Filed 8/17/20 Windy Pizza Plus v. Masserat CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


 WINDY PIZZA PLUS, LLC et al.,                                    B292047

           Plaintiffs and Appellants,                             (Los Angeles County
                                                                  Super. Ct. No. SC128580)
           v.

 SASSAN J. MASSERAT et al.,

           Defendants and
           Respondents.


      APPEAL from an order and judgment of the Superior Court
of Los Angeles County, Bobbi Tillmon, Judge. Affirmed.
      Law Offices of Thomas S. Byrnes and Thomas S. Byrnes for
Plaintiffs and Appellants.
      Nemecek & Cole, Jonathan B. Cole and Mark Schaeffer for
Defendant and Respondent Sassan J. Masserat.
      Ecoff Campain & Tilles, Lawrence C. Ecoff and Alberto J.
Campain for Defendants and Respondents Jonathan Pakravan
and Law Offices of Jonathan Pakravan.
             _____________________________________
       The trial court granted Jonathan Pakravan and Law
Offices of Jonathan Pakravan, APC’s and Sassan Masserat’s
special motions to strike the complaint of Windy Pizza Plus, LLC,
Antonio Pellini and Filippo Alberti Pezzoli (collectively the Windy
Pizza parties) for malicious prosecution, abuse of process,
intentional infliction of emotional distress and related common
law torts. (Code Civ. Proc., § 425.16.)1 On appeal the Windy
Pizza parties contend the court erred in ruling they had not
established a probability of prevailing on their cause of action for
malicious prosecution, conceding their other claims are barred by
the litigation privilege (Civ. Code, § 47, subd. (b)). We affirm.
      FACTUAL AND PROCEDURAL BACKGROUND
      1. The Windy Pizza Parties’ Complaint
      The Windy Pizza parties’ complaint, filed December 21,
2017, arose from a lawsuit brought and pursued by Masserat and
Pakravan2 on behalf of their client Eugenia Catellani, Pellini’s
former wife and a former employee of Windy Pizza.3 As alleged
in the complaint, Pellini, an Italian citizen residing in California,
owned a majority interest in Windy Pizza through his Italian
company and was its general manager responsible for the three


1     Statutory references are to this code unless otherwise
stated.
2     Although Jonathan Pakravan and his eponymous
professional corporation are separate legal entities and each is
named a defendant in the case at bar, for simplicity we use
Pakravan to refer to Jonathan Pakravan individually and to both
Jonathan Pakravan and the professional corporation collectively
as context requires.
3     Catellani was not named a defendant.




                                  2
Windy Pizza restaurants in Los Angeles County. Pezzoli, an
Italian citizen who had temporarily relocated to Los Angeles
County, allegedly owned 20 percent of Windy Pizza.4
       According to the complaint, Catellani married Pellini in
2010 and later became Windy Pizza’s vice president. In February
2013 the couple separated when Catellani abruptly returned to
Italy. In May 2013 Pellini filed a marital dissolution action in
Los Angeles Superior Court (case No. BD582312). In March 2014
Pakravan became Catellani’s counsel of record in the dissolution
action.
       On July 1, 2014, while the dissolution action was pending,
Masserat, allegedly with Pakravan’s knowledge and approval,
filed on Catellani’s behalf an employment action in Los Angeles
Superior Court (case No. SC122769) against the Windy Pizza
parties asserting 20 causes of action, including violations of the
California Labor Code, breach of oral and implied-in-fact
employment contracts, assault, battery, retaliation and
constructive discharge. Catellani sued Pellini and Pezzoli at
least in part as alter egos of Windy Pizza. Masserat and
Pakravan eventually became Catellani’s attorneys of record in
both the marital dissolution and employment actions.
       The Windy Pizza parties’ complaint alleged that in July
2015 Pezzoli filed a motion for summary judgment and Windy
Pizza filed a motion for summary adjudication in the employment
action. The hearing on the motions was continued for several
months to accommodate Masserat’s schedule. In April 2016,

4     Pezzoli filed a declaration in opposition to the
section 425.16 motions stating his wife owned 20 percent of
Windy Pizza, inherited from her father; he was not an owner of
the company.




