Filed 10/4/13

                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                         DIVISION ONE

                                   STATE OF CALIFORNIA



CHEONG YU YEE,                                    D060989

        Plaintiff and Appellant,

        v.                                        (Super. Ct. No.
                                                   37-2011-00090446-CU-NP-CTL)
DON CHEUNG et al.,

        Defendants and Respondents.


        APPEAL from an order of the Superior Court of San Diego County, Timothy B.

Taylor, Judge. Affirmed.

        Law Offices of Amelia A. McDermott and Amelia A. McDermott for Plaintiff and

Appellant.

        J. Kenneth Jensen in pro. per.

        Pettit Kohn Ingrassia & Lutz, Douglas A. Pettit and Valerie Garcia Hong for

Defendant and Respondent Sally Tsui Wong-Avery.

        Phillips Haskett & Ingwalson and Frederick C. Phillips for Defendants and

Respondents Yuk Wai Ho, Lin Wah Music Center of San Diego, Zhao Hong Hang, Ng
Man Kiong, Lan H. Hom, Fung Yuet Xiong, Kuen Wan Ghu, Pun Wa, Xiao Xiong Pan,

Run You Chen, and Veronica Kwok.



                                              I.

                                     INTRODUCTION

       This appeal arises out of a malicious prosecution action filed by plaintiff Cheong

Yu Yee against defendants J. Kenneth Jensen, Esq.; Sally Tsui Wong-Avery, Esq.; Don

Cheung; Lin Wah Music Center of San Diego (Lin Wah); Zhao Hong Hang; Wai Mui

Lee; Kai Ai Ng; Tong Yum; Ng Man Kiong; Lan H Hom; Fung Yuet Xiong; Run You

Chen; Kuen Wan Ghu; Xiao Xiong Pan; Pun Wa; Veronica Kwok; and Yuk Wai Ho.1

       The malicious prosecution action arises from the defendants' participation in an

underlying action against Yee for claims of fraud and conversion in the matter of Lin

Wah Music Center et al. v. Cheong Y. Yee et al. (Super. Ct. San Diego County, 2008, No.

37-2008-00080938-CU-FR-CTL) (the Lin Wah action). After a trial in the Lin Wah

action, a jury found in favor of Yee on both of the plaintiffs' claims.

       Almost two years after Yee prevailed in the Lin Wah action, he filed a malicious

prosecution action against Lin Wah, multiple individual members of Lin Wah, and two

attorneys whom Yee alleged had represented the plaintiffs in the Lin Wah action—Jensen

and Wong-Avery. In response to the malicious prosecution action, Lin Wah, the



1     Because the distinction is relevant for purposes of this appeal, we will refer to the
defendants other than attorneys Jensen and Wong-Avery as the non-attorney defendants.

                                              2
individual defendants, and attorney defendant Wong-Avery filed motions to strike under

the anti-SLAPP (Strategic Lawsuit Against Public Participation) law. Attorney defendant

Jensen filed a demurrer to the complaint on the ground that the action was time-barred as

to him, pursuant to the statute of limitations set forth in Code of Civil Procedure2 section

340.6. The trial court addressed both the demurrer and the motions to strike in a single

order, sustaining the demurrer as to attorney defendant Jensen and granting the motion to

strike as to all other defendants.

       Yee appeals from the trial court's order sustaining the demurrer as to attorney

defendant Jensen and granting the remaining defendants' motions to strike under the anti-

SLAPP law. Yee contends that the trial court erred in granting the defendants' anti-

SLAPP motions because he sufficiently established a probability of succeeding on his

malicious prosecution claim against them, despite the fact that the trial court had denied

his motion for a nonsuit in the Lin Wah action. Yee also challenges the trial court's

sustaining of Jensen's demurrer, arguing that the one-year statute of limitations set forth

in section 340.6 is applicable to attorney malpractice actions but does not apply to

malicious prosecution actions brought against an attorney defendant.

       We reject Yee's contentions on appeal and affirm the trial court's rulings.




2      Further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
                                              3
                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       Lin Wah is an organization whose members promote and participate in Chinese

opera. Sometime in 2004, Lin Wah members met with Yee about the possibility of

forming a nonprofit musical organization to stage and perform Chinese opera events. In

2005, Yee and Lin Wah formed the nonprofit organization "Asian Culture & Senior

Center, Inc." (ACSC). A representative of Lin Wah withdrew funds from its bank

account and deposited them into an account created for ACSC. Yee became president of

ACSC, and Cheung, one of the members of Lin Wah, became the treasurer of ACSC.

