Filed 5/5/15 Nobutama Corp. v. Son CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



NOBUTAMA CORPORATION,                                               D065593

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00054905-
                                                                                    CU-NP-NC)
KYUNG HEE SON et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

M. Casserly, Judge. Affirmed.

         Kaloogian & Fuselier, Lowell Robert Fuselier and David T. Hayek for Plaintiff

and Appellant.

         Law Office of Wayne Templin and Wayne Templin for Defendant and

Respondent Kyung Hee Son.

         Klinedinst, Heather L. Rosing and Daniel S. Agle for Defendants and Respondents

Nathan Low, James E. Lund and The Law Offices of James E. Lund.
       This malicious prosecution action brought by Nobutama Corporation, owned by

Mark Lee, arises from underlying litigation in which Nathan Low and his employer, The

Law Offices of James E. Lund, represented Kyung Hee Son in the prosecution of contract

and fraud based claims related to the sale of Lee's floral business to Son. In response to

Nobutama's malicious prosecution action against Son and defendants Low, the Law of

Offices of James E. Lund, and Lund himself (the Attorney Defendants), Son and the

Attorney Defendants brought a special motion to strike under Code of Civil Procedure

section 425.16,1 commonly known as an anti-SLAPP motion, asserting Nobutama could

not show Son's claims were (1) terminated in Nobutama's favor, (2) lacked probable

cause, or (3) Son and the Attorney Defendants initiated the claims against Nobutama

maliciously. The trial court granted the motion and entered judgment in favor of Son and

the Attorney Defendants. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       A. Underlying Litigation

       Mark Lee was the owner of Tri-City Florist, a business he began in 1986.2 His

wife, Joyce Lee, was employed as the shop manager. As result of age and health, Mark

wanted to retire from the business. Mark met with Son several times to discuss her



1      All statutory references are to the Code of Civil Procedure unless otherwise noted.
We refer to the Lees as Mark and Joyce only to avoid confusion and mean no disrespect
by the use of their first names.

2     The factual history of the underlying litigation is drawn from this court's
nonpublished opinion in that case, Kyung Hee Son v. Mark Lee (July 21, 2014,
D063192), of which we take judicial notice.
                                             2
purchase of Tri-City Florist. Son had no prior experience operating a floral business and

wanted to ensure Joyce would continue working as the manager to help Son learn the

business. In 2009 Son entered an agreement to purchase the business from Mark. After

Mark accepted Son's offer to purchase Tri-City Florist, Son, on the advice of her

accountant, formed Ivy Global Corporation, Inc. (ICG) to acquire Tri-City. With Mark's

agreement, the parties amended the escrow instructions to reflect ICG as the buyer and all

further documentation concerning the sale was signed by Son in her capacity as president

of ICG. The sales agreement prohibited Mark from competing with Son within a five-

mile radius of Tri-City Florist.

       After the sale of Tri-City Florist was complete, Joyce continued to work for Son

for several months. When Joyce stopped working for Tri-City Florist, however, sales

began to decline. In March 2010 Joyce took a bridal client on the side. Son later learned

that Joyce also began soliciting business from Tri-City Medical Center, an important

client for Tri-City Florist.

       As a result, Son believed the Lees were violating the noncompetition clause

contained in the sales agreement. Son retained Low as her counsel and when an attempt

to resolve the dispute out of court failed, on June 16, 2011, she filed suit against the Lees.

Son brought her complaint in her individual capacity and alleged contract and tort claims,

and violation of the Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.) against

the Lees "individually and doing business as Nobutama Corporation and/or Nobutama




                                              3
Wedding Studio."3 In discovery, Low obtained sales invoices from the Lees' accountant

showing Nobutama Corporation (Nobutama) had regularly sold flowers to Tri-City

Medical Center. Low filed a motion for leave to amend the complaint to name Nobutama

as a separate defendant.

       Thereafter, Low took the deposition of Mark, who confirmed he formed

Nobutama to engage in floral sales, authenticated the sales invoices obtained from the

Lees' accountant, and admitted Nobutama had made sales to Tri-City Medical Center.

