Filed 3/4/13 Glavinovich v. Hewitt Wolensky LLP CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JOHN L. GLAVINOVICH,

     Plaintiff and Appellant,                                          G046723

         v.                                                            (Super. Ct. No. 30-2011-00516101)

HEWITT WOLENSKY LLP,                                                   OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Steven L.
Perk, Judge. Affirmed.
                   Voss, Silverman & Braybrooke, David C. Voss, Jr., and Andrew T.
Schoppe for Plaintiff and Appellant.
                   Heather Arambarri; Hewitt Wolensky, Gary A. Wolensky, Elizabeth V.
McNulty and Cyrus Wilkes for Defendant and Respondent.
                                          *                  *                  *
              This is one of a number of appeals from judgments after orders granting
defense motions pursuant to Code of Civil Procedure section 425.16,1 the anti-SLAPP
statute,2 in a malicious prosecution action by plaintiff John L. Glavinovich. All of the
anti-SLAPP motions relate to the same underlying case, Sweidan v. Orange County
Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-
00122142).
              In this case, Glavinovich appeals the trial court‟s decision to grant the anti-
SLAPP motion filed by defendant Hewitt Wolensky LLP, one of the law firms involved
in the underlying case.3 Based on the minimal, nonspecific evidence produced by
Glavinovich in the trial court, he has not demonstrated that he can establish either a lack
of probable cause or malice, two of the three requirements to maintain a cause of action
for malicious prosecution. We therefore affirm the trial court‟s decision to grant the anti-
SLAPP motion.
                                              I
                                          FACTS
A. The Underlying Case
              Orange County Physicians Investment Network (OCPIN) was a Nevada
limited liability company formed by Glavinovich and approximately 19 others. Its
primary purpose was as a holding company for its members‟ funds to be used for the



1Unless otherwise indicated, subsequent statutory references are to the Code of Civil
Procedure.

2 “SLAPP  is an acronym for „strategic lawsuit against public participation.‟” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
3 Glavinovich also purported to appeal from the order granting the motion to strike
(along with another defendant‟s) in appeal No. G046722, while appealing the judgment
here. We address all of Glavinovich‟s contentions against Hewitt Wolensky in the instant
appeal.


                                              2
acquisition of stock in a company called Integrated Healthcare Holdings, Inc.
(Integrated). This company, an investment entity, purchased four hospitals in the Orange
County area from Tenet Healthcare Corporation.
               In April 2008, Glavinovich was elected as a manager of OCPIN, along with
Anil V. Shah, who had held that position since 2005.4 According to Glavinovich‟s
complaint, acquiring Integrated stock was a “complicated and difficult affair,” resulting
in separate litigation that is apparently still arguing.
               In early 2009, certain members of OCPIN began an effort to remove Shah
and Glavinovich as managers. Glavinovich later alleged such actions were illegitimate
and interrupted OCPIN‟s business operations. The dissident members (the OCPIN
plaintiffs) then instituted the underlying case (the OCPIN litigation).5
               Over the next two years, the OCPIN plaintiffs were represented by three
different sets of lawyers, of which Hewitt Wolensky was the third. At the time Hewitt
Wolensky entered the case, the OCPIN plaintiffs had pled their fourth amended
complaint, and a demurrer hearing was pending. According to Hewitt Wolensky, the
complaint they inherited had four key points. In sum, the first point was that OCPIN had
pledged $30 million to help Integrated fund its acquisition of certain hospitals. Shah had
pledged to loan $20 million to OCPIN and directed the issuance of a private placement
memorandum to attract new investors. The memorandum claimed that Shah had loaned
$20 million to OCPIN, but this was not true, and a number of the OCPIN plaintiffs had


4 There is some dispute, or at least confusion, about when Glavinovich became a
manager. In one document he filed in the underlying case, he stated that he had been
elected as a comanager in 2005. In his demurrers in the underlying case, and in the
malicious prosecution action, he stated he became a comanager in 2008.

5At different points, the members were represented by Kenneth Catanzarite of The
Catanzarite Law Corporation, Vincent W. Davis of The Law Office of Vincent W. Davis
and Associates, and Hewitt Wolensky LLP. All were later named in the malicious
prosecution action.