                                3
before Catellani had responded to the motions, Catellani and
Pellini settled their marital dissolution action. As part of the
settlement Catellani agreed to dismiss her employment action
with prejudice. On April 25, 2016 Masserat and Pakravan filed a
request for dismissal with prejudice as to all defendants in the
employment action.
      The Windy Pizza parties, contending Catellani’s
employment action was without merit, alleged in their complaint
(1) Catellani falsely claimed she had been forced to resign from
Windy Pizza as a result of abuse and other intolerable working
conditions; (2) contrary to Catellani’s claim, Pezzoli and Pellini
were not her employers; and (3) as Windy Pizza’s vice president,
Catellani was exempt from the wage-and-hour laws she alleged
had been violated. The complaint further alleged Masserat and
Pakravan brought and pursued the employment action—despite
knowing it was based on falsehoods and without merit—to
obtain, for their own financial benefit, a quick settlement they
expected would be paid by Windy Pizza’s insurance carrier and/or
by Pezzoli’s wealthy wife. Masserat and Pakravan also allegedly
brought the employment action to serve as leverage in settling
the dissolution action.
      2. Masserat’s and Pakravan’s Special Motions To Strike
      On February 27, 2018 Pakravan moved to strike the Windy
Pizza parties’ complaint pursuant to section 425.16. Pakravan
argued all the causes of action arose from acts in furtherance of
the right of petition within the meaning of section 425.16.
Pakravan also contended the Windy Pizza parties could not
establish a probability of prevailing on their claims because they
could not prove a favorable termination of Catellani’s underlying
employment action, a necessary element of their malicious




                                4
prosecution cause of action, and their claims were all barred by
section 340.6’s one-year statute of limitations for actions against
an attorney (other than for actual fraud) arising from the
performance of professional services.
       In support of the motion Pakravan submitted his
declaration and attached a copy of the April 20, 2016 settlement
agreement in Catellani and Pellini’s dissolution action, which had
been executed by Pellini, Catellani and their attorneys. The
agreement provided, “As a material and integral part of this
Settlement, [Catellani] agrees to dismiss with prejudice the
entire civil lawsuit now pending in this Court, West District, and
assigned Los Angeles Superior Court Case Number SC 122769 as
[a] condition of [Pellini’s] obligations hereunder. [¶] [Catellani’s]
attorney has agreed to provide to [Pellini’s] counsel a fully
executed Request for Dismissal with Prejudice of LASC Case
No. SC 122769 as a prerequisite for [Pellini’s] obligation to begin
making the Equalization Payments set forth in Paragraph 506.”
Paragraph 506, in turn, provided, “To equalize the division of the
community property assets and obligations,” Pellini “shall pay to
[Catellani] the sum of $130,000,” payable in installments due on
specified dates. The settlement agreement also provided that
Windy Pizza guaranteed the payments to be made by Pellini.
       Pakravan’s declaration also attached a copy of the request
for dismissal with prejudice filed in Catellani’s employment
action on April 25, 2016. The request specifically stated,
“Dismissal per settlement in LASC BD582312, based on payment
of $130,000 to Plaintiff by Defendant Antonio Pellini only,” with
the word “only” underlined.
       On March 5, 2018 Masserat filed his special motion to
strike, as well as a supporting declaration and exhibits, including




                                 5
the judgment entered in the marital dissolution action. That
judgment, at paragraph 24, provided, “As set forth in Section 750
of the Settlement Agreement signed by the Parties and their
respective attorneys on April 20, 2016, as [a] material and
integral part of this Stipulated Judgment, [Catellani] agreed to
dismiss with prejudice the entire civil action pending in the
Superior Court of California, County of Los Angeles, Case
Number SC 122769 as a condition of [Pellini’s] obligations
hereunder, including his agreement to make the Equalization
Payment described above in Paragraph 23 of this Judgment.” In
addition to arguing the Windy Pizza parties’ claims arose from
protected activity, Masserat contended they could not establish a
probability of prevailing on their claims because they did not
obtain a favorable termination of the underlying employment
action, Masserat had sufficient probable cause to prosecute the
employment action and Masserat did not act with malice toward
them in prosecuting the employment action. Masserat also
contended all the claims were barred by the statute of limitations
set forth in section 340.6 and claims other than for malicious
prosecution were barred by the litigation privilege set forth in
Civil Code section 47, subdivision (b).
      3. The Windy Pizza Parties’ Opposition to the Special
         Motions To Strike
      On May 23, 2018 the Windy Pizza parties filed their
opposition to Pakravan’s and Masserat’s special motions to
strike, supported by declarations from Pellini and Pezzoli. They
acknowledged the propriety of striking all causes of action other
than for malicious prosecution based on the litigation privilege
and essentially conceded their malicious prosecution claim arose
from protected activity within the meaning of section 425.16.




