Long v. Safi CA2/1 ( 2022 )

Filed 12/20/22 Long v. Safi CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RICHARD LONG B312240
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV29401)
v.
SID M. SAFI,
Defendant and Appellant.
Appeal from an order of the Superior Court of Los Angeles
County, Malcolm H. Mackey, Judge. Reversed.
Sid M. Safi, in pro. per., for Defendant and Appellant.
The Law Office of Cliff Dean Schneider and Cliff Dean
Schneider for Plaintiff and Respondent.
______________________________
Appellant Sid. M. Safi (Safi) seeks reversal of the portion
of the trial court’s February 5, 2021 order denying his Code of
Civil Procedure1 section 425.16 “anti-SLAPP ” special motion
to strike respondent Richard Long’s (Long) claim for malicious
prosecution.2 Because we conclude that Long has failed to
demonstrate a probability of prevailing on the first element of his
malicious prosecution claim—namely, that the action underlying
his claim concluded in a legal termination favorable to him—we
reverse and remand the matter with instructions to enter judgment
in favor of Safi3 and to award Safi attorney fees, in an amount to be
determined by the trial court.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
This appeal arises out of a decade-long dispute between
the parties concerning a $500 loan. Safi—who owns a pigeon
farm and sells “high quality, well-bred pigeons known as ‘[f]ancy
[p]igeons’ ”—contends that, in 2012, he and Long “entered into
a [written] contract as part of a more expansive deal for internet
fancy pigeon sales.” According to Safi, Long promised to provide
1All unspecified statutory references are to the Code of Civil
Procedure.
2 “ ‘SLAPP stands for “Strategic Lawsuit Against Public
Participation.” ’ ” (Lee v. Kim (2019) 41 Cal.App.5th 705, 710, fn. 1
(Lee), quoting Lam v. Ngo (2001) 91 Cal.App.4th 832, 835, fn. 1.)
“For clarity, we refer hereafter to an ‘anti-SLAPP’ motion as a
‘special motion to strike’—the language used in the statute (Code
Civ. Proc., § 425.16, subd. (b)(1)).” (Lee, supra, at p. 710, fn. 1.)
3As discussed, post, the trial court dismissed Long’s
remaining causes of action against Safi. On October 4, 2021, we
dismissed as untimely Long’s cross-appeal from those dismissals.
(Long v. Safi (B314462, app. dism. Oct. 4, 2021).)
2
him with $500 and 100 fancy pigeons, in exchange for Safi’s
agreement to share a portion of the profits from his pigeon “sales
services and consignment process.” Long provided the $500;
however, Safi maintains that Long failed to provide the promised
pigeons. Safi contends that, between 2013 and 2016, he therefore
attempted to return the $500, but that Long refused to accept
repayment. Instead, Long “attempted to charge [Safi] a daily high
interest rate,” demanding “$10,000 as repayment for [the] $500
loan.” Safi refused to pay the $10,000 sum that Long demanded.
Long denies that the parties had any agreement to enter into
a joint venture involving fancy pigeons.4 He maintains that, in
2012, Safi’s business “had financial difficulties,” and Safi therefore
“asked [Long] for help in the form of a short-term [$500] loan with a
20 [percent] interest rate.” Long contends that “[i]nitially, Safi said
that he w[ould] be able to payback [sic] the loan in 10 days, but he
failed to do [so].”
The parties’ dispute culminated in a series of three
litigation matters: (1) a January 20, 2016 small claims action
by Long against Safi (the small claims action);5 (2) an April 8,
2016 Los Angeles County Superior Court case alleging fraud
and other claims by Safi against Long (the 2016 fraud action);6
and (3) the August 4, 2020 Los Angeles County Superior Court
action underlying this appeal (the malicious prosecution action),
in which Long alleges, inter alia, a cause of action for malicious
4 Long does, however, appear to partake in events involving
fancy pigeons, as he alleges that Safi’s actions have harmed his
ability “to socialize and go to pigeon clubs.”
5(Long v. Safi (Small Claims, Super. Ct. L.A. County, 2016,
No. 16V00586).)
6 (Safi v. Long (Super. Ct. L.A. County, 2018, No. BC616429).)
3
prosecution against Safi on the basis of the 2016 fraud action
and seeks more than $5 million in damages.
