Filed 8/26/14 Croteau v. Bernier CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



JESSIE CROTEAU et al.,                                              D061560

      Plaintiffs, Cross-defendants and
Respondents,
                                                                    (Super. Ct. No. 37-2011-00091919-
         v.                                                         CU-NP-CTL)

REJEANNE BERNIER,

      Defendant, Cross-complainant and
Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Luis R.

Vargas, Judge. Affirmed.



         Patrick M. Howe for Plaintiffs, Cross-defendants and Respondents.

         Rejeanne Bernier in pro. per., for Defendant, Cross-complainant and Appellant.
       Defendant, cross-complainant and appellant Rejeanne Bernier (Bernier), appearing

in propria persona, appeals the order granting the anti-SLAPP motion of plaintiffs, cross-

defendants and respondents Jessie Croteau (Jessie), Bernier's son, and his professional

services company, ICS Professional Services, Inc. (ICS) (together, respondents).

Respondents moved under Code of Civil Procedure section 425.161 to strike the

malicious prosecution and elder abuse causes of action Bernier asserted against them in

the cross-complaint she filed in response to respondents' own complaint for damages

against Bernier, Hans Croteau (Hans), the younger son of Bernier and the brother of

Jessie, and others. Affirmed.

                   FACTUAL AND PROCEDURAL BACKGROUND

       There is a long history of litigation between the parties in this case. In late 2006,

Bernier approached her son Jessie about a remodel to her home. Jessie's company, ICS,

then held a general building contractor license and a flooring and floor covering

contractor license. After Jessie and ICS began the remodeling work a dispute arose

between Bernier and Jessie that culminated in Bernier filing a lawsuit against Jessie and

ICS in October 2007, in San Diego County Superior Court, case No. 37-2007-00076023-

CU-BC-CTL (the construction lawsuit). The construction lawsuit alleged, among others,

causes of action for breach of oral agreement and for recovery of compensation paid to an



1      All statutory references are to the Code of Civil Procedure unless otherwise noted.
Section 425.16 is commonly referred to as the anti-SLAPP statute. (Siam v. Kizilbash
(2005) 130 Cal.App.4th 1563, 1568.) SLAPP is an acronym for " 'strategic lawsuit
against public participation.' " (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th
728, 732, fn. 1.)

                                              2
unlicensed contractor. As to the latter cause of action, Bernier alleged that the agreement

pertaining to the remodeling project was between her and Jessie individually, and not

between her and ICS, and as such, Jessie performed the work without a valid contractor's

license.

       ICS alone filed a cross-complaint against Bernier in the construction litigation. It

asserted among others a cause of action for breach of a written contract. After a bench

trial, as discussed post the court found neither Bernier nor respondents were entitled to

any relief and entered judgment accordingly.

       As relevant here, in May 2011 respondents filed the instant action against Bernier

and Hans (who is not a party in this appeal) asserting three causes of action for malicious

prosecution and one cause of action for defamation. Respondents in their complaint

contended Bernier and/or Hans had asserted at least three separate, unsuccessful lawsuits

against them in connection with the remodeling project, including (1) the construction

lawsuit; (2) a separate action by Hans against respondents in San Diego County Superior

Court, case No. 37-2008-00087054-PT-CTL, in which he alleged causes of action for

intentional misrepresentation and breach of oral contract arising from an alleged

agreement between him and respondents in which respondents would pay Hans $20 per

hour to perform labor in connection with the remodeling project, which amount would

then be offset from any amount Bernier owed for the remodeling work; and (3) an action

in the United States District Court for the Southern District of California, No. 10-CV-

1698, in which Bernier and Hans in their 98-page complaint alleged respondents and their

attorneys involved in the construction lawsuit, among many other defendants (including


                                             3
one of Bernier's own attorneys involved in the construction lawsuit, the San Diego

District Attorney and individuals in that office and former California Attorney General

Jerry Brown), allegedly violated their constitutional rights and committed many other

wrongs based in part on what respondents contended were many of the same allegations

Bernier and/or Hans had previously made in their unsuccessful construction and

employment lawsuits.