                                6
They insisted, however, there was a probability they would
prevail on their malicious prosecution claim and argued the
motions should be denied as to that cause of action.
      Specifically, the Windy Pizza parties argued Catellani’s
employment action had terminated in their favor because it had
been dismissed with prejudice. They also contended Catellani
had dismissed her action to avoid having to oppose the pending
summary judgment and summary adjudication motions by
committing perjury as to her status as an exempt executive
employee. Accordingly, they argued, Catellani’s voluntary
dismissal with prejudice of her employment action should be
construed as a favorable termination.5
      4. The Trial Court’s Ruling
       After oral argument at a hearing on June 6, 2018, the trial
court granted both special motions to strike. In its ruling the
court found all causes of action arose from protected activity, the
filing of the employment action. The trial court also found the
Windy Pizza parties had failed to establish a probability of
prevailing on any of their claims. First, the court ruled the
litigation privilege barred all causes of action other than for
malicious prosecution. Second, the court found the Windy Pizza
parties were unable to show the employment action had been
terminated in their favor, an essential element of their malicious
prosecution claim, because they had all been dismissed as


5     The opposition to the special motions to strike also included
responses to Pakravan and Masserat’s statute of limitations
argument and to Masserat’s arguments regarding the probable
cause and malice elements of a malicious prosecution cause of
action.




                                 7
defendants in that action as a condition of Catellani and Pellini’s
settlement of the dissolution action.6
                          DISCUSSION
      1. Section 425.16, the Anti-SLAPP Statute7
       Section 425.16 provides, “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).)
       In ruling on a motion under section 425.16, the trial court
engages in a two-step process. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
       In making its determination the court must consider the
parties’ pleadings and affidavits describing the facts on which
liability or defenses are predicated. (§ 425.16, subd. (b)(2).) “As
to the second step, a plaintiff seeking to demonstrate the merit of
the claim ‘may not rely solely on its complaint, even if verified;


6     The court did not address the other challenges to the
malicious prosecution claim raised by Pakravan and Masserat.
7     SLAPP is an acronym for “strategic lawsuit against public
participation.” (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 413, fn. 2.)




                                 8
instead, its proof must be made upon competent admissible
evidence.’” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 788.) “‘We have described this second step as a “summary-
judgment-like procedure.” [Citation.] The court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff’s evidence
as true, and evaluates the defendant’s showing only to determine
if it defeats the plaintiff’s claim as a matter of law.’” (Ibid.;
see Taus v. Loftus (2007) 40 Cal.4th 683, 714 [the court should
grant the section 425.16 motion “‘if, as a matter of law, the
defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim’”].)
        We review de novo an order granting or denying a special
motion to strike under section 425.16. (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 884; Park v. Board of Trustees
of California State University (2017) 2 Cal.5th 1057, 1067.)
      2. The Windy Pizza Parties Did Not Demonstrate a
         Probability of Succeeding on Their Malicious Prosecution
         Claim
        The Windy Pizza parties do not dispute their malicious
prosecution claim arises from protected activity. The burden
thus shifted to them to establish a probability of prevailing on
that claim. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.)
        A cause of action for malicious prosecution “consists of
three elements. The underlying action must have been:
(i) initiated or maintained by, or at the direction of, the
defendant, and pursued to a legal termination in favor of
the malicious prosecution plaintiff; (ii) initiated or maintained