A. Long’s Small Claims Action
On January 20, 2016, Long filed the small claims action
against Safi. Long sought not only the return of the $500 loan
amount, but $10,000 in total damages arising from Safi’s alleged
failure to pay interest and late fee charges in connection with
the loan. Long alleged that these charges accumulated at a rate
of “$10.00 a day from December 1, 2012 to January 20, 2016 . . .
according to [Safi’s] own contract.”
The small claims court heard Long’s claims on April 12,
2016, and entered a judgment in Long’s favor that same day in
the amount of $376.77 in principal and $90.00 in costs—a total
of $466.77.7 Although the record contains no transcript of the
proceeding, Safi contends—and Long does not dispute—that “[t]he
[small claims] judge severely admonished Long and told him that
he could not collect $9,700 in liquidated damages on a loan of
approximately $375.”
B. Safi’s 2016 Fraud Action
On April 8, 2016—four days prior to the April 12, 2016
hearing in Long’s small claims case—Safi filed the 2016 fraud
action. His complaint demanded a jury trial and asserted seven
causes of action against Long: (1) fraud, (2) usury, (3) extortion,
7 The record on appeal does not contain copies of the parties’
2012 contract or the April 12, 2016 small claims judgment. The
small claims action docket sheet, however, contains the following
entry: “Judgment entered as a final disposition on 4/12/2016.
For (Long, Richard V.). Against (Safi, Sid Mohammad). Principal
$376.77. Costs $90.00. Total $466.77. Execution stayed 30 days.
Uncontested.” (Capitalization omitted.)
4
(4) breach of contract, (5) breach of the covenant of good faith,
(6) defamation, and (7) intentional infliction of emotional distress.8
The thrust of Safi’s allegations in support of these claims was that
Long had defrauded him by reneging on the parties’ joint pigeon
venture agreement and then attempting to charge Safi usurious
interest and late fees in connection with the $500 loan. Safi alleged
further that Long had failed to perform in connection with other
pigeon sales contracts dating back to 2009, that Long had falsely
accused Safi of misconduct relating to pigeon shows, and that Long
had improperly excluded Safi from pigeon shows “because of [Safi’s]
national origin and religion.”9
Safi, who Long alleges is a paralegal, represented himself
throughout the duration of the 2016 fraud action. Safi maintains
that he filed the 2016 action as a separate case against Long in
the superior court only because he “was informed” that he could
not countersue Long in the small claims court action. On April 11,
2016, Safi requested that the court consolidate his 2016 fraud
action with Long’s small claims case so that a single judge could
hear both matters. The court denied his request.
The 2016 fraud action proceeded for nearly two years, with
trial set for March 21, 2018. Long, who was represented by counsel,
made several motions to compel discovery, as well as two motions
8 Although the caption of the complaint alleges seven causes
of action, the body of the complaint alleges only six causes of action:
(1) fraud, (2) extortion, (3) usury, (4) breach of contract, (5) breach
of the covenant of good faith, and (6) intentional infliction of
emotional distress.
9 Specifically, Safi alleged that Long “told [Safi] . . . [Long]
would sue [Safi] and win because of the climate of hatred and bias
that [Long] thought existed[,] and that nobody would believe [Safi]
because he was Iranian.”
5
for terminating sanctions. Although the trial court ordered
Safi to provide additional discovery, it denied Long’s requests for
terminating sanctions. Long contends that he also served a demand
for a bill of particulars, to which Safi allegedly failed to respond.
Finally, approximately one month prior to the scheduled trial date,
on February 20, 2018, Long filed three motions in limine: (1) a
motion to exclude all evidence of any contract between the parties
or debt allegedly owed by Long to Safi, (2) a motion to exclude all
evidence as barred by the doctrines of res judicata and collateral
estoppel, and (3) a motion to exclude any evidence sought or
obtained after the close of discovery.
On March 21, 2018, the parties appeared for a jury trial,
but trial did not begin. Instead, the court conducted a hearing
at which it denied Safi’s request for a jury trial, finding that Safi
had not posted jury fees, “ha[d] untimely sought an additional
fee waiver for waiver of jury fees,” and that he had not been
“diligent in preserving [his] right to a jury trial.” The court then
continued the trial to March 23, 2018. In addition, the court denied
Long’s first and third motions in limine, but took under submission
Long’s motion in limine to exclude all evidence on the grounds of
res judicata and collateral estoppel.