Mark also testified he was the only shareholder, director and officer of Nobutama,

Nobutama had no employees and was never capitalized, and that Nobutama was operated

out of the Lees' home. The Lees did not oppose Low's motion to amend to add

Nobutama as a defendant and the trial court granted the motion. After the first amended

complaint (FAC)4 was filed , Nobutama demurred, arguing the claims asserted against it

failed as a matter of law because the corporation was not formed until after the sale of

Tri-City Florist to Lee.

       The trial court's tentative ruling sustained the demurrer without leave to amend,

rejecting Son's argument based on "reverse alter ego" liability. At the hearing on the

motion, Low argued Son should be afforded the opportunity to amend her complaint

3      Son's complaint asserted claims for rescission based on fraud, negligent
misrepresentation, mistake, and failure of consideration; fraud; negligent
misrepresentation; breach of contract; breach of the covenant of good faith and fair
dealing; intentional interference with prospective economic advantage; and unfair
competition.

4     The FAC asserted the same claims as Son's original complaint against all of the
defendants.
                                             4
because her claims could properly be brought under several additional alternative theories

of liability, including conspiracy, aiding and abetting, and respondeat superior. The court

responded that it thought its ruling was correct, but was inclined to sustain the demurrer

with leave to amend. The court also stated it believed Son's amendment of the complaint

would result in an additional demurrer and the delay of the July 2012 trial date into 2013.

In response to these comments about delay, Low expressed his desire to keep the existing

trial date but wanted to ensure he would have the ability to amend with respect to

Nobutama if the trial date were later postponed for other reasons. The court agreed that if

Son chose not to amend and the trial date was postponed later, Son would then have the

opportunity to amend: "I want to make it clear for the record, if you elect to go on these

pleadings to preserve the trial date, and I'm convinced at a later time that I can't hold that

trial date for you, I would probably allow you to then revisit the amendment to the

pleadings that you forgave."5

       After the court issued its order sustaining Nobutama's demurrer, Son elected not

to amend and judgment was entered in Nobutama's favor. The case proceeded to a bench

trial against the Lees in July 2012. The court bifurcated trial to consider first whether

Son had standing to pursue her claims. At the conclusion of the presentation of evidence

on this phase, the Lees moved for nonsuit against Son on the ground she lacked standing

to sue because she had vested title in IGC. The court granted the motion with respect to

Son's contract claims, but denied the motion with respect to her fraud and negligent


5     The minute order states the demurrer is sustained without leave to amend. The
Lees do not dispute, however, that the trial court provided Son with leave to amend.
                                              5
misrepresentation claims. After the second phase of the trial on these claims the court

concluded the Lees had not committed fraud or negligent misrepresentation in the sale of

Tri-City Florist.

       At Son's request the trial court issued a statement of decision, which found the

Lees did not misrepresent their intent to retire at the time of the sale, but decided to

resume competing with Tri-City after the sale. The court also found there was

miscommunication with respect to the scope of the business being sold to IGC, but the

mistakes were caused by the real estate broker involved in the transaction and could not

be attributed to the Lees. Son appealed the trial court's final judgment.6

       B. The Instant Malicious Prosecution Action

       While Son's appeal was pending, Nobutama filed a complaint asserting a claim of

malicious prosecution. Nobutama's complaint alleged Son and the Attorney Defendants

lacked probable cause to believe Son had a meritorious claim against it and acted with

malice by amending Son's complaint to add Nobutama as a defendant.

       Son and the Attorney Defendants each filed anti-SLAPP motions asserting the

filing of the lawsuit was protected under section 425.16 and Nobutama could not

establish a probability of prevailing on its claims. Nobutama opposed the motion. After

oral argument, the trial court granted the anti-SLAPP motions. Judgment was entered for

Son and the Attorney Defendants. Thereafter, both sought and obtained attorney fees

under section 425.16, subdivision (c)(1).


