Lee v. Kim ( 2019 )

Filed 10/2/19; Certified for Publication 10/30/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TAE SEOG LEE, B287923
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC673852)
v.
JONG YUN KIM,
Defendant and Respondent.
B289837
GRIP SMART PRINTING, INC.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC692010)
v.
JONG YUN KIM,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Dalila Corral Lyons and Richard E. Rico, Judges.
Affirmed.
Employment Rights Attorneys and Richard D. Schramm for
Plaintiff and Appellant Tae Seog Lee and Plaintiff and
Respondent Grip Smart Printing, Inc.
Lim Law Group and Preston H. Lim for Defendant,
Appellant and Respondent Jong Yun Kim.
________________________
INTRODUCTION
These consolidated appeals arise out of two separate orders
under the anti-SLAPP statute addressing special motions to
strike malicious prosecution claims.1 Our chronicle begins when
attorney Jong Jun Kim commenced a lawsuit against
businessman Tag Seog Lee in federal court for alleged violations
of the Americans with Disabilities Act (ADA; 42 U.S.C. § 12101 et
seq.) and the Unruh Civil Rights Act (Unruh Act; Civ. Code, § 51
et seq.). Kim alleged his client, who used a wheelchair for
mobility, was denied access to Lee’s business Grip Smart
Printing, Inc. (Grip Smart) because the adjacent parking lot did
not have a handicapped accessible spot.
1 “SLAPP stands for ‘Strategic Lawsuit Against Public
Participation.’ ” (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)). While the actions below
were pursued separately, we consolidated the appeals as they
share common facts and related parties.
2
After the complaint was filed, Lee’s attorney provided
information suggesting the lawsuit was meritless because Grip
Smart was a corporate tenant on a commercial lease, and the
landlord (and not Grip Smart or any other tenant) controlled the
parking lot. Lee’s attorney followed up shortly thereafter by
providing a copy of the lease that verified his representations.
Kim then voluntarily dropped the claims against Lee in favor of
pursuing Grip Smart as well as its landlord. The federal district
court eventually entered summary judgment in Grip Smart’s
favor, finding the alleged injury to Kim’s client was not traceable
to Grip Smart’s conduct because, as a tenant, Grip Smart had no
control over the parking lot. The landlord settled for a modest
$3,000 payment without any agreement to remedy the alleged
accessibility issues.
Lee thereafter sued Kim for malicious prosecution. Kim
responded with a special motion to strike pursuant to Code of
Civil Procedure section 425.16.2 The trial court (the Honorable
Dalila Corral Lyons) granted Kim’s motion, finding that Kim’s
filing of the underlying lawsuit was protected conduct, and Lee
had failed to establish a probability of prevailing on his malicious
prosecution claim. After this ruling, Grip Smart filed a separate
action against Kim for malicious prosecution, which was assigned
to a different judicial officer (the Honorable Richard E. Rico).
Kim again filed a special motion to strike. This time, the trial
court denied the motion, determining that Grip Smart had
established a probability of prevailing on its malicious
prosecution claim.
2 All unspecified statutory references are to the Code of
Civil Procedure.
3
Lee now appeals the grant of Kim’s special motion to strike
Lee’s claim. Kim appeals the denial of his special motion to
strike Grip Smart’s claim. Finding no reversible error in either
ruling, we affirm.
BACKGROUND
A. Grip Smart’s Business Premises
In 2008, Lee and his wife purchased an existing printing
business called “Smart Printing.” They incorporated the business
as Grip Smart in 2009. At the time, the business was one of 12
tenants in a commercial building owned by Yong O. Hwang
(Hwang) and his company, Yongo America, Inc. (Yongo). Yongo
and Hwang also owned the building’s parking lot. Lee entered
into a series of oral and written leases with Yongo for the shop
premises. Lee and his wife have never had an ownership interest
in Yongo, the building, or the parking lot.