Safi contends that, on March 23, 2018, he “appeared for
what [he] thought would be the start of [his] trial. But trial was
not held.” Instead—despite previously denying the motions for
terminating sanctions and the motion in limine to exclude evidence
produced after the close of discovery—the court granted Long’s oral
motion to preclude Safi from testifying because certain date ranges
set forth in [Safi’s] discovery responses allegedly were “vague and
ambiguous.” Safi therefore “never was given the opportunity to be
sworn in and provide testimony. . . . In addition, the court found
that [Safi’s] claims were barred by the prior adjudication in the
6
small claims court by virtue of res judicata and collateral estoppel.”
Safi asserts that “[t]he entire proceeding on March 23, 2018 lasted
no more than ten minutes.”
In his declaration in opposition to Safi’s special motion
to strike, Long agrees nearly verbatim with Safi’s description
of the March 23 proceeding. In opposition to Safi’s subsequent
motions for a new trial and judgment notwithstanding the verdict
(discussed post), however, Long’s then-attorney I. Donald Weissman
submitted two virtually identical declarations (the Weissman
declarations) in which he attests that, prior to dismissing Safi’s
claims, the trial court permitted Safi to make an offer of proof
“regarding his testimony and the dates the events [relevant to his
claims] occurred.”10 Through the Weissman declarations, Long
asserts that, in response to his objection to Safi’s presentation of
“any evidence concerning his claims beyond th[at] stated in [Safi’s]
responses to discovery,” the court indicated that its “tentative
ruling was to sustain [Long’s] objections to testimony of any
certain date that contradict[ed] [Safi’s] discovery responses.” Long
maintains that “[t]he court [then] asked [Safi] for an offer of proof
regarding his testimony and the dates the events occurred.” (Italics
omitted.) According to Long, Safi stated in his offer of proof that
10 Neither Long’s respondent’s brief on appeal, nor his brief
in opposition to Safi’s special motion to strike, makes any mention
of Safi’s alleged offer of proof. We nonetheless address Long’s
contentions concerning the offer of proof because the Weissman
declarations in which they appear are attached as exhibits to Long’s
opposition to Safi’s special motion to strike. (See, e.g., Area 55,
LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 151
[“[i]n determining whether a plaintiff meets its responsive burden
under the second prong [of the anti-SLAPP inquiry], ‘the court shall
consider the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based’ ”].)
7
the parties’ joint pigeon venture agreement “started in 2012,” that
Long “kept promising but did not perform,” and that the terms of
the parties’ 2012 agreement were usurious.
Long contends that, “[a]fter [Safi’s] offer of proof, the
[c]ourt . . . sustained [Long’s] objections, explaining: [Safi] gave
a vague span of years as to when events occurred, or damages
occurred. The same vague responses were given to each inquiry.
[Long] objected to [Safi’s] testifying to any more than a span of
years. [Safi’s] offer of proof to show more specific dates was not
allowed.” (Italics omitted.) In addition, the court found that “[t]he
usury cause of action was impliedly ruled against [Safi] in the small
claims case. If the usury issue was not brought up then as a named
defense, it should have been. The issue [was] barred by res judicata
and collateral estoppel.” (Italics omitted.) The court then granted
judgment in favor of Long on all causes of action.
Long notes further that, in response to trial court orders,
he prepared and submitted to the court (1) an agreed statement of
facts concerning the March 23, 2018 proceeding, and (2) a proposed
judgment, which the court signed and entered on May 3, 2018.
Neither of these documents, however, appears in the record on
appeal. Nor does the record include copies of Safi’s discovery
responses or a transcript of the March 23 proceeding.11
Therefore—apart from the parties’ declarations submitted
in connection with the special motion to strike and the Weissman
declarations—the only evidence of the basis for the court’s dismissal
of Safi’s claims at the March 23, 2018 proceeding is a one-page
minute order, which provides:
“COURT TRIAL. [¶] The matter is continued from March 21,
2018. [Long’s] counsel makes an oral motion to preclude [Safi]
11 It appears that no such transcript exists.
8
from testifying to any specific date of occurrence on any of [Safi’s]
causes of action due to [Safi’s] vague and ambiguous responses
to discovery. [¶] Counsel and parties argue the motion. [¶] Court’s
exhibit 1, C-1 (form interrogatories) and C-2 ([Safi’s] verified
responses to form interrogatories) are marked for identification
only. [¶] The court grants [Long’s] motion and precludes [Safi] from
testifying. [¶] The court grants judgment in favor of [Long] on all
causes of action. [¶] [Long’s] counsel is ordered to file and serve
a proposed ruling and proposed judgment in conformity with the
court’s ruling.” (Capitalization omitted.)
