Litinsky v. Kaplan ( 2019 )


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  • Filed 10/4/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    MINA LITINSKY,                              B293968
    Plaintiff and Appellant,            (Los Angeles County
    Super. Ct. No. BC713781)
    v.
    JAYNE KAPLAN,
    Defendant and Respondent.
    APPEAL from an order of the Superior Court of Los
    Angeles County. Joseph Kalin, Judge. (Retired judge of the L.A.
    Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of
    the Cal. Const.) Affirmed.
    Law Office of Leslie S. McAfee and Leslie S. McAfee for
    Plaintiff and Appellant.
    Nemecek & Cole, Michael McCarthy, Mark Schaeffer and
    Vikram Sohal for Defendant and Respondent.
    _________________________________
    Mina Litinsky appeals from an order striking her claims
    against respondent Jayne Kaplan under Code of Civil Procedure
    section 425.16 (the anti-SLAPP statute).1
    Litinsky was the defendant in a prior lawsuit in which
    Kaplan, an attorney, represented the plaintiff. Following the
    dismissal of that lawsuit, Litinsky sued Kaplan for malicious
    prosecution and intentional infliction of emotional distress, along
    with similar claims against Kaplan’s former client and others.2
    The trial court granted Kaplan’s motion to strike both of
    the claims against her. Because the claims arose from Kaplan’s
    prosecution of the prior lawsuit, they met the first requirement
    under the anti-SLAPP statute to show protected free speech or
    petitioning activity. Litinsky was therefore required to show a
    likelihood that she would succeed on her claims, which she failed
    to do. Her claim for intentional infliction of emotional distress
    was precluded by the litigation privilege (Civ. Code, § 47). And
    her claim for malicious prosecution could not succeed because the
    evidence showed that Kaplan had probable cause to prosecute the
    prior lawsuit against Litinsky on behalf of Kaplan’s client.
    We affirm. The only issue that Litinsky raises in this
    appeal is the viability of her malicious prosecution claim. We
    agree with the trial court that Kaplan had sufficient evidence of
    the potential merit of her client’s claims to meet the probable
    1Subsequent undesignated statutory references are to the
    Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
    lawsuit against public participation.” (Briggs v. Eden Council for
    Hope & Opportunity (1999) 
    19 Cal. 4th 1106
    , 1109, fn. 1.)
    2Kaplan brought the anti-SLAPP motion at issue in this
    appeal on her own behalf. She is the only respondent on appeal.
    2
    cause requirement. The evidence came primarily from her client.
    While that evidence was contradicted by testimony from the
    opposing party and some third parties, it was not indisputably
    false. Faced with the choice of accepting the version of events
    presented by her client or the version described by the opposing
    party, Kaplan appropriately opted to continue advocating for her
    client. She could not be liable for malicious prosecution for
    making that choice so long as the client’s claims were arguably
    meritorious.
    BACKGROUND
    1.     The Prior Lawsuit
    In December 2016, Kaplan filed an action in Los Angeles
    Superior Court for fraud against Litinsky on behalf of Vadim
    Harutyunov. The complaint alleged that in 2004 Litinsky had
    promised to pay Harutyunov a 10 percent commission on
    purchases of art by persons whom Harutyunov referred to
    Litinsky’s art gallery in Denver, Colorado. Harutyunov had
    allegedly referred a customer named Armen Petrosyan to
    Litinsky’s gallery. Harutyunov claimed that he first learned in
    2015 that Petrosyan had purchased art from Litinsky on which a
    commission was owed.
    Before filing the action, Kaplan was given and reviewed a
    document purporting to be a written agreement between
    Harutyunov and Litinsky memorializing the 10 percent
    commission arrangement (the Commission Agreement). The
    Commission Agreement contained the signatures of Litinsky and
    Harutyunov, as well as a signature by an attorney, Thomas E.
    Kent, approving the agreement “as to form.” The Commission
    Agreement stated that it was for the period from June 28, 2004,
    to June 28, 2019, and renewable thereafter unless terminated.
    3
    The copy of the agreement that Kaplan was given contained a
    header indicating that it had been faxed on June 28, 2004, from a
    telephone number with a Colorado area code.
    After Litinsky was served with the complaint, she filed a
    motion to quash on the grounds of forum non conveniens and lack
    of personal jurisdiction. Kaplan filed an opposition to the motion
    supported by declarations from both Harutyunov and Petrosyan.
    In his declaration, Harutyunov confirmed that Litinsky had
    entered into an agreement with him to pay “a fee for introducing
    purchasers” and testified that the agreement had been
    memorialized in a written contract drafted by Harutyunov’s
    lawyer. Petrosyan testified that he participated in a three-way
    telephone conversation with Litinsky and Harutyunov in which
    Harutyunov introduced him as a prospective purchaser.
    In reply, Litinsky filed a declaration denying that she had
    signed the Commission Agreement and denying that she had ever
    met or even heard of Harutyunov.