       In 2006, a dispute arose concerning the management of the ACSC bank account,

to which Cheung had access. At some point, Yee removed Cheung as a signatory of the

ACSC bank account. Members of Lin Wah were unhappy with Yee's decision and

accused Yee of withholding the funds. The members of Lin Wah voted to disassociate

from Yee and ACSC.

       Not long after Lin Wah and Yee parted ways, members of Lin Wah approached

Wong-Avery for assistance in recovering from Yee money that they believed rightfully

belonged to Lin Wah. Wong-Avery learned that Yee had hired an attorney to represent

his interests with respect to the monetary dispute. Wong-Avery referred Lin Wah

members to Attorney Jensen to assist them in the matter. In November 2007, Jensen sent

a letter to Yee on behalf of Lin Wah requesting that he return the disputed funds.



                                             4
          Yee apparently did not agree to turn the funds over to Lin Wah. On April 1, 2008,

Lin Wah and its members, represented by Jensen, filed a complaint against Yee alleging

causes of action for fraud and conversion.3

          A trial was held in April 2009. Wong-Avery associated in as cocounsel with

Jensen on the first day of trial. Over two days, Lin Wah presented its case. At the close

of Lin Wah's case, Yee moved for a nonsuit. The trial court ruled, "Well, okay, at this

point, the court is supposed to give plaintiff the benefit of the doubt on the evidence.

And viewing the evidence in the light most favorable, I think there's enough there to let it

go past this point."4

          On April 29, 2009, the jury returned a verdict in favor of Yee on both causes of

action.

B.        Procedural background

          Yee filed a complaint for malicious prosecution, intentional infliction of emotional

distress, and negligent infliction of emotional distress against all of the defendants on

April 28, 2011.

          Attorney defendant Jensen filed a demurrer to the complaint on July 6, 2011,

arguing that the action against him was time barred under the one-year statute of

limitations set forth in section 340.6, as applied to malicious prosecution actions against

attorneys pursuant to Vafi v. McCloskey (2011) 193 Cal.App.4th 874 (Vafi).

3         Wong-Avery was not listed as counsel on the complaint.

4       The court's minute order for that day reads: "At this point, the Court finds that
there is enough evidence to let the case go forward. The Motion for Nonsuit is denied."
                                                5
       On July 8, 2011, attorney defendant Wong-Avery filed a special motion to strike

the entire complaint as to her, pursuant to section 425.16, the anti-SLAPP law. Wong-

Avery argued that Yee failed to demonstrate a probability of prevailing on the merits of

his claim for three reasons: (1) his malicious action against her was barred by the one-

year statute of limitations under section 340.6; (2) he could not establish that she lacked

probable cause or prosecuted the case with malice at the time she associated in to the Lin

Wah action; and (3) his claims for intentional and negligent infliction of emotional

distress were barred by the litigation privilege under Civil Code section 47, subdivision

(b).

       Later that month, the non-attorney defendants filed their own special motion to

strike the complaint under section 425.16. In their motion, they relied on the second and

third grounds that Wong-Avery presented in her special motion to strike.

       In the trial court's tentative ruling on Jensen's demurrer and the other defendants'

special motions to strike, the court indicated its intention to sustain the demurrer without

leave to amend and to grant the special motions to strike. The court held a hearing on the

motions on September 23, 2011. At the conclusion of the hearing, the court adopted its

tentative ruling as its final ruling.

       Yee filed a timely notice of appeal from the trial court's order.5



5       Jensen has not raised any issue with respect to the fact that Yee's notice of appeal
reflects that he is appealing from the order sustaining a demurrer. An order sustaining a
demurrer without leave to amend is normally not appealable; rather, an appeal is proper
only after entry of a dismissal on such an order. (Sisemore v. Master Financial, Inc.
(2007) 151 Cal.App.4th 1386, 1396.) The record on appeal does not reflect the entry of a
                                              6
                                              III.