                                 9
without probable cause; and (iii) initiated or maintained
with malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th
767, 775; accord, Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050,
1057-1058.) “Favorable termination . . . ‘is an essential element
of the tort of malicious prosecution, and it is strictly enforced.’”
(Lane v. Bell (2018) 20 Cal.App.5th 61, 68; accord, Cox v. Griffin
(2019) 34 Cal.App.5th 440, 450.)
       “‘[I]n order for the termination of a lawsuit to be considered
favorable to the malicious prosecution plaintiff, the termination
must reflect on the merits of the action and the plaintiff’s
innocence of the misconduct alleged in the lawsuit.’” (Casa
Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341-342.)
“However, a ‘“favorable” termination does not occur merely
because a party complained against has prevailed in an
underlying action . . . . If the termination does not relate to the
merits—reflecting on neither innocence of nor responsibility for
the alleged misconduct—the termination is not favorable in the
sense it would support a subsequent action for malicious
prosecution.’ [Citation.] Thus, a ‘technical or procedural
[termination] as distinguished from a substantive termination’ is
not favorable for purposes of a malicious prosecution claim.”
(Id. at p. 342.) An example of a technical or procedural
termination that is not favorable for purposes of a malicious
prosecution claim is a dismissal pursuant to a settlement. (Ibid.;
accord, Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 874 [a
“technical or procedural termination—such as a dismissal on
statute of limitations grounds, pursuant to a settlement, or on
the grounds of laches—is not favorable for purposes of a
malicious prosecution claim”]; see also Coleman v. Gulf Ins.
Group (1986) 41 Cal.3d 782, 794, fn. 9 [“termination of an action




                                 10
by compromise or settlement has been held to be an insufficient
basis for a malicious prosecution action”].)
       The Windy Pizza parties argue they stated a legally
sufficient claim for malicious prosecution and made a prima facie
factual showing sufficient to sustain a favorable judgment. They
contend, because Catellani voluntarily dismissed the underlying
employment action with prejudice, the trial court erred in finding
against them on the element of favorable termination. However,
more is required: “It is not enough . . . merely to show that the
proceeding was dismissed” to establish a favorable termination.
(Jaffe v. Stone (1941) 18 Cal.2d 146, 150; accord, Cox v. Griffin,
supra, 34 Cal.App.5th at p. 451.)
       To be sure, cases have stated or otherwise suggested a
voluntary dismissal is presumed to be a favorable termination on
the merits. (See, e.g., Lee v. Kim (2019) 41 Cal.App.5th 705, 720;
Sycamore Ridge Apartments, LLC v. Naumann (2007)
157 Cal.App.4th 1385, 1400; but see JSJ Limited Partnership v.
Mehrban (2012) 205 Cal.App.4th 1512, 1524 [where the
underlying action had been voluntarily dismissed after the trial
court had sustained a demurrer with leave to amend on the basis
of res judicata, the court of appeal characterized the plaintiff in
the subsequent malicious prosecution action as “rel[ying] on the
res judicata ruling to support its position that the dismissal
constituted a termination on the merits” because “[o]therwise
there is no reason to determine that the dismissal reflected on
the merits”].) Any such presumption, however, is rebuttable.
(Cf. Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821 [“[i]n denying a motion to strike on the ground that the
plaintiff has established the requisite probability of success,
therefore, the trial court necessarily concludes that the plaintiff




                                11
has substantiated a legally tenable claim through a facially
sufficient evidentiary showing and that the defendant's contrary
showing, if any, does not defeat the plaintiff's as a matter of
law”].) Even if a voluntary dismissal were presumed to
constitute a favorable termination, Pakravan and Masserat
rebutted the presumption and defeated the malicious prosecution
claim as a matter of law by presenting evidence Catellani had
voluntarily dismissed her employment action with prejudice
pursuant to a settlement. (See Casa Herrera, Inc. v. Beydoun,
supra, 32 Cal.4th at p. 342; Coleman v. Gulf Ins. Group, supra,
41 Cal.3d at p. 794, fn. 9; Nunez v. Pennisi, supra,
241 Cal.App.4th at p. 874.) As observed by the trial court, the
Windy Pizza parties’ complaint alleged, “As part of her
[settlement] agreement, Catellani . . . agreed to dismiss with
prejudice the entire Employment Action with prejudice against
not only Pellini but also, Windy Pizza and Pezzoli who, obviously,
were not parties to the Divorce Action.” This allegation was
supported by Pellini’s declaration filed in opposition to the
motions to strike.8 Moreover, the settlement agreement provided
Catellani would dismiss her employment action “[a]s a material
and integral part of” the settlement.
       Relying on a statement by the trial court during the
hearing on the motions, the Windy Pizza parties assert the
court’s ruling was premised on its erroneous belief there had been
a global settlement. They emphasize the court’s comment,

8     Pellini’s declaration stated, “As part of her agreement,
Catellani . . . agreed to dismiss with prejudice the entire
Employment Lawsuit with prejudice against not only me, but
also Windy Pizza and Pezzoli, who were not parties in the
Dissolution Lawsuit.”