       Bernier, for herself only, in response filed a cross-complaint against respondents

and others in the instant action. As relevant here, she alleged causes of action for

malicious prosecution and elder abuse. In her cross-complaint, Bernier alleged that in

connection with the construction lawsuit, her son Jessie "falsified several documents

concerning [her] remodeling project, including but not limited to time sheets,

employment applications, invoices, project accounting, and communications"; that Jessie

also "forged contracts between [her] and ICS," which Bernier contended was a felony;

and that as a result of such falsified and forged documents, ICS and Jessie "wrongfully

brought a lawsuit [i.e., the cross-complaint in the construction lawsuit] against [her] for

breach of a written contract . . . ."

       Bernier further alleged in her elder abuse cause of action that at the time of the

alleged misconduct by respondents she was at least 65 years of age and thus subject to

protection under California's Elder Abuse and Dependent Adult Civil Protection Act

(Welf. & Inst. Code, § 15600 et seq (Act)); and that respondents violated that Act

"through the use and presentation of falsified and forged documents at trial [in the




                                              4
construction lawsuit] to take financial advantage, appropriate, and convert [her] money

for [respondents'] own personal use and enjoyment."

       Respondents in response filed an anti-SLAPP motion to strike Bernier's malicious

prosecution and elder abuse causes of action.2 The trial court granted that motion, ruling

as follows:

       "Cross-defendants [i.e., Croteau and ICS] bear[] the initial burden of establishing a

prima facie showing the causes of action arise from their free speech or petition activity.

[Citation.] 'In the anti-SLAPP context, the critical consideration is whether the cause of

action is based on the defendant's protected free speech or petitioning activity.'

[Citations.] In other words, the court considers whether the challenged action was filed

after the protected activity occurred.

       "Here, the Cross-Complaint arises entirely out of petitioning activity and

statements made in the course of judicial proceedings. [Citation.] Moreover, malicious

prosecution causes of action fall within the purview of the [a]nti-SLAPP statute.

[Citation.] In addition, Bernier's cause of action for elder abuse is subject to the [a]nti-

SLAPP statute, as it is predicated on the alleged presentation of falsified and forged

documents at the trial in the underlying case [i.e., the construction lawsuit]. Causes of

action arising out of litigation activity are subject to a Special Motion to Strike.


2      Respondents also demurred to the cross-complaint. The trial court found the
demurrer moot as a result of its granting of respondents' anti-SLAPP motion. In addition,
Bernier and Hans separately demurred and each filed their own anti-SLAPP motion to
respondents' complaint for damages. The trial court granted in part and denied in part the
anti-SLAPP motions of Bernier and Hans. That order, however, is not the subject of this
appeal.

                                               5
[Citation.] Thus, Cross-Defendants have standing to bring the anti-SLAPP motion and

the first prong of the analysis has been met.

       "The burden then shifts to Cross-Complainant to establish a 'probability that the

[cross-complainant] will prevail on the claim.' [Citation.] '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." ' [Citation.] Plaintiff in opposition must rely upon

competent admissible evidence within the personal knowledge of the declarant.

Declarations 'on information and belief' are of no moment. [Citation.]

       "Here, Cross-Complainant has failed to show a probability of prevailing on the

merits of her Cross-Complaint against Jessie Croteau. Cross-Complainant fails to present

any evidence the Cross-Complaint in the underlying action was brought by Jessie

Croteau. Since Cross-Complainant has not shown a probability of prevailing on the

merits, her Cross-Complaint against Cross-Defendant Jessie Croteau is stricken.

       "Cross-Complainant has also failed to show a probability of prevailing on the

merits of her Cross-Complaint against ICS . . . . Cross-Complainant fails to submit any

evidence of damage. Since Cross-Complainant has not shown a probability of prevailing

on the merits, her Cross-Complaint against Cross-Defendant ICS . . . is stricken.

       "Cross-Complainant's Request for Judicial Notice is granted." (Emphasis in

original omitted.)




                                                6
                                         DISCUSSION

       A. Guiding Principles

       A court employs a two-step analysis in determining whether one or more causes of

action should be stricken under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) In the

first step, the defendant—or in this case, the cross-defendant—bears the initial burden of

making a prima facie showing that the cause of action "aris[es] from any act of that

person in furtherance of the person's right of petition or free speech . . . ." (Ibid.; see

Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473-474.)