    The court denied Litinsky’s motion to quash, finding
    “sufficient minimum contacts supporting specific jurisdiction.”
    The court found “substantial evidence that Litinsky made
    numerous shipments to California to an individual who states
    that [Harutyunov] introduced him to Litinsky.” The court
    concluded that “[t]he evidence indicates Litinsky purposefully
    availed herself of the benefits of the forum by repeatedly doing
    business with California residents, shipping art to California, as
    well as discussions with California residents relating to the
    transactions at issue in this action.”
    The action proceeded to discovery. In discovery responses,
    Litinsky again denied entering into the Commission Agreement.
    She stated that her gallery did not own a fax machine at the time
    4
    that the Commission Agreement was purportedly faxed from the
    Colorado number in the header of the agreement. She explained
    that the identified number was actually the telephone number for
    her gallery rather than for a fax machine.
    In stark contrast, Harutyunov served verified discovery
    responses confirming that he had entered into the Commission
    Agreement with Litinsky. At his deposition, Harutyunov
    testified that Kent was his attorney; Kent had drafted the
    Commission Agreement; and Kent sent the agreement to
    Litinsky, who signed it and returned it.
    Trial in the prior lawsuit was scheduled for February 26,
    2018. Shortly before trial Kaplan filed an ex parte application to
    continue the trial, which the court granted, on the ground that
    Harutyunov had recently undergone heart surgery. Trial was
    rescheduled for July 2, 2018.
    Shortly before the rescheduled trial date, Kaplan filed
    another ex parte request for a continuance on the ground that
    Harutyunov was still too ill to participate. The court denied the
    request. Following the denial, on the date set for trial, Kaplan
    filed a request for dismissal.
    2.     Kaplan’s Anti-SLAPP Motion
    Litinsky filed this action on July 13, 2018, against Kaplan;
    Harutyunov and his wife; and Petrosyan and his wife. The
    complaint asserted claims against Kaplan for malicious
    prosecution and intentional infliction of emotional distress.
    Kaplan filed a motion to strike the two claims against her
    under section 425.16. The motion was based on the grounds that:
    (1) Litinsky’s claims against her arose from a prior lawsuit, which
    is petitioning activity that is protected under section 425.16,
    subdivision (e); and (2) Litinsky could not establish a probability
    5
    of success on her claims. Kaplan argued that Litinsky’s claim for
    intentional infliction of emotional distress was barred by the
    litigation privilege under Civil Code section 47. With respect to
    Litinsky’s malicious prosecution claim, Kaplan argued that:
    (1) Harutyunov’s voluntary dismissal of the prior action was not a
    favorable termination on the merits; (2) Kaplan had probable
    cause to file and prosecute the prior action; and (3) Kaplan did
    not act with malice.
    A.    Kaplan’s evidence
    In her declaration in support of her motion, Kaplan
    described the facts on which she relied for probable cause to
    prosecute the action against Litinsky. She explained that she
    could not reveal her privileged communications with Harutyunov.
    However, she pointed out that: (1) Harutyunov had testified at
    his deposition that the Commission Agreement was genuine;
    (2) Harutyunov and Petrosyan had provided declarations in
    response to Litinsky’s motion to quash, attesting to the validity of
    the Commission Agreement with Litinsky; (3) the trial court had
    denied Litinsky’s motion in an order that seemed to give credence
    to the Harutyunov and Petrosyan declarations; (4) Petrosyan had
    provided copies of invoices from Litinsky’s gallery that contained
    a fax header with the same number as the fax line on the
    Commission Agreement; and (5) Kaplan had retained an expert
    who was prepared to testify that the fax header on the
    Commission Agreement was genuine.
    Kaplan also supported her motion with exhibits, which
    included: (1) the filings from the motion to quash; (2) discovery
    responses; (3) the invoices from Petrosyan bearing the same fax
    header as the Commission Agreement; (4) her expert’s
    curriculum vitae; and (5) correspondence with Litinsky’s counsel.
    6
    B.      Litinsky’s evidence
    In support of her opposition, Litinsky provided her own
    declaration, denying that she had ever heard of Harutyunov prior
    to the litigation. She testified that she had sold art works to
    Petrosyan, who had then resold them to another person (Raskin)
    at very high, above market prices. Raskin successfully sued
    Petrosyan for fraud, and Litinsky was a witness in that litigation.
    Petrosyan was upset and threatened her.
    Although Litinsky had not signed the Commission
    Agreement, she recognized the signatures on the agreement as
    her own. She examined invoices that she had prepared for
    Petrosyan and concluded that her signature on those invoices
    were identical to her signature on the Commission Agreement.
    She denied that her gallery owned a fax machine in 2004 when
    the Commission Agreement was signed.
    Litinsky’s counsel, Leslie McAfee, also submitted a
    declaration, describing information that he had provided to
    Kaplan to show that the Commission Agreement was fraudulent.