                                       DISCUSSION

A.       Defendant Jensen's demurrer to the complaint

         1.    Legal standards

         We review de novo an order sustaining a demurrer to determine whether the

complaint alleges facts sufficient to state a cause of action. (CPF Agency Corp. v. Sevel's

24 Hour Towing Service (2005) 132 Cal.App.4th 1034, 1042.) We exercise our

independent judgment as to whether the complaint states a cause of action. (Palestini v.

General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86.) " 'A judgment of dismissal after

a demurrer has been sustained without leave to amend will be affirmed if proper on any

grounds stated in the demurrer, whether or not the court acted on that ground.'

[Citation.]" (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149,

1153.)




judgment or a dismissal on the demurrer order, despite the fact that Yee contends in his
opening brief on appeal that a "judgment of dismissal was filed with this Court which is
final to Mr. Yee and Attorney Jensen and disposes of all issues between the parties."
        However, "when the trial court has sustained a demurrer to all of the complaint's
causes of action, appellate courts may deem the order to incorporate a judgment of
dismissal, since all that is left to make the order appealable is the formality of the entry of
a dismissal order or judgment. [Citations.]" (Sisemore v. Master Financial, Inc., supra,
151 Cal.App.4th at p. 1396.) Here, the order sustaining the demurrer to the complaint
without leave to amend as to attorney defendant Jensen effectively ended Yee's ability to
proceed further with his case against Jensen, and the only step left to make the order
appealable is the formal entry of a dismissal order or judgment. We therefore deem the
order on Jensen's demurrer to incorporate a judgment of dismissal and will review the
order in this appeal, in the interest of judicial economy and the interest of justice. (See
ibid.)
                                               7
       When a demurrer is sustained without leave to amend, "we decide whether there is

a reasonable possibility that the defect can be cured by amendment: if it can be, the trial

court has abused its discretion and we reverse; if not, there has been no abuse of

discretion and we affirm. [Citations.] The burden of proving such reasonable possibility

is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

       2.     Analysis

       Yee's complaint alleging malicious prosecution against Jensen and the other

defendants was filed on April 28, 2011, which was one year and 364 days after the jury

returned a verdict in his favor in the Lin Wah action.6 A "cause of action for malicious

prosecution first accrues at the conclusion of the litigation in favor of the party allegedly

prosecuted maliciously. [Citation.]" (Babb v. Superior Court (1971) 3 Cal.3d 841, 846.)

       The issue in dispute is whether the one-year statute of limitations set forth in

section 340.6, subdivision (a)7 applies to a malicious prosecution action against an




6       Yee's complaint contained causes of action for intentional infliction of emotional
distress and negligent infliction of emotional distress, in addition to the malicious
prosecution action. However, on appeal, Yee addresses only the malicious prosecution
cause of action. We conclude that Yee has thus forfeited any argument with respect to
the trial court's sustaining the demurrer with respect to Yee's other causes of action.

7       Section 340.6, subdivision (a) provides in relevant part: "An action against an
attorney for a wrongful act or omission, other than for actual fraud, arising in the
performance of professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence should have discovered, the
facts constituting the wrongful act or omission, or four years from the date of the
wrongful act or omission, whichever occurs first."

                                              8
attorney, or instead, whether the general two-year statute of limitations set forth in

section 335.1, which typically applies to claims for malicious prosecution, applies even

where the malicious prosecution defendant is an attorney.8

       One other appellate court has concluded that "the one-year limitations period

under section 340.6 applies to an action for malicious prosecution against an attorney

rather than the two-year limitations period which applies to malicious prosecution actions

generally." (Vafi, supra, 193 Cal.App.4th at p. 880.) Jensen contends that the Vafi

decision is binding on this court. Although the Vafi decision is useful in analyzing the

question presented in this appeal, we disagree with Jensen's contention that we are

constrained to follow Vafi as "binding authority." (See, e.g., Henry v. Associated Indem.

Corp. (1990) 217 Cal.App.3d 1405, 1460 [decisions of one appellate court have no stare

decisis effect, and are not binding upon other appellate courts].) Nevertheless, after

considering the question independently and reviewing the pertinent statutory language,

we agree with the Vafi court and adopt its conclusion that the one-year statute of

limitations set forth in section 340.6, subdivision (a) applies to a claim for malicious

prosecution brought against an attorney that is based on that attorney's participation in the

litigation that forms the basis of the malicious prosecution claim.