The leases define “common areas” as the “parking lots,
sidewalks, driveways and other areas used in common by the
Tenants of the Shopping Center.” Lee alleged that, throughout
his tenancy, Yongo never gave him permission, either orally or in
writing, to make changes or additions to any of the common
areas. The leases gave Yongo the exclusive authority to
“supervise and administer” the common areas, including the
parking lot, and to charge the tenants for associated costs.
Yongo reserved the right to make changes to the
“entrances, exits, traffic lanes and the boundaries and locations
of such parking area or areas,” including “the right to designate
up to twenty-five percent (25%) of such parking area for the
exclusive use of any . . . future tenant or tenants.” Lee alleged
that, as a tenant, he never had the right to control the parking
lot.
4
Yongo was further responsible for causing the “common
and parking areas” “to be graded, surfaced, marked and
landscaped,” and for keeping these areas “in a neat, clean[,]
orderly” and repaired condition. Yongo reserved the right to
determine whether anyone other than customers of the building
were permitted to park their vehicles in the parking lot. The
building’s tenants, including Lee, agreed to comply with “rules,
regulations and charges for parking” as established by Yongo.
B. The Underlying Action
On September 18, 2016, Kim filed a complaint in federal
court on behalf of Patricia Sue Williams against Taesik Yoon,
doing business as “Smart Printing.” The lawsuit (the Underlying
Action) sought damages, injunctive relief, and attorneys’ fees for
violations of the ADA and the Unruh Act.3 Williams is a
paraplegic who uses a wheelchair for mobility. On behalf of
Williams, Kim alleged Yoon was the owner of Smart Printing.
Kim alleged Williams attempted to patronize the business in
September 2016 but was unable to do so because the parking lot
lacked an accessible parking space. Kim alleged that, on
information and belief, a fully compliant parking space for
persons with disabilities once existed in the lot, but Yoon failed to
maintain the space and allowed the paint markings for the access
aisle to fade beyond visibility. The complaint alleged the
inaccessible parking lot denied Williams “full and equal access” to
the printing business. Despite the fact that Williams did not
enter the business, Kim alleged Williams “belie[ved]” there were
additional “barriers” to access at the property and would amend
3
Although it is not clear from the record, it appears Yoon
may have previously owned the printing business.
5
the complaint once Williams was able to access Smart Printing’s
premises and conduct an inspection.
Kim filed an amended complaint in October 2016, adding
Lee as a defendant. The amended pleading was substantially
similar to the original complaint, but alleged Yoon and Lee were
both doing business as Smart Printing.
On November 2, 2016, counsel for Lee and Grip Smart sent
a letter to Kim advising that Grip Smart had no control over the
parking lot and the claims in the Underlying Action were
meritless. Counsel advised Kim that Yongo owned the building
and parking lot where Williams allegedly encountered her
disability access issues, and offered to provide Kim with the lease
agreement applicable to the property. Kim declined to amend the
complaint to name Yongo and instead demanded payment from
Grip Smart.
On November 4, 2016, counsel sent another letter to Kim
advising Kim of the following: (1) Grip Smart had no custody or
control over the property giving rise to Williams’s claims; (2) Kim
needed to sue Yongo, the actual owner of the parking lot; (3) Grip
Smart was not liable to Williams simply by virtue of its tenancy
in the building next to the parking lot; (4) federal law excluded
tenants from disability access liability in cases like Williams’s;
(5) Kim’s refusal to name the property owner was evidence of his
malicious intent to pursue the lawsuit solely to exact a monetary
settlement; and (6) photographs of the parking lot at issue
showed properly marked handicap parking, evidencing the lack of
merit to the claims. Counsel also sent Kim a copy of Grip Smart’s
6
lease.4 Counsel asked Kim to dismiss Lee from the lawsuit and
warned that his clients would seek sanctions under rule 11 of the
Federal Rules of Civil Procedure if Kim continued to pursue
claims against them.