    In his first conversation with Kaplan, McAfee advised Kaplan
    that Litinsky had been a witness in the fraud lawsuit against
    Petrosyan, and that Harutyunov was a “cousin or close family
    member” of Petrosyan.3 During discovery, McAfee also advised
    3  In an apparent contradiction, McAfee also testified that,
    at the time of this conversation, he was “unaware of the familial
    relationship” between Harutyunov and Petrosyan. In another
    apparent contradiction, McAfee stated in his declaration that,
    during this initial conversation with Kaplan, Kaplan “denied any
    knowledge of Armen Petrosyan” but also said that her client had
    “ ‘just discovered’ the sales of art to Armen [Petrosyan] (and his
    7
    Kaplan of three witnesses who confirmed that Litinsky’s gallery
    did not own a fax machine in 2004. One of those witnesses was
    deposed. Although Kaplan did not attend the deposition, McAfee
    sent Kaplan a copy of the transcript.
    McAfee retained a forensic document specialist, Frank
    Hicks, who was prepared to offer the opinion that Litinsky’s
    signatures on the Commission Agreement were identical to her
    signatures on invoices to Petrosyan and had apparently been
    copied from those invoices. Hicks also was prepared to testify
    that the fax header on the Commission Agreement was crooked
    and misaligned from page to page, showing that it had been
    copied from another source. McAfee testified that he “conveyed to
    Ms. Kaplan all of Mr. Hicks’ expert opinions and the bases for his
    opinions.”
    McAfee also hired an investigator who located Kent, the
    lawyer who had purportedly drafted the Commission Agreement.
    Kent told McAfee that he did not draft or sign the agreement.
    Kent provided McAfee with a declaration attesting to those facts.
    The declaration stated that he first met Harutyunov in 2014 or
    2015, ten years after the agreement was signed, when Kent was
    working as a paralegal for another attorney.4 McAfee testified
    wife, Anna) in 2015.” The contradictions are not material to this
    appeal. Consistent with the rule that a court does not resolve
    factual conflicts in ruling on an anti-SLAPP motion, we accept
    McAfee’s testimony that at some point he advised Kaplan of the
    theory that Harutyunov fabricated his claim against Litinsky in
    retaliation for Litinsky’s prior testimony against Petrosyan.
    4 Litinsky filed Kent’s declaration in support of her
    opposition to Kaplan’s anti-SLAPP motion.
    8
    that he “made the content of Kent’s declaration known to Kaplan
    around the first of 2018.”
    3.     The Trial Court’s Ruling
    The trial court found that Litinsky’s claims against Kaplan
    arose from protected petitioning activity under section 425.16,
    subdivision (e). With respect to Litinsky’s showing on the merits,
    the court concluded that Litinsky’s claim for intentional infliction
    of emotional distress was barred by the litigation privilege.5
    With respect to the malicious prosecution claim, the court
    found that there was sufficient evidence to provide probable
    cause for maintaining the prior action against Litinsky. The
    court concluded that, “[w]hile perhaps [Kaplan’s] evidence was
    weak, there was not a total lack of evidence supporting the
    authenticity of the [C]omission [A]greement. In other words, the
    Court cannot say that any reasonable attorney would agree the
    action lacked merit.” The court therefore granted the anti-
    SLAPP motion and ordered the claims against Kaplan struck.
    DISCUSSION
    1.     The Anti-SLAPP Procedure
    Section 425.16 provides for a “special motion to strike”
    when a plaintiff asserts claims 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.”
    (§ 425.16, subd. (b)(1).) Such claims must be struck “unless the
    court determines that the plaintiff has established that there is a
    probability that the plaintiff will prevail on the claim.” (Ibid.)
    5   Litinsky does not challenge either of these rulings on
    appeal.
    9
    Thus, ruling on an anti-SLAPP motion involves a two-step
    procedure. First, the “moving defendant bears the burden of
    identifying all allegations of protected activity, and the claims for
    relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
    396 (Baral).) At this stage, the defendant must make a
    “threshold showing” that the challenged claims arise from
    protected activity. (Rusheen v. Cohen (2006) 
    37 Cal. 4th 1048
    ,
    1056.)
    Second, if the defendant makes such a showing, the
    “burden shifts to the plaintiff to demonstrate that each
    challenged claim based on protected activity is legally sufficient
    and factually substantiated.” 
    (Baral, supra
    , 1 Cal.5th at p. 396.)
    Without resolving evidentiary conflicts, the court determines
    “whether the plaintiff’s showing, if accepted by the trier of fact,
    would be sufficient to sustain a favorable judgment.” (Ibid.) The
    plaintiff’s showing must be based upon admissible evidence.