       As with all questions of statutory interpretation, we begin with the words of the

statute. " ' "[W]e must look first to the words of the statute 'because they generally


8      Section 335.1, which applies to claims for "injury to . . . an individual caused by
the wrongful act or neglect of another," has been held to govern claims for malicious
prosecution, generally. (Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190,
197 (Stavropoulos).)
                                              9
provide the most reliable indicator of legislative intent.' [Citation.] If the statutory

language is clear and unambiguous, our inquiry ends. 'If there is no ambiguity in the

language, we presume the Legislature meant what it said and the plain meaning of the

statute governs.' [Citations.] In reading statutes, we are mindful that words are to be

given their plain and commonsense meaning. [Citation.]' [Citation.] Thus, we ' "avoid a

construction that would produce absurd consequences, which we presume the Legislature

did not intend." [Citations.]' [Citations.]" (Vafi, supra, 193 Cal.App.4th at p. 880.)

        Other principles of statutory interpretation are also helpful: " '[T]he intention of

the Legislature . . . is to be pursued, if possible; and when a general and [a] particular

provision are inconsistent, the latter is paramount to the former. So a particular intent

will control a general one that is inconsistent with it. ' " (Vafi, supra, 193 Cal.App.4th at

p. 880, quoting § 1859.) "Thus, a specific statute of limitations takes precedence over a

general one, even though the latter ' "would be broad enough to include the subject to

which the more particular provision relates." [Citation.]' [Citations.]" (Vafi, supra, at p.

880.)

        When determining which statute of limitations applies to a particular action, a

court considers what the principal purpose or "gravamen" of the action is, rather than the

form of action or the relief demanded. (Vafi, supra, 193 Cal.App.4th at p. 880.)

        The plain language of section 340.6 applies to all actions, with the exception of

those actions asserting actual fraud, that are brought against an attorney for that attorney's

"wrongful act or omission . . . arising in the performance of professional services."

(§ 340.6.) The phrase "wrongful act or omission" is "used interchangeably as a reference

                                              10
to both tortious and contractual wrongdoing." (Southland Mechanical Constructors

Corp. v. Nixen (1981) 119 Cal.App.3d 417, 431 (Southland) [concluding language of

§ 340.6 applies to breaches of contract in addition to torts].) The words of the statute are

quite broad, but they are not ambiguous: any time a plaintiff brings an action against an

attorney and alleges that attorney engaged in a wrongful act or omission, other than fraud,

in the attorney's performance of his or her legal services, that action must be commenced

within a year after the plaintiff discovers, or should have discovered, the facts that

comprise the wrongful act or omission.

       Yee's complaint alleges that Jensen acted wrongfully in "pursu[ing] a meritless

lawsuit against [Yee] for fraud and conversion" and in "fil[ing] and continu[ing] litigation

of the Underlying Action on behalf of [the non-attorney defendants] despite the fact no

reasonable attorney would have done so." Thus, the gravamen of Yee's complaint against

Jensen is the allegation that Jensen engaged in wrongful acts in his performance of

professional legal services in his representation of the non-attorney defendants. This

claim clearly falls within the plain language of the statute. (See Vafi, supra, 193

Cal.App.4th at p. 880.) Yee's claim against Jensen also falls within the plain language of

the alternative statute of limitations set forth in section 335.1 that has been held generally

applicable to malicious prosecution actions (see Stavropoulos, supra, 141 Cal.App.4th at

p. 197).

       As noted, where more than one statute might apply to a particular claim, " 'a

specific limitations provision prevails over a more general provision.' [Citation.]" (E-

Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316-1317.) Given

                                              11
that section 340.6 is a more specific statute of limitations, applicable only to actions

against attorneys for their wrongful acts or omissions, its provisions prevail over the more

general "catchall" statute of limitations for claims against any defendant based on his or

her alleged "wrongful act or neglect" of another.

       We are not persuaded by Yee's argument that the language of section 340.6

"contemplates situations where the wrongful act is related to the duties of an attorney to

the client." (Italics added.) We are bound by the plain language of the statute, which

clearly applies when "the plaintiff" discovers the wrongful act on the part of the attorney.

There is no requirement in the statute that the plaintiff have been a client of the attorney.

(§ 340.6.) Rather, the Legislature chose to use the term "plaintiff" and not "client," in

framing the entire provision. Although one of the tolling provisions included in the

statute provides for tolling in a situation in which an attorney continues to represent "the

plaintiff," the other tolling provisions do not indicate that they are limited to situations

involving actions by a client against his or her attorney, as opposed to claims by a third

party against an attorney.