Following the March 23 proceeding, on May 29, 2018, Safi
filed motions for a new trial and for judgment notwithstanding
the verdict. The court denied both motions, and on July 13, 2018,
Safi—still representing himself—filed a notice of appeal of the trial
court’s judgment. This court dismissed Safi’s appeal on August 2,
2019, due to his failure to make the necessary $100 deposit with
the superior court in order to procure the record on appeal.12
C. Long’s Malicious Prosecution Action and Safi’s
Special Motion to Strike
Following dismissal of Safi’s 2016 fraud action, Long filed suit
against Safi in Los Angeles County Superior Court on August 4,
2020.13 Long alleges, inter alia, that Safi’s 2016 lawsuit was part
of a “a scheme to extort monies from . . . and to defraud [him],”
and that he has suffered $5 million in damages, “plus prejudgment
interest,” as the result of Safi’s conduct. Long’s complaint asserts
four causes of action against Safi: (1) malicious prosecution,
12 (Safi v. Long (B291382, app. dism Aug. 2, 2019).)
13Although the Honorable Ernest Hiroshige presided over the
2016 fraud action, Long’s malicious prosecution action was assigned
to the Honorable Malcolm H. Mackey.
9
(2) intentional infliction of emotional distress, (3) negligent
infliction of emotional distress, and (4) elder abuse.
On November 16, 2020, Safi—who by this time had retained
legal counsel—filed a special motion to strike Long’s complaint
pursuant to section 425.16. As relevant to this appeal, Safi argued
that Long could not demonstrate a probability of prevailing on his
malicious prosecution claim “because Safi’s fraud claim was never
tried on the merits,” and thus Long could not establish the requisite
“favorable termination” element of the claim. In addition, Safi
argued that the litigation privilege codified in Civil Code section 47,
subdivision (b) mandated dismissal of Long’s remaining causes of
action.
In opposition, Long argued that the litigation privilege did not
apply, and that his malicious prosecution claim should survive
because the “small claims court case [No.] 16V00[586], the fraud
suit in the Los Angeles Superior Court, case [No.] BC616429, and
the appellate court case [No.] B291382, all ruled in favor of [Long]
with a judgment on the merits on similar claims regarding the
initial dispute between the parties.” (Capitalization omitted.)
Long submitted a declaration in support of his opposition in which
he attested that, at the March 23, 2018 proceeding in the 2016
fraud action, “[t]he [c]ourt . . . found . . . that [Safi’s] prior discovery
responses were vague[,] and as a result[,] he could not testify
as to matters not in his discovery responses. [¶] . . . In addition,
the court found that [Safi’s] claims were barred by the prior
adjudication in the small claims court by virtue of res judicata
and collateral estoppel.” (Boldface omitted.) Along with his reply
brief in further support of the special motion to strike, Safi filed
evidentiary objections to portions of Long’s declaration.
At the February 5, 2021 hearing on Safi’s motion, the trial
court adopted its tentative ruling that the litigation privilege
10
barred all Long’s causes of action, with the exception of his claim
for malicious prosecution. As to that claim, the court denied
Safi’s special motion to strike, reasoning that “[Long’s] declaration,
including paragraph 8, and exhibits, show disputes about lack
of probable cause, and the existence of malice, in falsely claiming
[Long] took a loan to be paid back, and in relitigating relat[ed] case
determinations, and maliciously retaliating against [Long’s] court
claims by causing expenses to [Long]. Further, ‘[t]he underlying
action went to trial and was terminated on the merits in favor of
[Long] and against [Safi].’ . . . More specifically, the minute orders
and trial documents filed in the underlying case, and attached
to the [c]omplaint, do not reveal a decision solely based upon
res judicata, but instead one made after an insufficiently supportive
offer of proof addressing the merits, done by a self-represented
litigant.”14 Finally, the trial court orally denied Safi’s request
that it rule on his evidentiary objections to Long’s declaration.
Safi timely appealed the court’s February 5, 2021 order denying
his special motion to strike Long’s malicious prosecution claim.15
14 The trial court did not identify with any further specificity
which “minute orders and trial documents filed in the underlying
case” supported its ruling. The court did not, for example, identify
any such documents at the February 5, 2021 hearing on the special
motion to strike. In addition, although the trial court’s order
references materials “attached to the [c]omplaint,” Long’s complaint
does not have any attachments (nor does the body of the complaint
refer to any attachments).