6      This court affirmed the trial court's judgment in favor of the Lees.

                                              6
                                        DISCUSSION

       Nobutama contends the trial court erred in granting the anti-SLAPP motions

because it established a probability of prevailing on its claims of malicious prosecution

against Son and the Attorney Defendants. Nobutama asserts it offered sufficient

evidence to support each of the three elements of its claims: (1) The prior action was

terminated favorably to Nobutama, (2) Son and the Attorney Defendants did not have

probable cause to support their claims against Nobutama, and (3) the claims were

initiated with malice.

                                               I

        "Review of an order granting or denying a motion to strike under section 425.16

is de novo. [Citation.] 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.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

                                              II

       Under section 425.16, subdivision (b)(1) any cause of action against a person

arising from that person's exercise of free speech in connection with a public issue is

subject to a special motion to strike. The anti-SLAPP statute was enacted " 'to prevent

and deter "lawsuits . . . brought primarily to chill the valid exercise of the constitutional

rights of freedom of speech and petition for the redress of grievances." [Citation.]

                                               7
Because these meritless lawsuits seek to deplete "the defendant's energy" and drain "his

or her resources" [citation], the Legislature sought " 'to prevent SLAPPs by ending them

early and without great cost to the SLAPP target.' " ' " (Soukup v. Law Offices of Herbert

Hafif, supra, 39 Cal.4th at p. 278.)

       In determining whether an action is subject to a special motion to strike under the

anti-SLAPP statute, courts engage in a two-step process. First, the defendant must make

a threshold showing that the claim arises from protected activity. (Taus v. Loftus (2007)

40 Cal.4th 683, 712; Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If that showing is

made, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the

claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

                                               III

       There is no dispute Nobutama's malicious prosecution claims arise from conduct

that is protected under section 425.16. Therefore, we must determine whether Nobutama

met its burden of having "demonstrated a probability of prevailing on the claim[s]."

(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To satisfy this

burden, "the plaintiff must 'state[ ] and substantiate[ ] a legally sufficient 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." ' " (Jarrow

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) "Section 425.16 therefore

establishes a procedure where the trial court evaluates the merits of the lawsuit using a



                                               8
summary-judgment-like procedure at an early stage of the litigation." (Varian Medical

Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

       "[I]n order to establish a cause of action for malicious prosecution of either a

criminal or civil proceeding, a plaintiff must demonstrate 'that the prior action (1) was

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

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

and (3) was initiated with malice [citations].' " (Sheldon Appel Co. v. Albert & Oliker

(1989) 47 Cal.3d 863, 871-872.)

                                              A

       Nobutama asserts the first element is established because the court in the

underlying action sustained its demurrer and Son failed to amend her complaint "creating

the presumption she had stated her best case" and confirming she "could not assert any

facts to breath merit into her claims." " '[F]avorable' termination does not occur merely

because a party complained against has prevailed in an underlying action. While the fact

he has prevailed is an ingredient of a favorable termination, such termination must further

reflect on his innocence of the alleged wrongful conduct." (Lackner v. LaCroix (1979)

25 Cal.3d 747, 751.) "If the resolution of the underlying litigation 'leaves some doubt as

to the defendant's innocence or liability[, it] is not a favorable termination, and bars that

party from bringing a malicious prosecution action against the underlying plaintiff.' "

(Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855, italics omitted.)

       "A voluntary dismissal may be an implicit concession that the dismissing party

cannot maintain the action and may constitute a decision on the merits." (Eells v.

                                               9
Rosenblum, supra, 36 Cal.App.4th at p. 1855.) However, "[t]he reasons for the dismissal

of the action must be examined to determine whether the termination reflected on the

merits." (Ibid.) Further, " ' "the focus is not on the malicious prosecution plaintiff's

opinion of his innocence, but on the opinion of the dismissing party." ' " (Robbins v.

Blecher (1997) 52 Cal.App.4th 886, 893, italics omitted.)