       Subdivision (e) of section 425.16 provides that an "act in furtherance of a person's

right of petition or free speech" under subdivision (b)(1) of section 425.16 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."

       If the defendant meets this threshold burden, in the second step the burden then

shifts to the plaintiff, or in this case to the cross-complainant, to "establish[] that there is a

probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); see

Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 548.)


                                                7
       "Under section 425.16, subdivision (b)(2), the trial court in making these

determinations considers 'the pleadings, and supporting and opposing affidavits stating

the facts upon which the liability or defense is based.' [Citation.] 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 . . . .' "

(Kleveland v. Siegel & Wolensky, LLP, supra, 215 Cal.App.4th 534, 548.) "These

determinations are legal questions, and we review the record de novo." (Damon v. Ocean

Hills Journalism Club, supra, 85 Cal.App.4th at p. 474.)

       B. "Arising From" Requirement

       In the instant case, the parties agree that a malicious prosecution claim generally is

subject to the anti-SLAPP statute. (See Jarrow Formulas, Inc. v. LaMarche, supra, 31

Cal.4th at pp. 736-741; Kleveland v. Siegel & Wolensky, LLP, supra, 215 Cal.App.4th at

pp. 548-549.) However, Bernier contends this rule does not apply here because she

submitted new evidence to this court that she further contends conclusively establishes

that respondents engaged in criminal activity in connection with the construction lawsuit

as a result of their "collateral and extrinsic fraud." (See Flatley v. Mauro (2006) 39

Cal.4th 299, 320 [noting that when a "defendant brings a motion to strike under section

425.16 based on a claim that the plaintiff's action arises from activity by the defendant in

furtherance of the defendant's exercise of protected speech or petition rights, but either

the defendant concedes, or the evidence conclusively establishes, that the assertedly




                                                8
protected speech or petition activity was illegal as a matter of law, the defendant is

precluded from using the anti-SLAPP statute to strike the plaintiff's action."])

       Specifically, Bernier submitted to this court evidence she claims was unavailable

to her at the time she opposed respondents' anti-SLAPP motion. According to Bernier,

this new evidence shows respondents in connection with the construction lawsuit

concealed (1) the existence of a policy of insurance issued to ICS on which she could

have based a claim for damages; and (2) various pictures she alleges show potential

construction defects related to the remodel project, which she now claims establish,

through her "plumbing expert," that respondents in 2007 improperly installed the

property's sewer system.

       We conclude this narrow exception to the anti-SLAPP statute does not apply here.

For one thing, we cannot consider any of the "new" evidence proffered by Bernier

because this court previously denied her opposed motion to admit additional evidence for

new findings, her request for judicial notice that included at least one document that was

not even in existence when the trial court granted respondents' anti-SLAPP motion, and

finally her motion to reconsider this court's denial of her opposed motion to admit

additional evidence.

       Moreover, even if we considered this "new" evidence we would still conclude this

limited exception does not apply in the instant case because we further conclude such

evidence does not establish as a matter of law that respondents engaged in illegal conduct

in the construction lawsuit when they allegedly concealed the existence of a policy of

insurance allegedly issued to ICS and/or photographs of Bernier's home taken during the


                                              9
remodel. (See Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367 [noting

that when a factual dispute exists regarding the alleged illegality of defendants' conduct,

this limited exception does not apply and further noting that because the defendants

conceded the illegal nature of their election finance activities, there is no constitutional

protection under section 425.16 for such activities], disapproved on another ground as

stated in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)

       Finally, we conclude Bernier did not proffer any other evidence to establish

respondents as a matter of law engaged in illegal and unlawful conduct, including when

they allegedly falsified several documents concerning Bernier's remodeling project, or

when, as she now contends for the first time on appeal, they allegedly engaged in the

crime of extortion in 2007 in connection with a certain indemnity agreement.

       Indeed, the record shows that the court in its statement of decision in the

construction lawsuit found that Jessie and Bernier both lacked credibility and were not to

be believed; that although there was some "arrangement that caused remolding work to

be done at Ms. Bernier's house," "neither side established what that arrangement was";

and that the "stories told by Ms. Bernier and Mr. [Jessie] Croteau were both false"

regarding the true arrangement of the remodeling work, with both witnesses "trying to

tell a more convincing set of lies than the other." Clearly, in light of these findings—

which are final and binding on this court, Bernier can hardly establish, much less as a

matter of law, that respondents engaged in illegal conduct when they allegedly falsified

and/or forged several documents concerning the remodeling project, including the

contracts themselves.