       Yee contends that "[a]ll of the published cases on [s]ection 340.6 except the Vafi

case involve clients and former clients, with the exception of situations where the

beneficiary of a will sued the attorney preparing a will." However, this fact does not

assist us in interpreting the statutory language. The lack of cases addressing the question

currently before us does not constitute evidence that section 340.6 applies only to actions

brought by a client against a former attorney. Rather, it is, at most, evidence that no court



                                              12
other than the Vafi court has considered whether section 340.6 is limited to actions

arising out of an attorney-client relationship.

       Yee's contention that the phrase "a wrongful act or omission" in section 340.6

refers only to "malpractice" and is undermined by the fact that the term "malpractice"

does not appear anywhere in the statute. If the Legislature had wanted to limit section

340.6 to malpractice actions between clients and attorneys, it could have done so by

making it clear that the actions to which it applies are limited to those brought by a client

or former client against his or her attorney for malpractice. The Legislature did not do

this, and instead, enacted a broadly worded statute that limits the time within which any

plaintiff may bring an action against an attorney for the attorney's conduct "arising in the

performance of professional services." (Ibid.)

       Unless giving the words of a statute their plain and commonsense meaning would

produce " 'absurd consequences,' " we adhere to the plain meaning. (Vafi, supra, 193

Cal.App.4th at p. 880.) Although in enacting section 340.6, the Legislature may have

intended the statute to apply to malpractice actions against an attorney by a client, the

language of the statutory provision is not limited to that situation, and we cannot say that

interpreting the one-year limitation set forth in section 340.6 to apply to a malicious

prosecution action initiated by a third party against an attorney would produce absurd

consequences. First, we note that "malicious prosecution has traditionally been regarded

as a disfavored cause of action because 'the tort has the potential to impose an undue

"chilling effect" on the ordinary citizen's willingness to report criminal conduct or to

bring a civil dispute to court.' [Citation.] As a result, 'the elements of the tort have

                                              13
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.' [Citation.]" (Stavropoulos, supra, 141 Cal.App.4th at p.

197.) Arguably, this disfavor for malicious prosecution actions could apply even more so

to malicious prosecution claims against an attorney, who, by nature of his or her

profession, is more likely to be involved in litigation than the average plaintiff, and thus,

may be more likely to be subjected to malicious prosecution claims.

       Second, interpreting section 340.6 as imposing a one-year statute of limitations for

malicious prosecution actions against attorneys supports the Legislature's purpose in

enacting the provision. As Yee acknowledges, the "words of a statute must be given such

interpretation as will promote rather than defeat the general purpose and policy of the

law." (Southland, supra, 119 Cal.App.3d at p. 430.) One of the purposes that the

Legislature had in enacting section 340.6, as evidenced by the legislative history of the

provision, was to attempt to reduce the costs of legal malpractice insurance. (See Sen.

Com. on Judiciary, Report, Assem. Bill No. 298, 1977-1978, p. 1.) California courts

have acknowledged that malicious prosecution actions have an impact on attorney

malpractice insurance premiums and raise the costs of practicing law. (See Bidna v.

Rosen (1993) 19 Cal.App.4th 27, 35-36 [disallowing malicious prosecution action in

family law cases, in part because of impact of malicious prosecutions on malpractice

insurance premiums]; see also Lossing v. Superior Court (1989) 207 Cal.App.3d 635,

641, fn. 5 [noting that allowing malicious prosecution actions filed by one attorney



                                             14
against another is the type of litigation that "is a substantial reason for skyrocketing

premiums for legal malpractice insurance"].)

       Although we recognize that the effect of applying the one-year statute of

limitations in section 340.6 to a malicious prosecution action brought against an attorney

is that the limitations period applicable to an attorney defendant in a malicious

prosecution action will be different from the limitations period applicable to other non-

attorney defendants in the same action, we cannot conclude that such a result is absurd.

As we have explained, the Legislature may have valid policy reasons for providing a

more circumscribed limitations period to attorney defendants than to other defendants of

malicious prosecution actions.