Pursuant to a stipulation signed by Lee, in January 2017
Kim again amended the complaint in the Underlying Action to
add Grip Smart and Yongo as defendants. The second amended
complaint did not include Yoon and Lee as defendants, and the
stipulation stated that Williams would seek to dismiss Yoon and
Lee without prejudice.5 The second amended complaint
identified Grip Smart as the operator of the printing business
and Yongo as the owner of the property at which the business
was located.
On February 21, 2017, counsel for Lee and Grip Smart
again wrote to Kim to request that Williams dismiss her ADA
and Unruh Act claims. Counsel’s letter reiterated the position
that Williams lacked standing to sue Grip Smart because, as
evidenced by the lease agreements, Grip Smart did not control
the parking lot.
4 Although counsel’s transmittal of the lease is not part of
the record and it is unclear whether he included the lease with
his November 4, 2016 letter to Kim or sent it separately, Kim
admits that “[o]n or around November 4, 2016, [he] received a
copy of the lease from [counsel], indicating that the tenant was in
fact [Grip Smart], rather than Tae Seog Lee.”
5 The record does not contain the federal court’s ruling on
the stipulation, nor does it reflect any attempts by Williams to
dismiss Yoon or Lee. We note Grip Smart represented in its
motion to dismiss, discussed below, that Williams dismissed Yoon
and Lee at the time she filed her second amended complaint.
7
When Kim failed to dismiss Grip Smart, counsel for Grip
Smart moved for judgment on the pleadings pursuant to the
Federal Rules of Civil Procedure, rule 12(c) or, in the alternative,
for summary judgment under the Federal Rules of Civil
Procedure, rule 56. The federal court considered the motion as
one for summary judgment and, after considering extrinsic
materials submitted by the parties, granted summary judgment
in Grip Smart’s favor. The federal court found uncontroverted
evidence demonstrated Grip Smart did not own or control the
parking lot where Williams alleged she suffered injury. It held
that “because Williams’ injury is not traceable to Grip Smart’s
actions, she lacks standing to bring disability discrimination
claims against Grip Smart based on the parking lot injuries.”
(Fn. omitted.) On May 19, 2017, the federal court entered
judgment in favor of Grip Smart. Williams settled her claims
against Yongo for a payment of $3,000 and a mutual release.
C. The Malicious Prosecution Actions
1. Lee v. Kim
(a) The Complaint
A few months after entry of judgment in the Underlying
Action, Lee filed a complaint against Kim for malicious
prosecution. Lee alleged Kim filed the Underlying Action without
investigating who owned the parking lot, then asserted claims
against Lee’s business in the second amended complaint after
having been advised Yongo owned, and was in control of, the
parking lot. Lee alleged Kim continued to prosecute claims
against Grip Smart after learning Grip Smart had no control over
the parking lot, and after admitting in each iteration of the
complaint that Williams observed no accessibility violations
inside Grip Smart’s facility. Lee alleged the ownership of the
8
relevant land, parking lot, and buildings was easily discoverable
by a search of the records of the Los Angeles County Recorder’s
Office, yet Kim never conducted this simple research.
Lee also alleged that the settlement agreement with Yongo
did not address any correction of the disability access issues in
the parking lot, but rather provided for only monetary
compensation. As a further indication of improper purpose in
filing and maintaining the Underlying Action, Lee alleged Kim
and Williams filed 46 separate disability access lawsuits in
federal court between March 30 and August 7, 2016, 34 of which
settled. Lee alleged on information and belief that “very few or
none” of the settled cases included “resolution of the disability
access issues via inspections by a Certified Access Specialist,
repairs to illegal parking areas, or establishment of accessible
parking areas.” Instead, Lee alleged, the lawsuits were filed
solely to extract monetary settlements, “the lion’s share” of which
would be retained by Kim, not Williams.
(b) The Special Motion to Strike
Kim responded by filing a special motion to strike, arguing
Lee’s malicious prosecution complaint arose from Kim’s protected
activity of representing Williams in the Underlying Action and
petitioning on her behalf. Kim argued Lee had no probability of
prevailing on his malicious prosecution claim because Lee did not
receive a favorable determination on the merits of the Underlying
Action, and the lawsuit was brought with probable cause and
without malice. Specifically, Kim contended his voluntary
dismissal of Lee from the Underlying Action—which occurred
when Kim dismissed Lee in favor of adding Grip Smart as a
defendant—was not a favorable determination on the merits
because including Lee had “merely [been] a technical error.”