                                12
“Clearly the settlement was probably an effort to make a global
settlement in a dissolution of marriage action which included the
agreement to dismiss the employment case, which had nothing to
do, so to speak, with the dissolution of marriage case.” The
underlying employment action had not settled, they note; there
was only a settlement in the dissolution action. But in response
to their counsel’s argument there was no global settlement, the
court stated, “I was using [that terminology] in a descriptive
form.” “I recognize there was no specific reference, but there’s
that connection because, as you just indicated, in the family law
matter, it was conditional on the commencement of the
settlement agreement payout . . . that the employment case be
dismissed. And the employment case was, in fact, dismissed. So
we know all of that.” The trial court was not confused. It
correctly found the employment action had been dismissed as a
condition of settlement in the marital dissolution action.
       The Windy Pizza parties also contend, notwithstanding the
express condition in the marital settlement agreement requiring
Catellani to dismiss the employment action, Catellani, in fact,
dismissed that action because she knew her claims lacked factual
and legal support. Specifically, they assert her verified complaint
falsely characterized her as an hourly employee denied wage and
hour benefits and contained other allegations disproven by
Catellani’s income and expense declaration in the marital
dissolution action (which they attached as an exhibit to Pezzoli’s
declaration in opposition to the motions to strike). They also
contend her verified complaint falsely alleged Pezzoli was liable
as her employer despite her knowledge he was not an owner,
director or employee of Windy Pizza during the relevant period.
It is a reasonable inference, they argue, that Catellani elected to




                                13
dismiss her employment action to avoid having to submit a false
declaration in opposition to the pending motions for summary
judgment and summary adjudication.
       Although a court must accept as true evidence favorable to
the plaintiff in determining a section 425.16 special motion to
strike, it need not consider speculative inferences. (See, e.g.,
Monster Energy Co. v. Schechter, supra, 7 Cal.5th at p. 795
[“speculative inferences not supported by the evidence proffered
need not be considered”]; Abir Cohen Treyzon Salo, LLP v. Lahiji
(2019) 40 Cal.App.5th 882, 890 [same]; Christian Research
Institute v. Alnor (2007) 148 Cal.App.4th 71, 89 [reversing denial
of a section 425.16 motion to strike where, among other grounds,
plaintiffs relied on an inference that “amount[ed] to little more
than a speculative possibility”]; cf. Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 864 [“[s]peculation, however, is not
evidence”]; Annod Corp. v. Hamilton & Samuels (2002)
100 Cal.App.4th 1286, 1298-1299 [“‘“[w]hen opposition to a
motion for summary judgment is based on inferences, those
inferences must be reasonably deducible from the evidence, and
not such as are derived from speculation, conjecture, imagination,
or guesswork”’”].) The inference that Catellani dismissed her
employment action to avoid having to submit a false declaration
is the product of just such impermissible speculation and
conjecture.
       The Windy Pizza parties’ reliance in their reply brief on
Ross v. Kish (2006) 145 Cal.App.4th 188 (Ross) to support their
conjecture is misplaced. In Ross the defendant in the malicious
prosecution action had refused to be deposed in his underlying
action for breach of contract and legal malpractice, and his
lawsuit was dismissed as a discovery sanction. The malicious