                                                3
relied on his representations in deciding to invest. The second key point was that Shah
was eventually sued by Integrated for acts of self-dealing, and OCPIN‟s management
elected to indemnify Shah, against the wishes of its members and in contravention of the
relevant operating agreement.
              Third, to fund Shah‟s indemnity, OCPIN‟s management made two requests
for additional capital under the threat of diluting each noncontributing member‟s
ownership interest. These “cash calls,” too, were alleged to be in violation of the relevant
operating agreement. Finally, OCPIN‟s management was alleged to have diluted the
interest of each noncontributing member, but kept the dilution secret to induce the
members to approve the settlement agreements ending the Integrated litigation against
Shah. They were asked to approve the agreements without reviewing them, and had they
done so, they would have learned that the agreements provided large personal benefits to
Shah.
              Specifically with regard to Glavinovich, he was alleged to have breached
his fiduciary duty by arranging the cash calls in order to fund Shah‟s indemnification.
Further, along with Shah, he was allegedly responsible for the dilution of the
noncontributing members ownership, and for inducing the members to sign the settlement
agreements.
              After the demurrers to the complaint Hewitt Wolensky had inherited from
prior counsel were heard and sustained in January 2011, leave to amend was granted.
The court concluded, among other things, that the complaint failed to rebut the
presumption of the business judgment rule and failed to state a cause of action against
Glavinovich. Hewitt Wolensky interpreted leave to amend to mean they had leave to
amend the complaint beyond the issues the court specified, but on hearing demurrers to
the fifth amended complaint, the court clarified that only correcting specific deficiencies
was permitted.



                                             4
              The sixth amended complaint was therefore drafted. It alleged breach of
fiduciary duty and misrepresentation, and sought declaratory relief and an accounting in
addition to damages. Glavinovich‟s demurrer to the sixth amended complaint was
sustained, with the court noting that the OCPIN plaintiffs had not “com[e] even close” to
stating a cause of action against him. At least in part, this ruling appeared to be based on
a lack of specificity as to time with regard to Glavinovich, as the court noted he had come
into the picture much later than the other parties before the court. As to Shah, the court
overruled his general demurrer based on the business judgment rule, overruled his
demurrer to the misrepresentation cause of action, and granted leave to amend on the
claim for accounting. According to Hewitt Wolensky, the litigation continued with Shah
as the defendant.


B. The Malicious Prosecution Case
              After he was dismissed from the OCPIN litigation, Glavinovich filed the
instant action for malicious prosecution against the OCPIN plaintiffs and their attorneys
in the underlying case. The first amended complaint, filed in December 2011, alleged
malicious prosecution and intentional infliction of emotional distress.
              In response, the defendants, including Hewitt Wolensky, filed anti-SLAPP
motions. Hewitt Wolensky argued that probable cause to continue the OCPIN litigation
existed, specifically pointing to the allegations relating to the cash calls and the
prohibition of any requirements of contributing new capital in the relevant operating
agreement. Hewitt Wolensky also pointed to Glavinovich‟s actions regarding the dilution
of member interests, arguing that while the trial court believed the allegations were not
sufficient to rebut the Nevada business judgment rule, they established probable cause. It
also argued that Glavinovich could not establish the requisite malice to maintain a
malicious prosecution claim.



                                               5
               While it is probable that Glavinovich filed an opposition to Hewitt
Wolensky‟s motion, it is not in the record in this case. Glavinovich did include a request
for judicial notice, which included four documents — the court transcript and notice of
ruling relating to the sixth amended complaint, the notice of ruling on the fourth amended
complaint, and excerpts from the depositions of Ajay Meka and Jacob Sweidan, two of
the OCPIN plaintiffs taken in 2010. No other evidence was submitted.
               In February 2012, the court granted the motion as to Hewitt Wolensky.
The court concluded that Glavinovich had not established lack of probable cause or
malice with respect to the malicious prosecution claim, and also found that the intentional
infliction of distress cause of action was barred on multiple grounds.6 Glavinovich now
appeals.
                                               II
                                        DISCUSSION
A. Statutory Framework
               The anti-SLAPP statute states: “A cause of action against a person arising
from any act of that person in furtherance of the person‟s right of petition or free speech
under the United States Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) The purpose of the anti-SLAPP statute is to dismiss
meritless lawsuits designed to chill the defendant‟s free speech rights at the earliest stage
of the case. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.) The
statute is to be “construed broadly.” (§ 425.16, subd. (a).)