                                              10
       As such, we independently conclude Bernier's first cause of action for malicious

prosecution falls within the purview of section 425.16. (See Jarrow Formulas, Inc. v.

Lamarche, supra, 31 Cal.4th at pp. 734-735 [noting "[b]y definition, a malicious

prosecution suit alleges that the defendant committed a tort by filing a lawsuit" and thus

"every court of appeal that has addressed the question has concluded that malicious

prosecution causes of action fall within the purview of the anti-SLAPP statute."])

       We also independently conclude respondents satisfied their burden to show

Bernier's second cause of action for elder abuse is also subject to the anti-SLAPP statute.

Indeed, the allegations in the cross-complaint, as discussed ante, show the conduct at

issue in this cause of action involved the preparation by respondents of the allegedly

"falsified and forged documents at trial" that Bernier contends constituted a "fraud upon

the Court." (Italics added.) We conclude these acts as alleged by Bernier were in

furtherance of respondents' right to petition (see § 426, subd. (b)(1)), as they involved a

"writing made in connection with an issue under consideration or review by a . . . judicial

body" within the meaning of subdivision (e)(2) of section 425.16. (See Navellier v.

Sletten (2002) 29 Cal.4th 82, 89-90 [noting fraud claim for defendant's misrepresenting

and failing to disclose his true intention in negotiating and executing a release involved

statements or writings made in connection with an issue under consideration or review by

a judicial body under subdivision (e)(2) of section 425.16]; Navarro v. IHOP Properties,

Inc. (2005) 134 Cal.App.4th 834, 838, 843 [noting claim alleging that opposing party

obtained a stipulated judgment by making false promises was within scope of section

425.16, subdivision (e)(2)]; Dowling v.. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-


                                             11
1420 [noting claims for fraud and other torts, based inter alia on false representations and

concealed material facts during negotiations of a settlement of an unlawful detainer

action, were within the scope of section 425.16, subdivision (e)(2)].)

       As such, the burden then shifted to Bernier to show a probability of prevailing on

her two causes of action. (See § 425.16, subd. (b)(1).)

       C. Probability of Prevailing on Her Causes of Action

       1. Malicious Prosecution

       To show a probability of prevailing on the merits of her malicious prosecution

cause of action, Bernier " 'must demonstrate that the [cross-]complaint [was] both legally

sufficient and supported by a sufficient prima facie showing of facts to sustain a

favorable judgment if the evidence [she] submitted . . . [was] credited.' " (See Wilson v.

Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) " 'We 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." ' " (Nygard, Inc. v. Uusi-Kerttula (2008) 159

Cal.App.4th 1027, 1036.)

       To prove a malicious prosecution claim, Bernier must show the underlying action

" '(1) was commenced by or at the direction of defendant and was pursued to a legal

termination in . . . plaintiff's[ ] favor [citations]; (2) was brought without probable cause




                                              12
[citations]; and (3) was initiated with malice.' " (Crowley v. Katleman (1994) 8 Cal.4th

666, 676.)

       The parties in their respective briefing raise a series of arguments concerning

whether Bernier satisfied her minimal burden to establish a probability of prevailing on

the merits of her claims. Respondents, on the one hand, contend she cannot make this

showing with respect to Jessie and her first cause of action for malicious prosecution

because there is no evidence the cross-complaint in the construction lawsuit was

"initiated" by him as required to state such a claim, inasmuch as the only cross-

complainant was ICS. Respondents further contend that in any event, Bernier did not

meet her burden under the second prong of the anti-SLAPP statute with respect to both

causes of action because she failed to proffer admissible evidence that she sustained

damages.

       Bernier, on the other hand, contends for the first time on appeal that she proffered

sufficient facts to show Jessie and ICS were alter egos and thus, he in fact "initiated" the

cross-complaint filed by ICS in the construction lawsuit. Bernier further contends she

proffered sufficient evidence to show she was in fact damaged as a result of the allegedly

improper filing of that pleading, as evidenced by, among other items, the attorney fees

she incurred, which evidence was included in her request for judicial notice that was

denied by this court.