                                14
prosecution action plaintiff argued the dismissal of the
underlying action was the equivalent of a dismissal for failure to
prosecute, which has been recognized as a favorable termination.
(Id. at pp. 191, 198.) Division Three of this court agreed because
dismissal of an action for refusal to be deposed and dismissal for
failure to prosecute both “reflect[] adversely on the merits of the
action based on the natural assumption that one does not simply
abandon a meritorious action once instituted.” (Id. at p. 200.) In
reaching this conclusion the Ross court relied on the malicious
prosecution defendant’s conduct in the underlying action,
specifically, his defiance of discovery orders, failure to appear for
his deposition, failure to make any showing of future compliance
and failure to file any opposition to, or appear at the hearing on,
a motion for terminating sanctions. (Ibid.)
       Here, in contrast to Ross, the Windy Pizza parties
presented no evidence Catellani abandoned her employment
action: In particular, there was no evidence the deadline for
Catellani to oppose the pending motions for summary judgment
and summary adjudication had passed when she agreed to
dismiss that lawsuit as part of the marital settlement agreement.
A court need not consider the dismissing party’s motivations to
settle where the dismissal was pursuant to a settlement. (See
Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th
409, 414 [“[i]t is not necessary . . . to examine the motivations of
the parties [to settle]—a negotiated settlement not only creates
an ambiguity as to the merits of the underlying action, it is
entirely inconsistent with bringing a further lawsuit for malicious
prosecution”]; Villa v. Cole (1992) 4 Cal.App.4th 1327, 1337
[rejecting argument the court must “inquire into the parties’
motivations in settling the underlying lawsuit” and “look behind




                                 15
the settlement to see if Cole and Seeterlin sought to terminate
the litigation because they did not think it could be won”].)
       The Windy Pizza parties also note there was no waiver in
the marital settlement agreement of any claims against Masserat
and Pakravan. In addition, Windy Pizza and Pezzoli were not
parties to the dissolution proceedings or the settlement
agreement in that case. Neither fact is significant. Because the
employment action was dismissed as part of a settlement (albeit
in a different proceeding), the termination of that action was not
related to its merits—that is, not a favorable termination for
Windy Pizza, Pellini or Pezzoli for purposes of a malicious
prosecution action. (See Villa v. Cole, supra, 4 Cal.App.4th at
p. 1336 [“even where a defendant does not agree to a settlement
made on his behalf, his or her dismissal from the lawsuit
pursuant to that settlement will not be viewed as a favorable
termination as long as it was a necessary condition to
achievement of the overall settlement”]; Cantu v. Resolution
Trust Corp. (1992) 4 Cal.App.4th 857, 883 [“[e]ven the dismissal
of a party who refuses to participate in a settlement concluded by
other parties does not constitute a favorable termination for the
nonsettling party”]; Haight v. Handweiler (1988) 199 Cal.App.3d
85, 89 [“Haight’s dismissal was a condition of the settlement with
Gergen. Such a termination does not necessarily reflect Godes’s
opinion that his action against Haight lacked merit and thus does
not qualify as a favorable termination in the context of a
malicious prosecution action”].)
       Finally, Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, a case
on which the Windy Pizza parties rely, does not compel a
different conclusion. In Siebel the malicious prosecution plaintiff
had obtained after a jury trial a favorable judgment on the claims




                                 16
brought against him in the underlying litigation. Pending appeal
of the judgment, the parties settled; and the appeals were
voluntarily dismissed pursuant to the settlement agreement.
However, the agreement expressly provided it “did not modify
‘the final termination of the Action entered in favor of [the
malicious prosecution plaintiff] for purposes of pursuing claims
against [the malicious prosecution defendants], or otherwise
prevent [the malicious prosecution plaintiff] from pursuing any
claims against [the malicious prosecution defendants]’ based on
the underlying judgment.” (Id. at pp. 738-739.) The Siebel Court
held the settlement constituted a favorable termination
“[b]ecause [the malicious prosecution plaintiff] received a
favorable judgment in the underlying proceeding and settled
without giving up any portion of the judgment in his favor.” (Id.
at p. 743.) The Court expressly limited its holding “to a
postjudgment settlement by the parties that does not
fundamentally change the parties’ relationship established by the
underlying judgment on the merits” and left undisturbed cases
holding the element of favorable termination was not established
where dismissal of the underlying action was pursuant to a
settlement in the absence of such judgment. (Id. at p. 744.)
Here, there was no judgment on the merits of the underlying
employment action.




                               17
                        DISPOSITION
      The order granting the section 425.16 special motions to
strike and the judgment are affirmed. Pakravan and Masserat
are to recover their costs on appeal.




                                    PERLUSS, P. J.

     We concur:



           SEGAL, J.



           FEUER, J.




                               18