9
Kim further argued he had probable cause to file and
maintain the Underlying Action because the lease with Yongo
was “insufficient” to determine who was liable and, even after a
settlement was reached, Yongo continued to assert Grip Smart
should be responsible for 50 percent of the liability. With respect
to the element of malice, Kim contended his only motive for filing
the Underlying Action was to seek compensation for Williams,
and there was no evidence he had any improper purpose for
pursuing Lee.
In his opposition, Lee argued that he had prevailed on the
merits, as Kim had initially sought individual liability against
the owner of the business, and ultimately dismissed Lee. Lee
further argued that Kim lacked probable cause to pursue Lee, as
Kim knew as early as November 2016 that neither Lee nor his
business owned the building or parking lot where Williams
allegedly encountered access barriers. Finally, Lee argued Kim’s
pursuit of individual liability and demands for monetary
settlement supported a finding of malice.
(c) Court Ruling on the Special Motion to Strike
On November 6, 2017, Judge Lyons granted Kim’s special
motion to strike. The court determined the complaint arose from
protected activity, but that Lee failed to establish a probability of
prevailing on his complaint because he could not demonstrate the
Underlying Action was terminated in his favor on the merits:
“[Kim] chose not to proceed [against Lee] because of a technical
defect—namely that [Kim] had asserted the action against [Lee]
in his individual capacity, but now sought to sue [Lee’s]
corporation as the proper party. This did not reflect on the
substantive merits.” Since it found Lee could not establish one of
the prima facie elements of his malicious prosecution claim, the
10
trial court did not reach the remaining elements of probable
cause or malice. Pursuant to section 425.16, subdivision (c), the
court awarded Kim his attorney fees and costs incurred on the
special motion to strike in the amount of $18,172.50. Lee timely
appealed.6
2. Grip Smart v. Kim
(a) The Complaint
On January 29, 2018, after Lee’s complaint was struck,
Grip Smart filed a separate complaint against Kim for malicious
prosecution. Grip Smart’s complaint was nearly identical to Lee’s
complaint, but added as additional evidence of Kim’s improper
purpose an allegation that, following entry of judgment against
his client, Kim entered Grip Smart’s facility and demanded Lee
and his wife pay him $18,000 to settle “all” remaining legal
6 “[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 the
notice of appeal serves or is served by a party with a document
entitled ‘Notice of Entry’ of judgment or a filed-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)
(rule 8.104).) The record indicates no document complaint with
rule 8.104(a)(1)(A) or (a)(1)(B) was served on Lee, and he
therefore had 180 days from the date of the judgment or order to
file its notice of appeal. (Rule 8.104(a)(1)(C).) The trial court
issued its order granting Kim’s motion to strike Lee’s complaint
on November 6, 2017. Lee’s notice of appeal was filed on
January 31, 2018.
11
issues. Kim knew Grip Smart was still represented by counsel at
that time.
(b) The Special Motion to Strike
As he had with regard to Lee’s complaint, Kim responded
by filing a special motion to strike. Kim made the same
arguments he made in the motion to strike Lee’s claim regarding
probable cause and malice, but proffered a different theory as to
why Grip Smart did not obtain a favorable termination on the
merits in the Underlying Action. Kim asserted that the federal
court’s dismissal of Williams’s claims against Grip Smart for lack
of standing under article III of the Constitution was not “ ‘on the
merits’ ” of the ADA and Unruh Act claims asserted in the
Underlying Action.