                                             13
       We need not decide any of these contentions to resolve this case3 because we

independently conclude Bernier did not and cannot proffer sufficient facts to show the

cross-complaint of ICS in the construction lawsuit was brought without probable cause

and was initiated with malice. (See Crowley v. Katleman, supra, 8 Cal.4th at p. 676.)

       a. Probable Cause

       "An action is deemed to have been pursued without probable cause if it was not

legally tenable when viewed in an objective manner as of the time the action was initiated

or while it was being prosecuted. The court must 'determine whether, on the basis of the

facts known to the defendant, the institution of the prior action was legally tenable.'

(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878.) 'The resolution of

that question of law calls for the application of an objective standard to the facts on which

the defendant acted. [Citation.]' (Ibid.; italics omitted.) The test the court is to apply is

whether 'any reasonable attorney would have thought the claim tenable. . . .' (Id. at

p. 886.)



3      In making our decision, we note that to prevail on a malicious prosecution claim a
party must show the prior action (i.e., the cross-complaint in the construction lawsuit)
was commenced by or at the direction of the defendant. (Crowley v. Katleman, supra, 8
Cal.4th at p. 676.) It is not clear why this language would not apply to Jessie in light of
the legal relationship between him and ICS. Moreover, we note that respondents cite no
authority to establish that a malicious prosecution plaintiff must present evidence of the
facts supporting the damages claimed in order to establish a probability of prevailing on
such a claim for purposes of the anti-SLAPP statute. Instead, the weight of authority
appears to be "there is no requirement that, for purposes of surviving an anti-SLAPP
motion, a malicious prosecution plaintiff must provide specific evidence of the extent of
the damages suffered." (See Sycamore Ridge Apartments, LLC. v. Naumann (2007) 157
Cal.App.4th 1385, 1411-1412.) We note neither side, including respondents (who are
represented by counsel), referenced this law.

                                              14
        " '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

[or her] action either if he [or she] relies upon facts which he [or she] has no reasonable

cause to believe to be true, or if he [or she] seeks recovery upon a legal theory which is

untenable under the facts known to him [or her].' [Citation.]

        "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." (Kleveland v. Siegel & Wolensky, LLP, supra, 215 Cal.App.4th at pp. 550-

551.)

        Here, the record shows that ICS filed its cross-complaint in the construction

lawsuit after a dispute arose between the parties regarding the remodeling project and

after Bernier sued Jessie and ICS. The record further shows that although there was a

dispute between the parties regarding the existence of a written contract in connection

with the remodeling project, there was no dispute, as the trial court found in its statement

of decision following the bench trial, of the existence of an "arrangement" between them

for that project.

        We independently conclude Bernier has not satisfied her burden under step two of

the anti-SLAPP statute of showing a probability of prevailing on her malicious

prosecution cause of action because we conclude the cross-complaint of ICS in the

construction lawsuit, when viewed in an objective manner, was legally tenable. (See


                                             15
Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 878 [noting an action is

without probable cause "if it was not legally tenable when viewed in an objective manner

as of the time the action was initiated or while it was being prosecuted"].) For this reason

alone, we independently conclude the trial court properly granted respondents' anti-

SLAPP motion and struck Bernier's malicious prosecution cause of action.

       b. Malice

       Assuming, for the sake of argument, that Bernier can establish a probability of

prevailing on the lack of probable cause element of malicious prosecution, we

nonetheless conclude she cannot meet her minimal burden to show a probability of

prevailing on the malice element. Malice focuses on the defendant's subjective intent in

initiating the prior action, and is generally an issue to be determined by a jury. (Sheldon

Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 874; HMS Capital, Inc. v. Lawyers

Title Co. (2004) 118 Cal.App.4th 204, 218.) To establish malice, Bernier was required to

show by a preponderance of the evidence that the respondents brought their cross-

complaint in the construction lawsuit based on hostility or ill will or for another improper

purpose. (See Ross v. Kish (2006) 145 Cal.App.4th 188, 204; Padres L.P. v. Henderson

(2003) 114 Cal.App.4th 495, 522.)

       "Malice is usually proved by circumstantial evidence. [Citation.] Although a lack

of probable cause, standing alone, does not support an inference of malice, malice may

still be inferred when a party knowingly brings an action without probable cause."