    (HMS Capital, Inc. v. Lawyers Title Co. (2004) 
    118 Cal. App. 4th 204
    , 212.) The court “considers the pleadings and evidentiary
    submissions of both the plaintiff and the defendant (§ 425.16,
    subd. (b)(2)); though the court does not weigh the credibility or
    comparative probative strength of competing evidence, it should
    grant the 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.” (Wilson v. Parker, Covert &
    Chidester (2002) 
    28 Cal. 4th 811
    , 821 (Wilson).) Thus, the second
    step of the anti-SLAPP process “establishes a procedure where
    the trial court evaluates the merits of the lawsuit using a
    summary-judgment-like procedure at an early stage of the
    litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 
    35 Cal. 4th 180
    , 192.)
    10
    An appellate court applies a de novo standard of review to
    the grant or denial of an anti-SLAPP motion. (Park v. Board of
    Trustees of California State University (2017) 2 Cal.5th 1057,
    1067.)
    Litinsky’s malicious prosecution claim arises from the prior
    lawsuit that Kaplan prosecuted against her. She does not
    dispute that this prior lawsuit amounted to petitioning activity
    that is protected under section 425.16, subdivision (e). Thus, on
    this appeal we consider only the second step of the anti-SLAPP
    procedure as applied to Litinsky’s claim.
    2.     Malicious Prosecution and the Attorney-client
    Relationship
    To establish a cause of action for malicious prosecution, “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 (Sheldon Appel), quoting Bertero
    v. National General Corp. (1974) 
    13 Cal. 3d 43
    , 50.) Our Supreme
    Court has explained that “[a]lthough the malicious prosecution
    tort has ancient roots, courts have long recognized that 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, and, as a consequence, the tort has
    traditionally been regarded as a disfavored cause of action.”
    (Sheldon Appel, at p. 872.)
    In Sheldon Appel, the court adhered to these “traditional
    limitations on malicious prosecution recovery” in defining the
    probable cause element of the tort. (Sheldon 
    Appel, supra
    , 47
    11
    Cal.3d at pp. 873–874.) The court explained that analyzing
    whether probable cause existed for a prior lawsuit “calls on the
    trial court to make an objective determination of the
    ‘reasonableness’ of the defendant’s conduct, i.e., to determine
    whether, on the basis of the facts known to the defendant, the
    institution of the prior action was legally tenable.” (Sheldon
    
    Appel, supra
    , 47 Cal.3d at p. 878.) Whether a claim was legally
    tenable is determined by applying the same standard that
    governs whether an appeal is frivolous: The question is “whether
    any reasonable attorney would have thought the claim tenable.”
    (Id. at pp. 885–886, citing In re Marriage of Flaherty (1982) 
    31 Cal. 3d 637
    , 650.) The court concluded that this standard would
    best reflect “the important public policy of avoiding the chilling of
    novel or debatable legal claims.” (Sheldon Appel, at p. 885.)
    Additional policies come into play when a malicious
    prosecution action is brought against a lawyer who prosecuted a
    prior action. Unless a lawyer discovers that his or her client has
    provided false information, the lawyer is generally entitled to rely
    on information from his or her client in filing or prosecuting a
    lawsuit. (Daniels v. Robbins (2010) 
    182 Cal. App. 4th 204
    , 223
    (Daniels).) That reliance is grounded on the attorney’s duty to
    act as an advocate on behalf of his or her client. (See Marijanovic
    v. Gray, York & Duffy (2006) 
    137 Cal. App. 4th 1262
    , 1272, fn. 5
    (Marijanovic) [noting that “it 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”].)
    Whether there was probable cause for a prior lawsuit is
    ultimately a question of law for the court to decide. (Sheldon
    
    Appel, supra
    , 47 Cal.3d at p. 881.) Where there is a dispute
    12
    about the defendant’s knowledge and “the existence of probable
    cause turns on resolution of that dispute,” a jury must resolve the
    “threshold question of the defendant’s factual knowledge or
    belief.” (Ibid.) However, “when the state of the defendant’s
    factual knowledge is resolved or undisputed, it is the court which
    decides whether such facts constitute probable cause or not.”
    (Ibid.)
    3.     Litinsky Failed to Show that Kaplan Lacked
    Probable Cause to Prosecute Her Client’s Claim
    A.     The trial court correctly analyzed the
    evidence of probable cause under the rules
    governing the second step of the anti-
    SLAPP procedure
    Litinsky makes several arguments attacking the process
    the trial court used to evaluate the evidence of probable cause.
    Our review is de novo, and we therefore need not defer to the
    trial court’s analysis. We nevertheless address Litinsky’s
    arguments to dispel several procedural misconceptions on which
    they are based.
    Litinsky first argues that it is a question of fact whether
    the evidence of fraud that she submitted in support of her
    opposition to Kaplan’s anti-SLAPP motion established
    “unequivocal evidence for Kaplan to doubt the credibility of her
    client.” Litinsky claims that the “very existence of this factual
    assertion in the opposition to the anti-SLAPP motion was a
    sufficient showing . . . to defeat the motion.”