15 “[A] notice of appeal must be filed on or before the earliest
of: [¶] (A) 60 days after the superior court clerk serves on the party
filing the notice of appeal a document entitled ‘Notice of Entry’
of judgment or a filed-endorsed copy of the judgment, showing
the date either was served; [¶] (B) 60 days after the party filing
11
DISCUSSION
A. Applicable Law and Standard of Review
“ ‘ “ ‘The Legislature enacted the anti-SLAPP statute to
protect defendants . . . from interference with the valid exercise
of their constitutional rights, particularly the right of freedom
of speech and the right to petition the government for the redress
of grievances.’ ” ’ ” (Lee, supra, 41 Cal.App.5th at p. 718, quoting
Bleavins v. Demarest (2011) 196 Cal.App.4th 1533, 1539 (Bleavins).)
The statute provides that “ ‘[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.’ ” (Lee,
supra, at p. 718, quoting § 425.16.) “ ‘The statute is to “be broadly
construed to encourage continued participation in free speech and
petition activities.” ’ ” (Lee, supra, at p. 718, quoting Bleavins,
supra, at p. 1539.)
“ ‘In evaluating an anti-SLAPP motion, the court conducts
a potentially two-step inquiry. [Citation.] First, the court must
decide whether the defendant has made a threshold showing
that the plaintiff ’s claim arises from protected activity. [Citation.]
To meet its burden under the first prong of the anti-SLAPP test, the
the notice of appeal serves or is served by a party with a document
entitled ‘Notice of Entry’ of judgment or a file-endorsed copy of
the judgment, accompanied by proof of service; or [¶] (C) 180 days
after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1).)
Safi served Long with a notice of entry of the court’s February 5,
2021 ruling on February 10, 2021. Safi then filed his notice of
appeal on April 5, 2021, within the prescribed 60-day limit.
12
defendant must demonstrate that its act underlying the plaintiff ’s
claim fits one of the categories spelled out in subdivision (e) of
the anti-SLAPP statute[, section 425.16].’ [Citation.]” (Lee, supra,
41 Cal.App.5th at p. 718.)
“ ‘Second—if the defendant meets its burden of showing all
or part of its activity was protected—then the court proceeds to the
next step of the inquiry. At this stage—applying the second prong
of the anti-SLAPP test—the court asks “whether the plaintiff has
demonstrated a probability of prevailing on the claim.” ’ [Citation.]
The Supreme Court has ‘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. [Citation.] “[C]laims with
the requisite minimal merit may proceed.” ’ [Citation.]” (Lee,
supra, 41 Cal.App.5th at pp. 718−719, quoting Baral v. Schnitt
(2016) 1 Cal.5th 376, 384−385, fn. omitted.)
“An appeal from an order granting or denying a special
motion to strike is reviewed de novo.” (Lee, supra, 41 Cal.App.5th
at p. 719, quoting Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 269, fn. 3.)
B. The Malicious Prosecution Claim Involves
Protected Conduct
“The anti-SLAPP statute defines an ‘ “act in furtherance of
a person’s right of petition or free speech” ’ to include ‘any written
or oral statement or writing made before a . . . judicial proceeding.’ ”
(Lee, supra, 41 Cal.App.5th at p. 719, quoting § 425.16, subd. (e)(1).)
“The plain language of the anti-SLAPP statute [thus] dictates that
13
every claim of malicious prosecution is a cause of action arising
from protected activity, because every such claim necessarily
depends upon written and oral statements in a prior judicial
proceeding.” (Lee, supra, at p. 719, citing Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 734−735.) Accordingly, Safi has
met his burden under the first prong of the anti-SLAPP inquiry,
and our analysis therefore shifts to whether Long has “satisfied
[his] . . . burden[ ] to demonstrate a probability of prevailing on
the merits of [his] claim[ ] for malicious prosecution.” (See Lee,
supra, at p. 719.)
C. Long Fails To Demonstrate a Probability of
Prevailing on the Merits of His Malicious
Prosecution Claim
“ ‘ “Malicious prosecution is a disfavored action. [Citations.]