6Glavinovich does not address his intentional infliction of emotional distress claim on
appeal, and we therefore deem it abandoned.


                                                6
              Section 425.16, subdivision (e), specifies the type of acts included within
the statute‟s ambit. An “„act in furtherance of a person‟s right of petition or free
speech . . . 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, or (4) 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.” (§ 425.16, subd. (e).)
              Courts engage in a two-step process to resolve anti-SLAPP motions.
“„First, the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. The moving
defendant‟s burden is to demonstrate that the act or acts of which the plaintiff complains
were taken “in furtherance of the [defendant]‟s right of petition or free speech under the
United States or California Constitution in connection with a public issue,” as defined in
the statute. (§ 425.16, subd. (b)(1).)‟” (Jarrow Formulas, Inc. v. LaMarche, supra, 31
Cal.4th at p. 733.)
              “„If the court finds such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the claim.‟
[Citation.]” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.) To
establish the requisite probability of prevailing, the plaintiff must state and substantiate a
legally sufficient claim (Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1122-1123), thereby demonstrating his case has at least minimal merit.
(Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105



                                               7
(Cole).) “Put another way, the plaintiff „must demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.‟ [Citations.]”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Glavinovich “must
produce evidence that would be admissible at trial. [Citation.]” (HMS Capital, Inc. v.
Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
               On appeal, we “review an order granting an anti-SLAPP motion de novo,
applying the same two-step procedure as the trial court. [Citation.]” (Cole, supra, 206
Cal.App.4th at p. 1105.) In conducting our review, “[w]e consider „the pleadings, and
supporting and opposing affidavits . . . upon which the liability or defense is based.‟
[Citation.] However, we neither „weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant‟s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.‟ [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
               The first step of the anti-SLAPP analysis is readily satisfied here, as it is in
nearly all claims for malicious prosecution. (See Jarrow Formulas, Inc. v. LaMarche,
supra, 31 Cal.4th at pp. 734-735.) “It is well established that filing a lawsuit is an
exercise of a party‟s constitutional right of petition. [Citations.] „“„[T]he constitutional
right to petition . . . includes the basic act of filing litigation or otherwise seeking
administrative action.‟”‟ [Citations.]” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083,
1087.) “Under these accepted principles, a cause of action arising from a defendant‟s
alleged improper filing of a lawsuit may appropriately be the subject of a section 425.16
motion to strike. [Citation.] The essence of the [plaintiffs‟] malicious prosecution claim
is that the plaintiff in the underlying action . . . filed litigation that was improper because
it was allegedly filed with a malicious motive and without probable cause. This claim



                                                8
„aris[es] from‟ the defendant‟s constitutionally protected petitioning activity, and
therefore is subject to the anti-SLAPP statute. [Citation.]” (Id. at p. 1087-1088; see also
Cole, supra, 206 Cal.App.4th at p. 1105.) We therefore turn to the question of whether
Glavinovich has established the requisite probability of prevailing on his claim.


B. Malicious Prosecution
              “To prevail on a malicious prosecution claim, the plaintiff must show that
the prior action (1) was commenced by or at the direction of the defendant and was
pursued to a legal termination favorable to the plaintiff; (2) was brought without probable
cause; and (3) was initiated with malice. [Citation.]” (Soukup, supra, 39 Cal.4th at p.
292.) Continuing an already filed lawsuit without probable cause may also be the basis
for a malicious prosecution claim. (Zamos v. Stroud (2004) 32 Cal.4th 958, 969 (Zamos);
see also Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.)
              We examine the evidence produced in the trial court to determine if
Glavinovich‟s claim passes muster under the anti-SLAPP statute. As noted above, the
only evidence Glavinovich submitted was the court‟s rulings and excerpts from the
depositions of two of the OCPIN plaintiffs,7 taken long before Hewitt Wolensky involved
itself in this case. In Meka‟s deposition, he was asked questions such as “what fiduciary
duties did those two doctors [Shah and Glavinovich] have?” The question was objected
to on the grounds of attorney-client privilege, and Meka answered that he did not have
information other than what his attorney had told him. When asked for facts underlying
the fiduciary duty claims, he repeatedly answered that he only knew what his counsel,
Kenneth Catanzarite, had told him. Questions regarding other claims were answered
similarly, and Sweiden answered in a consistent manner.