       Son and the Attorney Defendants assert the decision not to amend amounted to

voluntary dismissal, but argue it was not a concession Son's claims lacked merit because

the decision was made to preserve the July 2012 trial date. In support of this assertion

they point to Low's statements at the demurrer hearing concerning his desire to keep the

trial date, even if doing so meant forgoing claims against Nobutama that he and Son

believed were meritorious.

       We agree with Son and the Attorney Defendants that the proceedings below left

doubt as to Nobutama's liability and, therefore, Son's voluntary dismissal did not amount

to a determination in favor of Nobutama on the merits in this case. Low was clear that

his client wanted to preserve the upcoming trial date and that Son was willing to forgo

meritorious claims against Nobutama to keep that date. Under these circumstances, the

decision not to amend the complaint and accept the judgment against Son did not amount

to a termination on the merits. Rather, the termination at that stage was based on Son and

the Attorney Defendants' desire to move the case towards trial without additional delay.

(See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 881 ["The test is whether

or not the termination tends to indicate the innocence of the defendant or simply involves



                                             10
technical, procedural or other reasons that are not inconsistent with the defendant's

guilt."].)

                                               B

        Even if we assume for argument that Son and the Attorney Defendants' decision

not to amend was a termination on the merits in favor of Nobutama, we agree with the

trial court that probable cause to assert claims against Nobutama existed. The "existence

or nonexistence of probable cause is a legal question to be resolved by the court . . . ."

(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817 (Wilson).) "[P]robable

cause is determined objectively, i.e., without reference to whether the attorney bringing

the prior action believed the case was tenable." (Ibid.)

        The "standard of probable cause to bring a civil suit [is] equivalent to that for

determining the frivolousness of an appeal [citation], i.e., probable cause exists if 'any

reasonable attorney would have thought the claim tenable.' [Citation.] This rather lenient

standard for bringing a civil action reflects the 'important public policy of avoiding the

chilling of novel or debatable legal claims.' " (Wilson, supra, 28 Cal.4th at p. 817.)

"Attorneys and litigants . . . ' "have a right to present issues that are arguably correct,

even if it is extremely unlikely that they will win . . . ." ' [Citation.] Only those actions

that ' "any reasonable attorney would agree [are] totally and completely without merit" '

may form the basis for a malicious prosecution suit." (Ibid.) " ' "Counsel and their

clients have a right to present issues that are arguably correct, even if it is extremely

unlikely that they will win. . . ." ' " (Jarrow Formulas, Inc. v. LaMarche, supra, 31

Cal.4th at p. 742.)

                                               11
       Nobutama argues Son and the Attorney Defendants lacked probable cause to bring

contract claims against it because Son lacked standing and because Nobutama was not a

party to the sales agreement and, in fact, was not in existence at the time the agreement

was entered. Similarly, with respect to Son's tort causes of actions, Nobutama argues

probable cause was lacking because it did not exist at the time the alleged

misrepresentations were made and nothing it did later contributed to the alleged fraud.

Nobutama also asserts there was no probable cause to bring a claim for violation of the

Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) because ICG, not Son, was

Nobutama's competitor.

       Son and the Attorney Defendants respond that Nobutama's arguments are

premised on a standard that is too high. They assert they were not required to show their

claims would ultimately have succeeded, only that no reasonable attorney could have

thought the claims tenable. Son and the Attorney Defendants also assert that in addition

to the alter ego theory the trial court initially rejected, there were several theories of

liability under which Son could have asserted claims against Nobutama, including

conspiracy, aiding and abetting, and respondeat superior.