       Because it is undisputed that the conduct at issue arose from Jensen's performance

of his professional services to the plaintiffs in the Lin Wah action, and because the plain

meaning of the words of the statute applies to the malicious prosecution claim against

Jensen and such application is not absurd, we conclude that the one-year limitations

period in section 340.6 governs Yee's malicious prosecution claim against Jensen. Since

this action was filed almost two years after Yee prevailed in the Lin Wah action, it is

time-barred as to Attorney Jensen.9



9       At oral argument in this case, citing Silas v. Arden (2012) 213 Cal.App.4th 75,
Yee raised for the first time a contention that this court should not apply the one-year
statute of limitations in section 340.6 on the ground that to apply our interpretation of the
statute "retroactively" to Yee's action would be unfair to Yee because the parties had
relied on a different, settled rule of law. (See Silas, supra, at p. 89 [declining to apply
one-year statute of limitations in section 340.6 because of belief that prevailing view
prior to Vafi opinion was that two-year statute of limitations applied to malicious
                                              15
B.     Defendant Wong-Avery's anti-SLAPP motion10

       Yee's complaint suffers the same defect with respect to attorney defendant Wong-

Avery as it does with respect to attorney defendant Jensen—i.e., it is untimely under

section 340.6, subdivision (a) since it was brought more than a year after Yee discovered

his cause of action for malicious prosecution. As a result, Yee cannot prevail on his

malicious prosecution claim against Wong-Avery. We therefore affirm the trial court's

granting of attorney defendant Wong-Avery's anti-SLAPP motion.




prosecution actions, whether against an attorney or non-attorney].) Because Yee could
have presented this argument in his briefing on appeal but did not do so, we consider the
issue forfeited. In any event, we question the holding in Silas since, as stated in the text
of this opinion, the language of section 340.6 is clear and unambiguous. Contrary to the
Silas court's suggestion that Vafi effected a change in "settled law," no court had
previously held that the two-year statute of limitations in section 335.1 applied to
malicious prosecution actions against attorneys. The Silas court relied on Stavropoulos,
supra, 141 Cal.App.4th 190 in stating that "the prevailing view . . . was [that] the two-
year statute of limitations of section 335.1 applied to malicious prosecution actions."
However, the defendant in Stavropoulos was not an attorney. Stavropoulos thus does not
address which statute of limitations applies to malicious prosecution actions against
attorneys.

10      Although the trial court's order granting Wong-Avery's special motion to strike
and the non-attorney defendants' special motion to strike resulted in the striking of all
three of the causes of action that Yee alleged in his complaint—i.e., malicious
prosecution, intentional infliction of emotional distress, and negligent infliction of
emotional distress—on appeal Yee addresses only the malicious prosecution cause of
action. As a result, we conclude that Yee has forfeited any argument with respect to the
trial court's ruling striking his causes of action for intentional infliction of emotional
distress and negligent infliction of emotional distress, and we affirm the court's order
with respect to those causes of action based on this forfeiture.
                                             16
C.     The non-attorney defendants' anti-SLAPP motion

       1.     Applicable Legal standards

       "Whether section 425.16 applies, and whether the plaintiff has shown a probability

of prevailing, are both questions we review independently on appeal." (Kashian v.

Harriman (2002) 98 Cal.App.4th 892, 906; see also HMS Capital, Inc. v. Lawyers Title

Co. (2004) 118 Cal.App.4th 204, 212 (HMS Capital) [orders granting anti-SLAPP

motions are reviewed de novo].)

       Section 425.16 provides in pertinent part: "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).)

       Resolution of a special motion to strike "requires the court to engage in a two-step

process. First, the court decides whether the defendant has made a threshold showing

that the challenged cause of action is one arising from protected activity. The moving

defendant's burden is to demonstrate that the act or acts of which the plaintiff complains

were taken 'in furtherance of the [defendant]'s right of petition or free speech under the

United States or California Constitution in connection with a public issue,' as defined in

the statute. [Citation.] 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." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

                                              17
       For purposes of an anti-SLAPP motion, "[t]he court considers the pleadings and

evidence submitted by both sides, but does not weigh credibility or compare the weight

of the evidence. Rather, the court's responsibility is to accept as true the evidence

favorable to the plaintiff . . . ." (HMS Capital, supra, 118 Cal.App.4th. at p. 212.) A

plaintiff "need only establish that his or her claim has 'minimal merit' [citation] to avoid

being stricken as a SLAPP. [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006)

39 Cal.4th 260, 291 (Soukup).)

       To establish a claim for malicious prosecution, a plaintiff is required to show that

a prior claim initiated by the defendant was (1) pursued to a legal termination favorable

to the plaintiff, (2) brought without probable cause, and (3) initiated with malice. (Villa

v. Cole (1992) 4 Cal.App.4th 1327, 1335.)

