties.
The action was filed mere days after the court filed its interlocutory judgment and set the
“restitution/restoration hearing” for October 10, 2014, in conjunction with which Beshay
was invited to submit briefing concerning restitution to him.
       “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
liability—and whether that activity constitutes protected speech or petitioning.”
(Navellier, supra, 29 Cal.4th at p. 92.) Engaging in litigation to arrive at a judicial
resolution of the remaining issues in the underlying action, including what sums, if any,
Hakim was required to pay in restitution as a result of the reversal of the judgment,
necessarily involved “statements[s] or writing[s] made before a . . . judicial proceeding.”
(Code Civ. Proc. § 425.16, subd. (e)(1)see Kurz v. Syrus Systems, LLC (2013) 221
Cal.App.4th 748, 759 [the filing of lawsuits is an aspect of the right of petition, and “a




9      Many of the documents in the underlying case were judicially noticed by the trial
court in ruling on the anti-SLAPP motion. As the two appeals are related to each other,
are being considered together, and are fundamentally intertwined, on our own motion we
take judicial notice of the records in Case No. B260468. (Evid. Code, § 452.)


                                              40
claim based on actions taken in connection with litigation fall[s] ‘squarely within the
ambit of the anti-SLAPP statute’s “arising from” prong’”].)10

       B.     Probability of Success
       Once the moving party demonstrates that a cause of action is based on
constitutionally protected activity, the plaintiff must then demonstrate a probability of
prevailing on the claim. (§ 425.16, subd. (b)(1).) Admissible evidence in support of the
plaintiff’s prima facie case must be presented on each element of the challenged causes of
action. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614.)
       Here, Beshay and MarioMina did not demonstrate a probability of prevailing on
their claims because the litigation privilege, codified at Civil Code section 47,
subdivision (b), creates an absolute privilege that “‘applies to any communication (1)
made in judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some
connection or logical relation to the action.’ [Citation.]” (Action Apartment Assn., Inc. v.
City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The privilege, which exists for the
“purpose of curtailing derivative lawsuits” (ibid.), “is not limited to statements made
during a trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “[T]he key in
determining whether the privilege applies is whether the injury allegedly resulted from an
act that was communicative in its essential nature.” (Id. at p. 1058.) The pleadings and
process in a case are generally considered to be privileged communications. (Ibid.) As
the “wrongful action” Hakim is alleged to have committed to prevent the money being
collected by Beshay was the manifestly communicative act of filing briefing and making

10     Whether Code of Civil Procedure section 425.16 would necessarily be implicated
whenever a party filed a new action seeking restitution under Code of Civil Procedure
section 908 and/or the court’s inherent authority to restore their parties to their prior
positions after the reversal of an erroneous judgment is an issue that arose in oral
argument but that need not be resolved here, because the parties litigated the question of
how to restore the parties to their original positions before the trial court on remand.


                                             41
arguments to the court, the litigation privilege applies here and is a complete defense to
Beshay and MarioMina’s causes of action. (Ibid.) Beshay and MarioMina cannot show a
probability of success on the merits on these claims.

                                     DISPOSITION
       In Case No. B260468, the judgment for conversion is modified to strike the credit
for $20,052.76. In all other respects the judgment is affirmed. The order on the motion
for attorney fees and nonstatutory costs is affirmed. Hakim shall recover her costs on
appeal.
       In Case No. B265065, the order denying the special motion to strike is reversed,
and the matter is remanded with directions to enter judgment in favor of Hakim on the
third, fourth, and fifth causes of action. Hakim shall recover her costs and attorney fees
on appeal.




                                                  ZELON, J.




We concur:




       PERLUSS, P. J.




       GARNETT, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                             42