(Padres L.P. v. Henderson, supra, 114 Cal.App.4th at p. 522.) Whether malice exists




                                             16
presents a factual question and its proof may be inferred from all the circumstances of the

case. (Sheldon Appel Co., supra, 47 Cal.3d at p. 874.)

       Here, we independently conclude Bernier has not proffered sufficient evidence for

purposes of the anti-SLAPP statute from which a reasonable person could infer an

improper motive by ICS and/or respondents in filing and prosecuting the cross-complaint

in the construction lawsuit after a bona fide dispute arose between the parties regarding

the remodeling project and after Bernier had sued the respondents as a result of that

dispute.

       That Bernier contends the dispute over the remodeling project, and the subsequent

filing by ICS of the cross-complaint in the construction lawsuit, resulted from Jessie's

alleged desire for "revenge" against her after being "thrown out of his mother's home in

the mid 1980's with police assistance" does not change our conclusion on this issue.

Evidence of an incident that occurred more than 20 years before ICS filed its cross-

complaint in the construction lawsuit in our view does not support a prima facie showing

of ill will or hostility under the circumstances of this case with respect to the filing of that

pleading, which as noted, came about after Bernier sued respondents in connection with

the remodeling project. (See Ross v. Kish, supra, 145 Cal.App.4th at p. 204.)

       Thus, for this separate and independent reason we independently conclude Bernier

has not shown a probability of prevailing on her malicious prosecution cause of action as

required under the anti-SLAPP statute.




                                              17
       2. Elder Abuse

       To establish a likelihood of prevailing on the merits of her financial elder abuse

cause of action, Bernier was required to proffer admissible evidence to make a prima

facie showing of one or more of the elements of Welfare and Institutions Code section

15610.30, which provides in part:

       "(a) 'Financial abuse' of an elder or dependent adult occurs when a person or entity

does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or

personal property of an elder or dependent adult for a wrongful use or with intent to

defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining

real or personal property of an elder or dependent adult for a wrongful use or with intent

to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or retains, or assists in

taking, secreting, appropriating, obtaining, or retaining, real or personal property of an

elder or dependent adult by undue influence, as defined in Section 15610.70.

       "(b) A person or entity shall be deemed to have taken, secreted, appropriated,

obtained, or retained property for a wrongful use if, among other things, the person or

entity takes, secretes, appropriates, obtains, or retains the property and the person or

entity knew or should have known that this conduct is likely to be harmful to the elder or

dependent adult."

       Here, excluding the "new" evidence proffered by Bernier that we cannot consider,

her elder abuse cause of action as noted is premised on the allegedly false and/or forged

documents created by respondents in connection with the construction lawsuit. As we

previously noted, the record shows the trial court in the construction lawsuit already


                                              18
passed on the issue of whether respondents falsified and/or forged various documents in

connection with the remodeling project, as Bernier alleged in that litigation. It found that

both Jessie and Bernier lacked credibility and were not to be believed and that the

"stories told by Ms. Bernier and Mr. [Jessie] Croteau were both false" regarding the true

arrangement of the remodeling work.

       In light of these findings, we conclude Bernier cannot show a probability of

prevailing on her elder abuse cause of action based on the allegations in her cross-

complaint that respondents allegedly took or appropriated money from her during the

remodeling project by allegedly falsifying and/or forging various construction-related

documents in connection with that project.4




4      In light of our decision, we need not decide whether the litigation privilege (Civ.
Code, § 47, subd. (b)) applies and thus prevents Bernier from establishing a probability of
success on her elder abuse cause of action. (See Silberg v. Anderson (1990) 50 Cal.3d
205, 212 [noting this privilege generally "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 have some connection or
logical relation to the action."]) We note that respondents in any event asserted the
privilege in their demurrer to the cross-complaint, but for whatever reason they did not
contend the privilege applied to prevent Bernier from satisfying her burden under the
anti-SLAPP motion.

                                            19
                                      DISPOSITION

       The trial court's order granting respondents' special motion to strike Bernier's

malicious prosecution and elder abuse causes of action is affirmed. Respondents to

recover their costs of appeal.


                                                                       BENKE, Acting P. J.

WE CONCUR:


HALLER, J.


McINTYRE, J.




                                             20