       2.        Analysis

       Yee does not challenge the trial court's conclusion that his malicious prosecution

claim falls within the purview of the anti-SLAPP statute. (See Jarrow Formulas, Inc. v.

LaMarche (2003) 31 Cal.4th 728, 735 (Jarrow) [a malicious prosecution action alleges

that the defendant committed a tort by filing a lawsuit, and therefore, courts routinely

conclude that malicious prosecution causes of action fall within the purview of the anti-

SLAPP statute].) Accordingly, we address whether Yee presented evidence sufficient to

"[establish] that there is a probability that [he] will prevail on the claim." (§ 425.16,

subd. (b)(1).)




                                              18
       Trial in the Lin Wah action resulted in a legal termination favorable to Yee. We

therefore consider whether Yee has shown that the non-attorney defendants filed and

prosecuted the complaint against him without probable cause.

       A party has probable cause to bring the underlying suit if, objectively viewed, its

claims were legally tenable, meaning a reasonable attorney would conclude that the

underlying action was not totally and completely without merit. (Sheldon Appel Co. v.

Albert & Oliker (1989) 47 Cal.3d 863, 885 (Sheldon Appel).) Whether there was

probable cause to initiate or continue to prosecute an action in light of the facts known to

the malicious prosecution defendant is a legal question for the court to decide. (Id. at p.

875.) "In analyzing the issue of probable cause in a malicious prosecution context, the

trial court must consider both the factual circumstances established by the evidence and

the legal theory upon which relief is sought. A litigant will lack probable cause for his

action either if he relies upon facts which he has no reasonable cause to believe to be true,

or if he seeks recovery upon a legal theory which is untenable under the facts known to

him." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165 (Sangster).)

       In determining whether the prior action was legally tenable, i.e., whether the

action was supported by probable cause, the court is to construe the allegations of the

underlying complaint liberally, in a light most favorable to the malicious prosecution

defendant. (Sangster, supra, 68 Cal.App.4th at p. 165.) Further, we keep in mind that

"every case litigated to a conclusion has a losing party, but that does not mean the losing

position was not arguably meritorious when it was pled. [Citation.] And just as an action

that ultimately proves nonmeritorious may have been brought with probable cause,

                                             19
successfully defending a lawsuit does not establish that the suit was brought without

probable cause. [Citations.]" (Jarrow, supra, 31 Cal.4th at p. 743.)

       We conclude that Yee has failed to show a probability of prevailing on the lack of

probable cause element of his malicious prosecution claim.

       Certain non-final rulings on the merits may serve as the basis for concluding that

there was probable cause for prosecuting the underlying case on which a subsequent

malicious prosecution action is based. (Wilson v. Parker, Covert & Chidester (2002) 28

Cal.4th 811, 817–818.) This is based on the notion that "[c]laims that have succeeded at

a hearing on the merits, even if that result is subsequently reversed by the trial or

appellate court, are not so lacking in potential merit that a reasonable attorney or litigant

would necessarily have recognized their frivolousness." (Id. at p. 818.) Thus, for

instance, the denial of a nonsuit motion and a subsequent plaintiff's jury verdict has been

found sufficient to constitute probable cause, even though the trial court or appellate

court later reverses that verdict. (Cowles v. Carter (1981) 115 Cal.App.3d 350, 356; see

also Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1052–1053 [designer's success

before Board of Patent Appeals established probable cause, notwithstanding the fact that

designer's victory was reversed by appellate court].) Similarly, the denial of a defense

summary judgment motion "normally establishes there was probable cause to sue, thus

barring a later malicious prosecution suit." (Roberts v. Sentry Life Insurance (1999) 76

Cal.App.4th 375, 384 (Roberts); see also Zamos v. Stroud (2004) 32 Cal.4th 958, 973, fn.