    This argument is wrong for two reasons. First, it
    incorrectly assumes that whether the evidence was “unequivocal”
    in showing that Kaplan’s client was lying was an issue for the
    jury. Unequivocal evidence of fraud is another way of saying that
    13
    no reasonable attorney would have believed that Harutyunov had
    a legitimate claim. As mentioned, the existence of probable cause
    is an issue of law that the court decides. The trial court could not
    resolve disputed issues of fact in ruling on Kaplan’s anti-SLAPP
    motion, but it could, and properly did, decide issues of law based
    upon the facts presented to it, while accepting as true the
    admissible evidence that Litinsky presented for purposes of the
    motion. 
    (Wilson, supra
    , 28 Cal.4th at p. 821; Overstock.com, Inc.
    v. Gradient Analytics, Inc. (2007) 
    151 Cal. App. 4th 688
    , 699–700.)
    Second, the argument assumes that the evidence of fraud
    was “unequivocal” if the only evidence contradicting it was the
    testimony of Kaplan’s client. That is incorrect.
    As discussed above, a lawyer is generally entitled to rely on
    information from his or her client. (Morrison v. Rudolph (2002)
    
    103 Cal. App. 4th 506
    , 512–513 (Morrison).) A lawyer may not do
    so if he or she knows the client is not telling the truth, but a
    lawyer is not charged with such knowledge simply because an
    opposing party offers evidence of a different version of events. As
    discussed below, Kaplan had evidence suggesting that Litinsky
    might be lying in denying that she entered into the Commission
    Agreement. While not overwhelming, that evidence was
    sufficient to create a possibility of success.
    Faced with competing versions of the facts offered by
    Litinsky and Harutyunov, Kaplan could accept Harutyunov’s
    version, even if she thought Litinsky was more likely to prevail.
    As our Supreme Court has explained, “A litigant or attorney who
    possesses competent evidence to substantiate a legally cognizable
    claim for relief does not act tortuously by bringing the claim, even
    if also aware of evidence that will weigh against the claim.
    Plaintiffs and their attorneys are not required, on penalty of tort
    14
    liability, to attempt to predict how a trier of fact will weigh the
    competing evidence, or to abandon their claim if they think it
    likely the evidence will ultimately weigh against them. They
    have the right to bring a claim they think unlikely to succeed, so
    long as it is arguably meritorious.” 
    (Wilson, supra
    , 28 Cal.4th at
    p. 822.)
    Litinsky also suggests that the trial court erred by even
    considering the evidence Kaplan submitted. Litinsky argues that
    “the facts set forth by [Litinsky] in opposition to the anti-SLAPP
    necessarily were at issue and NOT the claimed facts known by
    Kaplan. If the facts asserted by [Litinsky] in opposition to the
    anti-SLAPP would, if credited, support her claim that the
    continued prosecution lacked probable cause, then [Litinsky] had
    met her burden in defeating the anti-SLAPP motion.”
    Litinsky is correct that factual conflicts between her
    evidence and Kaplan’s evidence must be resolved in Litinsky’s
    favor. But the trial court was not required to disregard Kaplan’s
    evidence where no such conflict existed. To the contrary: In
    ruling on an anti-SLAPP motion, a trial court is to consider the
    evidentiary submissions “of both the plaintiff and the defendant.”
    
    (Wilson, supra
    , 28 Cal.4th at p. 821; see § 425.16, subd. (b)(2)
    [“the court shall consider the pleadings, and supporting and
    opposing affidavits”].) Thus, a court may accept uncontradicted
    factual assertions in a moving party’s declarations. (Cf. Trujillo
    v. First American Registry, Inc. (2007) 
    157 Cal. App. 4th 628
    , 636
    [a moving party’s uncontradicted declarations, even if self-
    serving, may provide the basis for summary judgment].)
    For example, for purposes of Kaplan’s anti-SLAPP motion
    we must accept Litinsky’s testimony that she did not sign the
    Commission Agreement and she did not fax a copy of the
    15
    agreement to Kent or Harutyunov. However, the trial court could
    also accept Kaplan’s uncontradicted testimony that she had
    invoices from Litinsky’s gallery that contained the same fax
    number as the copy of the Commission Agreement, and that
    Harutyunov consistently maintained that the Commission
    Agreement was genuine. Thus, for purposes of the anti-SLAPP
    motion, the trial court could both accept Litinsky’s claim that the
    Commission Agreement was actually fraudulent and also accept
    Kaplan’s testimony concerning the facts she knew indicating that
    the agreement might be genuine.
    B.    The evidence available to Kaplan showed
    that her client’s claim was arguably
    meritorious
    Kaplan provided uncontradicted evidence that:
    (1) Harutyunov testified in a declaration submitted in opposition
    to Litinsky’s motion to quash service of process that he had
    entered into the Commission Agreement with Litinsky;
    (2) Harutyunov similarly stated under oath in discovery
    responses and during his deposition that he had entered into the
    Commission Agreement with Litinsky and had referred
    Petrosyan to her gallery; (3) Petrosyan provided Kaplan with
    invoices from Litinsky’s gallery concerning his purchases;6
    (4) some of those invoices showed that they were faxed from the
    same number that appeared on a fax line on the Commission
    Agreement; (5) Petrosyan submitted a declaration in opposition
    to Litinsky’s motion to quash stating that Harutyunov introduced
    6
    In fact, there is no dispute that Petrosyan actually did
    make purchases from Litinsky’s gallery.