This is due to the principles that favor open access to the courts
for the redress of grievances.” ’ ” (Daniels v. Robbins (2010) 182
Cal.App.4th 204, 216 (Daniels), quoting Downey Venture v. LMI
Ins. Co. (1998) 66 Cal.App.4th 478, 493.) Although malicious
prosecution suits are not barred simply because they are disfavored
(Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349), the
elements of this cause of action “ ‘have historically been carefully
circumscribed so that litigants with potentially valid claims will
not be deterred from bringing their claims to court by the prospect
of a subsequent malicious prosecution [action].’ ” (Daniels, supra,
at p. 216, quoting Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 872.)
“ ‘To prevail on a malicious prosecution claim, the plaintiff
must show that the prior action’ ”—here, Safi’s 2016 fraud action—
“ ‘(1) was commenced by or at the direction of the defendant and
was pursued to a legal termination favorable to the plaintiff;
(2) was brought without probable cause; and (3) was initiated with
14
malice.’ ” (Lee, supra, 41 Cal.App.5th at pp. 719−720, quoting
Soukup, supra, 39 Cal.4th at p. 292.) Safi contends that Long
cannot demonstrate a probability of prevailing on the “favorable
termination” element of his malicious prosecution claim. We agree.
“ ‘In order for a termination of a lawsuit to be considered
favorable with regard to a malicious prosecution claim, the
termination must reflect on the merits of the action and the
plaintiff ’s innocence of the misconduct alleged in the lawsuit.’ ”
(Lee, supra, 41 Cal.App.5th at pp. 719−720, quoting Contemporary
Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1056.)
“[I]n evaluating whether there has been a favorable termination
on the merits, the court ‘ “look[s] at the judgment as a whole in
the prior action . . . .” [Citation.]’ ” (Maleti v. Wickers (2022) 82
Cal.App.5th 181, 206, rehg. den. & opn. ordered mod. Sept. 9, 2022;
review den. Nov. 22, 2022, S276519.)
“ ‘The key is whether the termination reflects on the
underlying defendant’s innocence. [Citations.] 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.” ’ ” (Robbins v. Blecher (1997) 52 Cal.App.4th
886, 893 (Robbins), italics omitted.)
Safi contends that the resolution of the 2016 fraud action
does not “reflect on [Long’s] innocence.” (See Robbins, supra,
52 Cal.App.4th at p. 893.) Relying on JSJ Limited Partnership v.
Mehrban (2012) 205 Cal.App.4th 1512 (JSJ), Safi argues that the
court’s resolution of his usury claim on res judicata and collateral
estoppel grounds constituted a procedural dismissal, rather than
a termination on the merits. (Id. at p. 1527.) Safi argues further
that the court failed to consider the merits of his remaining claims
because it precluded him from testifying due to his allegedly
15
deficient discovery responses. Safi argues that the facts here
therefore are analogous to those in Pattiz v. Minye (1998) 61
Cal.App.4th 822 (Pattiz), in which the court concluded that
dismissal of an action due to a party’s “ ‘egregious[ ]’ fail[ure]
to comply with court-ordered discovery” did not constitute a
favorable termination on the merits for purposes of a malicious
prosecution claim. (Id. at p. 828.)
In response, Long neglects to address the authorities to which
Safi points and fails to direct us to any other potentially relevant
authorities. Indeed, Long’s three-and-one-half page respondent’s
brief on appeal does not engage meaningfully with any of Safi’s
arguments concerning the “favorable termination” element. Long
merely asserts that we should credit his declaration in opposition
to Safi’s special motion to strike, and then goes on to quote a single
sentence from the March 23, 2018 minute order issued by the court
in the 2016 fraud action.
We find persuasive Safi’s argument that the trial court’s
resolution of his usury claim on res judicata and collateral
estoppel grounds does not constitute a “favorable termination”
sufficient to support Long’s malicious prosecution claim. In JSJ,
the Second District reasoned that, although “not an easy issue”
(JSJ, supra, 205 Cal.App.4th at p. 1525), the “successful invocation
of the defense of res judicata in the underlying claim is not a
determination on the merits for purposes of a malicious prosecution
action” because “res judicata is not based on whether a party’s
claim is actually meritorious.” (Id. at pp. 1526−1527.) “Rather, the
doctrine is an affirmative defense, which as a matter of procedure,
bars the claim—just as the statute of limitations does—whether the
claim is meritorious or not.” (Id. at p. 1526.)