7Glavinovich repeatedly refers to Meka and Sweiden as “lead plaintiffs” without any
evidence that they had any special status in the litigation.


                                              9
              In support of its motion, Hewitt Wolensky submitted the declaration of
Cyrus Wilkes, an attorney at the firm. In the declaration, Wilkes stated that before the
firm was retained, he was informed about the cash calls used to raise funds to indemnify
Shah for expenses incurred during the Integrated litigation. Based on his review of the
relevant OCPIN operating agreement, which was attached as an exhibit, he believed it
contained an express provision prohibiting mandatory cash calls. He was also informed
that Shah and Glavinovich had diluted the interests of the noncontributing members, a
fact about which the members were not aware until the settlement agreements in the
Integrated litigation had been signed. He believed these facts provided sufficient
probable cause to proceed against Glavinovich. He was also aware of the confusion
surrounding the time frame in which Glavinovich was a manager of OCPIN created by
different statements by Glavinovich in different documents.
              1. Probable Cause
              “Probable cause exists when a lawsuit is based on facts reasonably believed
to be true, and all asserted theories are legally tenable under the known facts.” (Cole,
supra, 206 Cal.App.4th at p. 1106.) Whether the facts known to an attorney constituted
probable cause to prosecute an action is a question of law. (Zamos, supra, 32 Cal.4th at
p. 971.) More specifically, “„[t]he presence or absence of probable cause is viewed under
an objective standard applied to the facts upon which the defendant acted in prosecuting
the prior case. [Citation.] The test of determining probable cause is whether any
reasonable attorney would have thought the claim to be tenable. [Citation.] . . . [¶]
Hence, “probable cause to bring an action does not depend on it being meritorious, as
such, but upon it being arguably tenable, i.e., not so completely lacking in merit that no
reasonable attorney would have thought the claim tenable. [Citation.]”‟ [Citation.]
Probable cause exists if the claim is legally sufficient and can be substantiated by




                                             10
competent evidence. [Citation.]” (Antounian v. Louis Vuitton Malletier (2010) 189
Cal.App.4th 438, 448-449.)
              Glavinovich bears the burden of establishing a prima facie case. (Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) His argument on this point in
his opening brief is sparse. It primarily consists of the following. “As illustrated in the
above-cited excerpts from the depositions of lead OCPIN Defendant Meka, neither Meka
nor any other OCPIN Defendant had probable cause to bring any of their claims against
Glavinovich. This includes the „cash call‟-related claims cited by the Court in its order
granting the motions to strike filed by Hewitt & Wolensky . . . and extends to the other
claims—for breach of fiduciary duty, fraud, misrepresentation, constructive fraud,
professional negligence, etc. — which were alleged in the OCPIN Defendants‟ Second
through Sixth Amended Complaints. [¶] In view of the fact that the OCPIN Defendants
and the Attorney Defendants had merely to reveal some portion of the facts which were
allegedly known only to Catanzarite in order to survive the demurrers which eventually
extinguished their claims against Glavinovich, it is even more reasonable to infer that
those facts never existed in the first instance, and that the claims alleged against
Glavinovich were assuredly „based upon suspicion, imagination, speculation, surmise,
conjecture or guesswork.‟”
              Thus, Glavinovich relies on the deposition testimony of only two of more
than a dozen plaintiffs, taken more than a year before Hewitt Wolensky entered the case,
to support his contention that no probable cause existed. This is not sufficient evidence
to support a prima facie case. The 2010 depositions of two plaintiffs merely demonstrate
what those two plaintiffs knew, and were willing to disclose under relevant law, at the
time their depositions were taken. There is no legal basis for attributing their knowledge,
or lack thereof, to all other OCPIN plaintiffs. It also does not demonstrate the lack of
probable cause by others — namely, Hewitt Wolensky — when they entered the case