    16
    him to Litinsky during a three-way telephone conversation with
    Litinsky before he purchased art from her; and (6) Kaplan had
    retained an expert witness who was prepared to testify that the
    fax headers on the Commission Agreement were genuine.7
    Although hardly overwhelming in light of the evidence
    supporting Litinsky’s version of events, this evidence was at least
    sufficient to show that a jury might ultimately believe
    Harutyunov rather than Litinsky.
    Citing Arcaro v. Silva & Silva Enterprises Corp. (1999) 
    77 Cal. App. 4th 152
    (Arcaro), Litinsky argues that Kaplan lacked
    probable cause to prosecute Harutyunov’s lawsuit against her
    because Litinsky provided Kaplan with “uncontroverted,
    verifiable evidence” that the signatures of Litinsky and Kent on
    the Commission Agreement were fraudulent. In Arcaro, an
    accountant’s former client forged the accountant’s signature and
    used the accountant’s social security number to obtain a credit
    line with a hardware store. (Id. at p. 154.) When the store’s
    collection agency (Hammer) attempted to collect from the
    accountant on an outstanding debt, the accountant, Arcaro, told
    Hammer that the signature on the account was not his and
    identified the person who likely had forged it. After Hammer
    filed suit against Arcaro, Arcaro’s attorney offered handwriting
    exemplars to prove the fraud. The lawsuit was later dismissed,
    7 Litinsky asserts that Kaplan’s expert was not qualified to
    offer that opinion. However, the expert’s curriculum vitae shows
    research experience in the history of fax machines and
    “fraudulent and frothy firms in emerging technologies.” Litinsky
    cites no evidence supporting the conclusion that the expert would
    have been precluded from offering an opinion at trial.
    17
    and Arcaro sued successfully for malicious prosecution. (Id. at
    pp. 155–156.)
    On appeal, the court affirmed the trial court’s finding that
    Hammer lacked probable cause to file its action against Arcaro.
    The court noted that Arcaro had denied that he signed the credit
    agreement and also provided the name of the person who likely
    had forged his signature along with an explanation for how that
    person had acquired Arcaro’s personal information. 
    (Arcaro, supra
    , 77 Cal.App.4th at p. 157.) Arcaro further provided
    exemplars of his signature that “no reasonable person” could
    conclude resembled the signature on the credit application.
    (Ibid.) The court concluded that Hammer lacked probable cause
    to file the action against Arcaro because it had no evidence that
    would permit it to prevail on its burden to authenticate Arcaro’s
    signature. (Id. at pp. 157–159.)
    Unlike in Arcaro, here Kaplan did have evidence
    supporting her client’s claim. As discussed above, she had
    testimony from both Harutyunov and Petrosyan supporting the
    claim. She also had the opinion of an expert witness and
    documentary evidence supporting the conclusion that the fax line
    on the Commission Agreement was genuine. And, unlike the
    signature at issue in Arcaro, the signatures of Litinsky and Kent
    on the Commission Agreement were not forgeries on their face;
    Litinsky’s claim was that the signatures were real but were
    copied and pasted from another source.8
    8 Indeed, the basis for Litinsky’s expert opinion that her
    signatures were fraudulent was apparently that they were too
    similar to the genuine signatures from which they were allegedly
    copied.
    18
    Kaplan was not obligated to drop her client’s claim simply
    because her litigation opponent claimed that Kaplan’s client was
    lying. Indeed, to do so might have been inconsistent with her
    professional obligations. (See 
    Marijanovic, supra
    , 137
    Cal.App.4th at p. 1272, fn. 5.)
    Litinsky cites Kent’s declaration as confirmation from a
    third party that the Commission Agreement was fraudulent. For
    purposes of the anti-SLAPP motion, we credit McAfee’s testimony
    that he discussed the contents of Kent’s declaration with Kaplan
    in early 2018.
    However, Kaplan testified that she did not believe McAfee’s
    representations about the declaration. Kaplan was not required
    to simply accept McAfee’s description of the declaration. Her
    reticence to do so was supported by McAfee’s refusal to provide
    her with a copy of the declaration. Litinsky acknowledges in her
    brief that she did not provide that declaration to Kaplan until a
    week before the July 2, 2018 trial. Kaplan submitted evidence of
    e-mail correspondence in which McAffee told Kaplan that she
    should “[d]o your own homework—both for Mr. Ken’t’s [sic] phone
    number and for any other documents that are work-product
    protected. . . . I don’t want this resolved; I want to go to trial so I
    can get a perjury finding against your client and a judgment
    against same that I can proceed with. . . . I felt it was professional
    courtesy to continue to warn you about your client—you have
    chosen to ignore the same. I am not required to ‘show my hand’
    before trial just to prove to you what due diligence conducted by
    you would show you.” Moreover, Kaplan testified that, after her
    conversation with McAfee about the Kent declaration, she located
    Kent’s signature on a bankruptcy filing (which she also filed as
    19
    an exhibit to her motion), and that signature appeared to match
    Kent’s signature on the Commission Agreement.