More recently, however, the Fourth District in Alston v. Dawe
“decline[d] to follow the rule articulated in JSJ ” because dismissal
16
on the grounds of collateral estoppel (an aspect of the doctrine of
res judicata)16 “can occur for a number of reasons, including the fact
that the same issue was already litigated and decided on the merits
in an earlier proceeding.” (Alston v. Dawe (2020) 52 Cal.App.5th
706, 712 (Alston).) “Thus,” the Alston court concluded, “when ruling
on an anti-SLAPP motion attacking a malicious prosecution claim
that arises out of another lawsuit that was dismissed on collateral
estoppel grounds, a trial court should look behind the collateral
estoppel ruling in the prior case to determine what the rationale
for that ruling was. If, in that earlier proceeding, the party’s lack of
culpability on the disputed issue was argued, litigated, and decided
on the merits, the dismissal of the subsequent case on collateral
estoppel grounds qualifies as a favorable termination for purposes
of a later malicious prosecution claim.” (Ibid.)
Even applying the rule set forth in Alston, Long has failed
to demonstrate a probability of prevailing on the “favorable
termination” element of his malicious prosecution claim with
respect to Safi’s usury cause of action. Nothing in the record
indicates that “the disputed [usury] issue was argued, litigated,
and decided on the merits” in Long’s favor. (See Alston, supra,
52 Cal.App.5th at p. 712.) To the contrary, the record reflects that
16 “[R]es judicata ‘precludes parties or their privies from
relitigating a cause of action,’ and in this sense ‘has traditionally
been referred to as “res judicata” or “claim preclusion.” ’ [Citation.]
[¶] In addition to claim preclusion, ‘[r]es judicata also includes a
broader principle . . . commonly referred to as “collateral estoppel”
or “issue preclusion.” Under this principle an issue necessarily
decided in prior litigation may be conclusively determined as
against the parties or their privies in a subsequent lawsuit on a
different cause of action.’ [Citation.]” (Patel v. Crown Diamonds,
Inc. (2016) 247 Cal.App.4th 29, 39, italics omitted.)
17
Safi’s attempt to consolidate the small claims action and the 2016
fraud action—to enable a single judge to hear and consider his
usury claim in conjunction with Long’s allegations against Safi—
was unsuccessful. Moreover, the small claims court’s refusal to
award the thousands of dollars in interest and late fees that Long
sought in connection with the $500 loan appears to support Safi’s
usury allegations. Finally, Safi’s contention—undisputed by Long—
that the small claims judge admonished Long for his attempt to
collect excessive interest and fees further supports this view.
We similarly are unconvinced that the trial court’s resolution
of Safi’s remaining claims in the 2016 fraud action constitutes a
“favorable termination” of those claims sufficient to support Long’s
malicious prosecution suit. Although the court’s March 23, 2018
minute order characterizes the proceeding that day as a “court
trial,” the record does not reflect that the court conducted a
trial on the merits of Safi’s claims. Long does not dispute that
the proceeding lasted no more than 10 minutes; Long confirms in
his declaration that the court precluded Safi from testifying as a
discovery sanction; and it does not appear that the court permitted
Safi to introduce any other testimony or evidence in support of
his claims.17 We therefore conclude that the March 23 proceeding
was not a court trial, but instead amounted to a dismissal of Safi’s
claims as a discovery sanction.
Long’s evidence concerning Safi’s alleged offer of proof—
which we accept as true for purposes of evaluating the special
motion to strike—does not alter our conclusion. The two Weissman
17 The only documents to which the March 23, 2018 minute
order refers are Long’s form interrogatories and Safi’s responses to
those interrogatories, and the order indicates that these materials
were “marked for identification only” during the proceeding.
18
declarations are the only sources of such evidence. The declarations
confirm that Safi offered a more specific time frame for the events
described in his complaint than the “vague span of years” allegedly
identified in his discovery responses, and that the trial court
nonetheless precluded him from testifying as a discovery sanction:
“The court asked [Safi] for an offer of proof regarding his testimony
and the dates the events occurred. [¶] . . . [Safi’s] offer of proof was
the breach of agreement by [Long] to supply plaintiff pigeons . . . .
[Safi] argued that agreement started in 2012 and [Long] kept
promising but did not perform. . . . [¶] . . . After [Safi’s] offer of
proof, the [c]ourt . . . sustained [Long’s] objections . . . . [Safi’s] offer
of proof to show more specific dates was not allowed. [¶] . . . [¶] The
court rendered judgment in favor of [Long] on all causes of action.”
(Italics added & omitted.)
Our conclusion that the court effectively dismissed Safi’s
claims as a discovery sanction does not end our inquiry, however.