In opposition, Grip Smart argued it had prevailed on the
merits in the Underlying Action through the grant of summary
judgment, Kim lacked probable cause to pursue Grip Smart
because Kim knew by November 2016 that Grip Smart did not
own the building or parking lot, and Kim’s continued pursuit of
monetary settlement without any legal basis supported a finding
of malice. Grip Smart provided a declaration from Grip Smart’s
counsel containing evidence in support of its arguments, and
identifying pertinent pleadings and orders in the Underlying
Action attached to Kim’s request for judicial notice.
(c) Court Ruling on the Special Motion to Strike
On April 17, 2018, Judge Rico denied Kim’s special motion
to strike. The court found the malicious prosecution claim arose
from protected activity, but that Grip Smart had made the
requisite showing that it would probably prevail. The court
rejected Kim’s argument that the dismissal of the Underlying
Action for lack of article III standing was purely jurisdictional,
12
noting “the summary judgment ruling makes clear that this was
not a mere technical dismissal for lack of jurisdiction. Having
considered the evidence, the [federal] court made the
determination that [Grip Smart] did not ‘own or control the
parking lot where Williams alleged she encountered barriers to
her disability . . . .’ ” Further, the trial court determined the
lease “ma[de] no . . . provision” for Grip Smart’s ability to operate
or control the parking lot, so “there was no basis for believing
that [Grip Smart] was in any way responsible for the alleged
ADA violation” and the lawsuit lacked probable cause.
The trial court was particularly troubled by Kim’s
continued prosecution of the Underlying Action against Grip
Smart even after he was made aware of the terms of the lease. In
response to Kim’s contention that Grip Smart provided him with
no evidence other than the lease to show a lack of ownership or
control, and did not provide “ ‘sworn statements or declarations’ ”
regarding the control issue until the motion for summary
judgment, the trial court noted, “[i]t was not [Grip Smart’s
counsel’s] obligation to prove a negative, it was Kim’s obligation
to establish probable cause to continue the law suit for which
apparently none existed.”
Lastly, the court found that Kim’s prosecution of the
Underlying Action despite the lack of probable cause, along with
the proffered evidence Kim demanded money from Grip Smart
after learning the suit lacked merit, were sufficient to support a
conclusion the matter was pursued with malice. Kim timely
appealed.7
7 Grip Smart asserts Kim’s notice of appeal was premature,
as it was filed after entry of the minute order for the hearing
granting the special motion to strike, but before written notice
13
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.” ’ ” (Bleavins v. Demarest (2011) 196 Cal. App. 4th
1533, 1539.) 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.” (§ 425.16, subd. (b)(1).) “The statute is to
‘be broadly construed to encourage continued participation in free
speech and petition activities.’ ” (Bleavins, supra, at p. 1539;
§ 425.16, subd. (a).)
“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
was given of the order or judgment entered. Given that the court
adopted its written tentative order at the conclusion of the
hearing, so there is no doubt regarding the ruling to be reviewed,
and Grip Smart identifies no prejudice from the premature notice
of appeal, “we do not believe any purpose would be served by
penalizing [Kim] for taking a premature appeal” and exercise our
discretion in favor of hearing the matter on the merits. (Boyer v.
Jensen (2005) 129 Cal. App. 4th 62, 69.)
14
meet its burden under the first prong of the anti-SLAPP test, the
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.” (Bonni v. St. Joseph
Health System (2017) 13 Cal.App.5th 851, 859, disapproved on
another ground in Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 892.)
“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.’ ” (Bonni v. St. Joseph Health System, supra, 13
Cal.App.5th at pp. 859-860.) 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.’ ” (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. (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal. 4th 260, 269, fn. 3.) In considering
the pleadings and supporting and opposing declarations, we do
not make credibility determinations or compare the weight of the
evidence. Instead, we accept the opposing party’s evidence as
15
true and evaluate the moving party’s evidence only to determine
if it has defeated the opposing party’s evidence as a matter of
law. (Ibid.)
B. Both Malicious Prosecution Claims Involved
Protected Conduct
The first step of the anti-SLAPP inquiry, whether Kim
made a threshold showing that the claims of Lee and Grip Smart
for malicious prosecution arose from protected activity, is not
disputed here. 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 . . . .” (§ 425.16, subd. (e)(1).) The plain
language of the anti-SLAPP statute dictates that 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.