    Critically, unlike the collection agency named as a
    defendant in Arcaro, Kaplan is a lawyer who was obligated to
    represent her client. The same court that decided Arcaro
    subsequently observed that the collection agency’s attorneys in
    that case were not defendants in the malicious prosecution
    action. The court explained that “Arcaro contains no hint that
    the attorneys lacked probable cause to file suit based on the facts
    known to them. To the contrary, Arcaro suggests the attorneys
    were entitled to rely on the genuineness of Arcaro’s signature on
    the guarantee and had no duty to investigate before filing suit.”
    (Swat-Fame, Inc. v. Goldstein (2002) 
    101 Cal. App. 4th 613
    , 627
    (Swat-Fame), citing 
    Arcaro, supra
    , 77 Cal.App.4th at pp. 158–
    159.)9
    Other cases similarly hold that an attorney may rely upon
    information supporting a client’s claim unless the information is
    indisputably false. (See 
    Morrison, supra
    , 103 Cal.App.4th at
    p. 513 [lawyers could reasonably rely on client’s “account of
    misrepresentation, reliance, and ensuing damages”]; Marijanovic,
    9 In Swat-Fame, the court held that the plaintiff’s attorneys
    were not put on notice of any “specific fatal flaw” in their client’s
    case based on a “boilerplate denial of the facts” by opposing
    counsel, and they therefore had probable cause to file a lawsuit.
    
    (Swat-Fame, supra
    , 101 Cal.App.4th at p. 627.) The court also
    held that, if probable cause exists at the inception of a lawsuit, a
    lawyer cannot be liable for malicious prosecution for continuing
    to prosecute the lawsuit. (Id. at pp. 627–629.) That portion of
    the court’s holding was subsequently disapproved in Zamos v.
    Stroud (2004) 
    32 Cal. 4th 958
    , 
    973. 20 supra
    , 137 Cal.App.4th at pp. 1271–1272 [probable cause to
    pursue indemnification lawsuit against a subcontractor was not
    negated by the subcontractor’s “bald assertion” that the scope of
    his work was limited]; Antounian v. Louis Vuitton Malletier
    (2010) 
    189 Cal. App. 4th 438
    , 453–454 [discovery of mistakes in
    investigative reports did not negate probable cause to continue
    the prosecution of a counterfeiting lawsuit where other evidence
    of counterfeiting remained]; compare 
    Daniels, supra
    , 182
    Cal.App.4th at p. 224 [factual dispute existed on the issue of
    probable cause where it was unclear whether the client
    personally witnessed alleged defamation and there was an
    “absence of any witnesses, documents, or other evidence” in
    support of the client’s allegations].)
    Finally, Litinsky argues that Kaplan lacked probable cause
    to prosecute Harutyunov’s claim because Kaplan did not
    adequately investigate the facts underlying the claim after
    Litinsky denied entering into the Commission Agreement. That
    argument is inconsistent with the rule that probable cause is
    analyzed based on the facts known to the defendant, not on the
    adequacy of an attorney’s investigation or research. In Sheldon
    Appel, our Supreme Court explained that once a trial court finds
    that the filing of a prior action was objectively reasonable based
    upon the facts known to the malicious prosecution defendant,
    “the court has necessarily determined that the malicious
    prosecution plaintiff was not subjected to an unjustified lawsuit.
    When the court has made such a determination, there is no
    persuasive reason to allow the plaintiff to go forward with its tort
    action even if it can show that its adversary’s attorney did not
    perform as thorough an investigation or as complete a legal
    research job as a reasonable attorney may have conducted.”
    21
    (Sheldon 
    Appel, supra
    , 47 Cal.3d at p. 883; see Ecker v. Raging
    Waters Group, Inc. (2001) 
    87 Cal. App. 4th 1320
    , 1331 [“Whether
    the malicious prosecution defendant conducted a sufficient or
    adequate investigation is legally irrelevant to the probable cause
    determination”].)10
    Based upon the facts she knew, Kaplan had probable cause
    to prosecute Harutyunov’s lawsuit against Litinsky. Litinsky
    10  In Arcaro, the court stated that “when a party is put on
    notice a fundamental element of its case is disputed, it should not
    proceed without evidence sufficient to support a favorable
    judgment on that element or at least information affording an
    inference such evidence can be obtained.” 