       We agree with Son and the Attorney Defendants that the standard Nobutama

asserts is too high. The plaintiffs in the underlying litigation were not required to

establish their claims would ultimately be successful, only that there was a basis to assert

them. (See Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1019 [" ' "To hold that the

person initiating civil proceedings is liable unless the claim proves to be valid, would

throw an undesirable burden upon those who by advancing claims not heretofore

                                               12
recognized nevertheless aid in making the law consistent with changing conditions and

changing opinions." ' "].) Son amended her complaint because Low had recently learned

Nobutama was soliciting business from Tri-City Medical in violation of the sales

agreement (a factual finding ultimately made by the court after trial) and that Nobutama

appeared to be a sham corporation. These facts provided the necessary probable cause

for Son to assert claims against Nobutama. Nobutama has not shown that no reasonable

attorney would have found these claims tenable.7

                                             C

       Finally, even if we assume Nobutama could have established the first two

elements of its malicious prosecution claims, it failed to present evidence that Son or the

Attorney Defendants brought their claims with malice. The element of malice focuses on

the defendant's subjective intent in initiating the prior action. (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, Nobutama was required to show

by a preponderance of the evidence that Son and the Attorney Defendants brought claims


7      Son's claims sounding in contract are arguably less tenable than those sounding in
tort because Nobutama did not yet exist at the time Son entered the sales agreement. Son
and the Attorney Defendants, however, assert Nobutama could be held liable for breach
of contract based on a theory of reverse alter ego. They contend Nobutama was a sham
corporation created for the purpose of competing against Tri-City Florist since Mark was
barred from doing so by the sales agreement. This is a novel theory that may have been
ultimately rejected (see Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th
1510, 1524 [rejecting application of "outside reverse [corporate] piercing" to add
corporation as judgment creditor]), but we do not agree that no reasonable attorney would
have thought the claim tenable. In any event, because Nobutama did not establish there
was a termination on the merits in its favor in the underlying litigation, any lack of
probable cause for the contract claims does not warrant reversal.
                                             13
against Nobutama based on hostility or ill will, or for another improper purpose. (See

Ross v. Kish (2006) 145 Cal.App.4th 188, 204.) "Suits with the hallmark of an improper

purpose are those in which: ' " . . . (1) the person initiating them does not believe that his

claim may be held valid; (2) the proceedings are begun primarily because of hostility or

ill will; (3) the proceedings are initiated solely for the purpose of depriving the person

against whom they are initiated of a beneficial use of his property; [or] (4) the

proceedings are initiated for the purpose of forcing a settlement which has no relation to

the merits of the claim." ' " (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th

1135, 1157.)

       Aside from its assertion that Son and the Attorney Defendants lacked probable

cause, as evidence of malice Nobutama points only to (1) Son's lack of standing to pursue

her claims and (2) Nobutama's counsel's request that Son and the Attorney Defendants

dismiss the claims against it based on the fact that Nobutama was not registered with the

California Secretary of the State until December 2010. We do not agree with Nobutama

that these facts support an inference of malice on the part of Son or the Attorney

Defendants. As Nobutama itself points out, Son's standing was not finally adjudicated

until trial when the court found she did not have standing to pursue her contract claims

because the business had vested in ICG, not Son individually. Son disagreed with this

finding and pursued her claims through an appeal in this court. That she was ultimately

not successful does not show she pursued her claims for an improper purpose.

       Nobutama's assertion that Son's refusal to dismiss her claims on Nobutama's

counsel's demand supports an inference of malice is also without merit. At the time

                                              14
Nobutama demanded that Son dismiss her claims, Low had recently learned the Lees had

been violating the noncompetition provision of the sales agreement through Nobutama.

This evidence reasonably supported the Attorney Defendant's and Son's decision to

pursue claims against Nobutama. Nobutama's contrary position concerning its liability at

the time is not evidence of malice on the part of Son or the Attorney Defendants. (See

Marijanovic v. Gray, York & Duffy (2006) 137 Cal.App.4th 1262, 1272, fn. 5 ["[I]t could

well constitute malpractice for an attorney to drop a lawsuit, for which supporting

evidence existed, merely because opposing counsel asserted the action was baseless."].)

In sum, we agree with the trial court that Nobutama failed to present evidence from

which malice could be inferred.

                                     DISPOSITION

       The judgment is affirmed. Respondents to recover their costs of appeal.



                                                                                NARES, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




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