Termination of a claim on the basis of a discovery sanction may
constitute a “ ‘favorable termination’ ” for purposes of a malicious
prosecution claim if the alleged discovery violation “ ‘reflect[s]
on the merits of the case and the malicious prosecution plaintiff ’s
innocence of the misconduct alleged in the underlying lawsuit.’ ”
(Daniels, supra, 182 Cal.App.4th at p. 217.) “ ‘[T]he court [thus]
examines the record “to see if the disposition reflects the opinion of
the [trial] court [in the underlying action] or the prosecuting party
that the action would not succeed.” ’ [Citations.]” (Ross v. Kish
(2006) 145 Cal.App.4th 188, 198 (Ross).) Put another way, we must
determine whether an inference can be drawn that the alleged
discovery violation here amounts to “a concession . . . that [Safi’s]
claim[s] lacked merit.” (Ibid.)
The facts in this case do not support such an inference. As
detailed, ante, the record is devoid of any evidence indicating that
19
the trial court considered the merits of Safi’s claims. Moreover,
without the benefit of legal counsel, Safi actively pursued his claim
against Long for nearly two years; successfully opposed Long’s
successive motions for terminating sanctions and to exclude any
belatedly disclosed discovery; sought a jury trial; attempted to cure
what the court perceived as defects in his discovery responses via
an offer of proof; nonetheless was precluded from presenting any
evidence in support of his claims at trial; and then filed motions for
a new trial and judgment notwithstanding the verdict challenging
the trial court’s rulings. Thus, even accepting as true Long’s
version of the facts, the record does not support that the trial court,
or Safi himself, was of “the opinion . . . that [Safi’s] action would not
succeed.” (Ross, supra, 145 Cal.App.4th at p. 198.)
Safi’s case therefore is distinguishable from those in which
courts have concluded that dismissals resulting from a party’s
discovery violations are sufficient to support a subsequent malicious
prosecution action. (Compare Pattiz, supra, 61 Cal.App.4th
at p. 828 [declining to follow Lumpkin v. Friedman (1982) 131
Cal.App.3d 450, and finding no favorable termination where
“factual showing by declarations negate[d] an inference that . . .
failure [of plaintiff in underlying action] to comply with discovery
was a concession that [plaintiff ’s claims] lacked merit”] with Ross,
supra, 145 Cal.App.4th at p. 200 [affirming denial of anti-SLAPP
motion challenging malicious prosecution claim because “dismissal
of [the underlying] lawsuit for [the prosecuting party’s] refus[al] to
be deposed, like [a] dismissal for failure to prosecute . . . [citation],
reflect[ed] adversely on the merits of the action based on the
natural assumption that one does not simply abandon a meritorious
action once instituted”] and Lumpkin, supra, 131 Cal.App.3d at
p. 455 [favorable termination element adequately pleaded where
court in the underlying action permitted the prosecuting party, an
20
attorney, to present testimony from his former client, but precluded
the attorney from presenting other evidence due to his failure to
comply with certain discovery requirements].)
Accordingly, we find that Long has failed to demonstrate
a probability of prevailing on the “favorable termination” element
of his malicious prosecution claim—a conclusion that mandates
reversal of the trial court’s denial of Safi’s special motion to strike
and dismissal of Long’s claim for malicious prosecution.18 Because
malicious prosecution is Long’s only remaining cause of action, our
decision also requires that the trial court enter judgment in favor
of Safi.
D. Attorney Fees
Finally, although Safi is representing himself on appeal,
he requests that we “award his appellate attorney fees, for work
Safi’s former attorney Jeff Lewis did . . . before [he] substituted
out” of the case. A defendant who prevails on a special motion to
strike is entitled to an award of appellate attorney fees. (See, e.g.,
Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) Accordingly,
we remand the matter to the trial court with directions to
award Safi attorney fees incurred on appeal, in an amount to be
determined by the trial court.
18We therefore need not address Safi’s arguments concerning
the other elements of Long’s malicious prosecution claim. Nor need
we resolve whether the trial court erred in failing to rule on the
evidentiary objections Safi submitted in connection with his special
motion to strike.
21
DISPOSITION
We reverse the portion of the trial court’s February 5, 2021
ruling denying Safi’s special motion to strike with respect to Long’s
claim for malicious prosecution. The matter is remanded with
instructions to enter judgment for Safi and to award Safi attorney
fees incurred on appeal, in an amount to be determined by the trial
court. Appellant Safi is awarded his costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
22