10 [The denial of summary judgment normally precludes the trial court from finding that

the lawsuit was frivolous for purposes of a malicious prosecution claim].) "We say

                                              20
'normally' rather than 'conclusively' because there may be situations where denial of

summary judgment should not irrefutably establish probable cause. For example, if

denial of summary judgment was induced by materially false facts submitted in

opposition, equating denial with probable cause might be wrong. Summary judgment

might have been granted but for the false evidence." (Roberts, supra, at p. 384.)

       The trial court in the Lin Wah action denied Yee's motion for nonsuit at the close

of the plaintiffs' case, expressly concluding that the plaintiffs had presented sufficient

evidence to allow their claims to go to the jury.11 We conclude that in this case, the trial

court's determination on the motion for nonsuit that there was sufficient evidence to allow

the jury to decide the questions presented by the case means that a reasonable attorney

could have concluded that the Lin Wah action "was not totally and completely without

merit." (Sheldon Appel, supra, 47 Cal.3d at p. 885.) Indeed, there was evidence that

there was a valid question as to who was the rightful owner of the funds that had been

withdrawn from the Lin Wah account and transferred into the account for the newly

formed ACSC. The fact that the jury ultimately sided with Yee does not mean that the

action against him lacked probable cause.

       In an attempt to overcome the fact that the trial court concluded that there was

sufficient evidence to allow the jury to resolve the Lin Wah action, Yee contends that the

fraud exception to the "interim judgment rule" applies, such that the trial court's ruling on



11      Again, the court's minute order for that day reads: "At this point, the Court finds
that there is enough evidence to let the case go forward. The Motion for Nonsuit is
denied."
                                              21
the nonsuit motion in the Lin Wah action was procured as a result of "perjured testimony

and false evidence." However, Yee has failed to establish that the court's ruling on his

nonsuit motion in the underlying action was obtained by fraud, perjury, or any other

unfair conduct. Yee points to testimony by Cheung in the Lin Wah action, both at his

deposition and at trial, to suggest that Cheung presented false testimony on which the

court relied. For example, Yee contends that at various times, Cheung admitted that he

invited members of the media to a press conference and spoke at the press conference,

but at other times stated that he "never spoke with any member of the media" and "never

held a press conference and made these statements to the media."

       A review of Cheung's testimony at trial in the Lin Wah action, which included

questions pertaining to his deposition testimony, demonstrates that Cheung, who utilized

an interpreter during his testimony, was confused with respect to questions about whether

he had spoken with members of the media. Specifically, Cheung readily admitted that he

"sponsored" a press conference sometime in November 2006 concerning the dispute

between Lin Wah and Yee, and that he spoke with the reporters who were present at that

press conference. He was then asked whether he remembered his prior deposition

testimony, in which he had said that he had "never spoken to any member of the media

regarding this matter." Cheung's response to this question is telling, in that he said that

he had invited "the press, the reporters" but that he "was not speaking to anyone

privately." At trial, when pressed again with respect to his deposition response to a

question about whether he had ever " 'given an interview to any member of the media

concerning Mr. Yee,' " which was that he had not "spoken to anyone," Cheung agreed

                                             22
with his deposition testimony, and reaffirmed that he "personally did not speak to any

person of the media because [he] did not know any of them." When asked about what

seemed to be conflicting testimony about holding a press conference, and why he had not

stated during his deposition that he had held the press conference, Cheung said, "Nobody

asked me that question at the deposition."

       It is clear from this portion of the transcript that rather than constituting evidence

of fraudulent testimony, Cheung misunderstood the questions concerning his having

"spoken" to members of the press as referring to instances in which he had spoken

privately with members of the press, separate from the press conference that he readily

admitted he had "sponsored." We therefore reject Yee's contention that "[b]ut for this

sort of testimony, the lower court would have granted Mr. Yee's non-suit motion."

       Because the record demonstrates that the defendants in the malicious prosecution

case had probable cause to bring the underlying action, Yee cannot establish a probability

that he will prevail on his malicious prosecution claim.




                                              23
                                           IV.

                                     DISPOSITION

      We deem the order sustaining Jensen's demurrer to the complaint without leave to

amend to have incorporated a judgment of dismissal as to Jensen, and we affirm that

judgment. We also affirm the trial court's order granting the remaining defendants'

special motions to strike. Costs are awarded to Respondents.




                                                                              AARON, J.

WE CONCUR:



             BENKE, Acting P. J.



                   O'ROURKE, J.




                                           24