                                              11
more than a year later. Further, it does not speak to the relevant standard applied to
attorneys in malicious prosecution actions, specifically, “„whether any reasonable
attorney would have thought the claim to be tenable.‟” (Antounian v. Louis Vuitton
Malletier, supra, 189 Cal.App.4th at pp. 448-449.) Indeed, Glavinovich submitted no
evidence on this point. As a matter of law, Glavinovich has not established a lack of
probable cause.
              2. Malice
              Even if we had found that Glavinovich established probable cause, he must
also demonstrate a prima facie case supporting the last element of a malicious
prosecution action, malice. “The „malice‟ element . . . relates to the subjective intent or
purpose with which the defendant acted in initiating the prior action. [Citation.] The
motive of the defendant must have been something other than that of bringing a perceived
guilty person to justice or the satisfaction in a civil action of some personal or financial
purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper
ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494
(Downey Venture).)
              Glavinovich argues that malice can be inferred from nothing more than the
lack of probable cause, but the lack of probable cause alone is insufficient. (Drummond
v. Desmarais (2009) 176 Cal.App.4th 439, 452.) Were it otherwise, the malice
requirement would simply disappear. “A lack of probable cause is a factor that may be
considered in determining if the claim was prosecuted with malice [citation], but the lack
of probable cause must be supplemented by other, additional evidence.” (HMS Capital,
Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 218.) “Merely because the prior
action lacked legal tenability, as measured objectively (i.e., by the standard of whether
any reasonable attorney would have thought the claim tenable [citation]), without more,
would not logically or reasonably permit the inference that such lack of probable cause



                                              12
was accompanied by the actor‟s subjective malicious state of mind. In other words, the
presence of malice must be established by other, additional evidence.” (Downey Venture,
supra, 66 Cal.App.4th at p. 498, fn. omitted.)
              “[T]hat evidence must include proof of either actual hostility or ill will on
the part of the defendant or a subjective intent to deliberately misuse the legal system for
personal gain or satisfaction at the expense of the wrongfully sued defendant.
[Citation.]” (Downey Venture, supra, at pp. 498-499; see also Daniels v. Robbins, supra,
182 Cal.App.4th at p. 225.) While malice may be inferred from circumstantial evidence
such as the lack of probable cause, such evidence must be “supplemented with proof that
the prior case was instituted largely for an improper purpose.” (Cole, supra, 206
Cal.App.4th at p. 1114.)
              Moreover, we keep in mind that malicious prosecution is a “disfavored
action.” (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 566.) “[T]he elements
of [malicious prosecution] have historically been carefully circumscribed so that litigants
with potentially valid claims will not be deterred from bringing their claims to court by
the prospect of a subsequent malicious prosecution claim.” (Sheldon Appel Co. v. Albert
& Oliker (1989) 47 Cal.3d 863, 872.) We are therefore entirely disinclined to read out
the malice requirement from a malicious prosecution cause of action, as Glavinovich
would have us do.
              The evidence is completely insufficient to establish a prima facie case of
malice against Hewitt Wolensky.8 Unlike Zamos, supra, 32 Cal.4th 958, a case upon
which he relies, the evidence presented to the trial court does not demonstrate Hewitt

8 For the first time in his reply brief, Glavinovich argues that Hewitt Wolensky aided and
abetted the malicious prosecution of the other defendants, and was therefore equally
liable. “Aiding and abetting a tort requires knowingly assisting the wrongful act.
[Citation.]” (Cole, supra, 206 Cal.App.4th at p. 1106.) Glavinovich does not offer any
evidence of aiding and abetting other than Hewitt Wolensky‟s participation in the
underlying case.


                                             13
Wolensky had knowledge of any lack of probable cause. The only evidence offered by
Glavinovich in addition to pleadings and court rulings, the 2010 depositions of two
plaintiffs, are simply insufficient on this point. In contrast, Hewitt Wolensky submitted
evidence in the form of Wilkes‟s declaration, stating why the firm believed the case had
sufficient cause to proceed. Glavinovich has failed to meet his burden to demonstrate
malice, and therefore the probability of success on his malicious prosecution claim.
Thus, Hewitt Wolensky‟s anti-SLAPP motion was properly granted by the trial court.
                                            III
                                     DISPOSITION
              The judgment is affirmed. Pursuant to section 425.16, subdivision (c)(1),
Hewitt Wolensky may file the appropriate motion for attorney fees with the trial court.
Hewitt Wolensky is also entitled to costs on appeal.




                                                  MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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