    (Arcaro, supra
    , 77
    Cal.App.4th at pp. 158–159.) The statement must be viewed in
    light of the court’s holding. The critical element of the holding in
    Arcaro was that, in light of the information that Arcaro provided
    about the fraudulent nature of his purported signature on the
    credit application, without further investigation the plaintiff
    collection agency did not have sufficient evidence that could
    support a judgment in its favor. Thus, in Arcaro the plaintiff
    simply did not have probable cause to file an action based on the
    information that it already knew. As discussed above, that is not
    the case here. We do not understand Arcaro to suggest that
    probable cause may be absent if a plaintiff’s lawyer does not
    perform an adequate investigation whenever an opposing party
    disputes some element of the plaintiff’s claim. Such a reading
    would be inconsistent with Sheldon Appel. (See Sheldon 
    Appel, supra
    , 47 Cal.3d at p. 883.) Our interpretation is also consistent
    with the court’s subsequent explanation in Swat-Fame that
    Arcaro presented “unusual circumstances,” and that “[n]ormally,
    the adequacy of a prefiling investigation is not relevant to the
    determination of probable cause.” 
    (Swat-Fame, supra
    , 101
    Cal.App.4th at p. 627.)
    22
    therefore failed to meet her burden in opposing Kaplan’s anti-
    SLAPP motion to show a probability of success on her malicious
    prosecution claim.11
    4.     The Trial Court’s Evidentiary Rulings Do Not
    Provide a Ground for Reversal
    Litinsky argues that the trial court erred in overruling all
    her objections to Kaplan’s declaration. We review a trial court’s
    decision to admit or exclude evidence under an abuse of
    discretion standard. (Morrow v. Los Angeles Unified School Dist.
    (2007) 
    149 Cal. App. 4th 1424
    , 1444.) “ ‘The burden is on the party
    complaining to establish an abuse of discretion, and unless a
    clear case of abuse is shown and unless there has been a
    miscarriage of justice a reviewing court will not substitute its
    opinion and thereby divest the trial court of its discretionary
    power.’ ” (Denham v. Superior Court (1970) 
    2 Cal. 3d 557
    , 566,
    quoting Loomis v. Loomis (1960) 
    181 Cal. App. 2d 345
    , 348–349;
    see Evid. Code, § 353.)
    A miscarriage of justice from the alleged erroneous
    admission of evidence is found only when “the appellate court,
    after examining all the evidence, is of the opinion that ‘ “it is
    reasonably probable that a result more favorable to the appealing
    party would have been reached in the absence of the error.” ’ ”
    (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455, quoting
    Cassim v. Allstate Ins. Co. (2004) 
    33 Cal. 4th 780
    , 800.)
    Litinsky’s brief includes only a lengthy list of her objections
    to Kaplan’s declaration and the claimed reasons why the
    11In light of our decision on this issue, we need not
    consider Kaplan’s additional argument that Litinsky failed to
    provide sufficient evidence of malice.
    23
    identified testimony was inadmissible. Litinsky does not provide
    any argument or citations showing that any particular
    evidentiary ruling was prejudicial. Other than the conclusory
    statement that the trial court “clearly weighed and applied”
    Kaplan’s declaration in its ruling, Litinsky does not provide any
    explanation of why the trial court’s ruling would likely have been
    different in the absence of particular testimony that she claims
    was inadmissible. She has therefore failed to identify any
    grounds for reversal. (See Evid. Code, § 353.)
    Nor do we see any ground to conclude that the trial court
    abused its discretion in overruling Litinsky’s objections. Many of
    Litinsky’s arguments in support of her objections on appeal
    simply attack the credibility of Kaplan’s statements. Such
    arguments go only to the weight of Kaplan’s testimony, not its
    admissibility.
    Litinsky’s relevance objections to testimony about Kaplan’s
    state of mind were also not well taken. Kaplan’s knowledge of
    particular facts was relevant to the element of probable cause,
    and her subjective belief in the merits of Harutyunov’s claim was
    relevant to the element of malice. (See Sheldon 
    Appel, supra
    , 47
    Cal.3d at pp. 880–881.)
    The trial court also acted within its discretion in rejecting
    Litinsky’s objections that particular testimony lacked foundation
    or offered a legal conclusion. Some of Kaplan’s statements were
    conclusory (e.g., “I had probable cause to file and maintain the
    Underlying Action on behalf of [Harutyunov]”). However, such
    statements were in the nature of a summary or introduction to a
    more specific factual discussion. Moreover, “[t]estimony in the
    form of an opinion that is otherwise admissible is not
    objectionable because it embraces the ultimate issue to be
    24
    decided by the trier of fact.” (Evid. Code, § 805.) We see no basis
    for reversal based upon the trial court’s evidentiary rulings.
    DISPOSITION
    The trial court’s order striking Litinsky’s claims against
    Kaplan is affirmed. Kaplan is entitled to her costs on appeal.
    CERTIFIED FOR PUBLICATION.
    LUI, P. J.
    We concur:
    ASHMANN-GERST, J.
    CHAVEZ, J.
    25