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 734-
735.) Accordingly, our inquiry shifts to whether Lee and Grip
Smart satisfied their respective burdens to demonstrate a
probability of prevailing on the merits of their claims for
malicious prosecution. (Id. at p. 733; accord, § 425.16,
subd. (b)(1).)
C. Lee Did Not Demonstrate a Probability of Prevailing
on the Merits
“To prevail on a malicious prosecution claim, the plaintiff
must show that the prior 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 malice.” (Soukup v. Law Offices of
Herbert Hafif, supra, 39 Cal.4th at p. 292.)
16
The claims against Lee terminated when Kim, on behalf of
his client, voluntarily filed a second amended complaint that
dropped Lee as a defendant.8 “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.” (Contemporary Services Corp. v. Staff Pro Inc.
(2007) 152 Cal. App. 4th 1043, 1056.) While Kim acknowledges a
voluntary dismissal is presumed to be a favorable termination on
the merits (Sycamore Ridge Apartments LLC v. Naumann (2007)
157 Cal. App. 4th 1385, 1400), he argues Lee’s dismissal was
purely for technical reasons that did not reflect on the merits of
the Underlying Action. Specifically, Kim asserts that he dropped
Lee solely to “replace him with Grip Smart, who was the proper
tenant and the real party-in-interest.”
Kim initially filed suit seeking to hold Lee individually
liable. Kim dismissed Lee from the Underlying Action after
being provided information showing Lee was not a proper
defendant because he was not individually liable. It is plausible
to conclude, as the trial court did, that Kim dismissed Lee
because he believed liability still existed and rather than
pursuing alter ego or other claims to pierce the corporate veil and
hold Lee individually liable he decided instead to pursue Grip
Smart. It is also plausible to conclude, however, that Kim
dismissed Lee because the information Lee’s counsel provided
8 “ ‘[I]t has long been the rule that an amended complaint
that omits defendants named in the original complaint operates
as a dismissal . . . as to them.’ ” (Dye v. Caterpillar, Inc. (2011)
195 Cal. App. 4th 1366, 1382, fn. 11.)
17
showed Lee was not liable under any circumstances. While the
trial court’s inference that Lee’s dismissal did not reflect the
substantive merits was plausible, in the “summary-judgment-like
procedure” of a special motion to strike we do not weigh evidence
or resolve conflicting factual claims. (Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal. 4th 180, 192.) We further must draw
all reasonable inferences from the evidence in favor of Lee as the
plaintiff. (Tuchscher Development Enterprises, Inc. v. San Diego
Unified Port Dist. (2003) 106 Cal. App. 4th 1219, 1238-1239.)
Accordingly, Lee made the required prima facie showing that the
Underlying Action terminated in his favor on the merits.
While we part ways with the trial court on whether there
was prima facie evidence the Underlying Action was terminated
favorably on the merits, we agree with the end result of striking
Lee’s claim. To demonstrate a probability of prevailing on the
second prong of the anti-SLAPP analysis, Lee was required to
produce admissible evidence from which a trier of fact could find
in his favor, as to every element Lee needed to prove at trial to
establish malicious prosecution. (§ 426.16, subd. (b)(1); Jarrow
Formulas, Inc. v. La Marche, supra, 31 Cal.4th at p. 739.)
Lee takes the unfounded position that because the trial
court did not discuss either the lack of probable cause or malice
elements, he is likewise excused from addressing them. Although
we examine the trial court’s decision independently, the scope of
our review is limited to those issues that have been adequately
raised and supported in the appellant’s brief. (Reyes v. Kosha
(1998) 65 Cal. App. 4th 451, 466, fn. 6.) Lee’s burden on appeal
“includes the obligation to present argument and legal authority
on each point raised. This requires more than simply stating a
bare assertion that the judgment, or part of it, is erroneous and
18
leaving it to the appellate court to figure out why; it is not the
appellate court’s role to construct theories or arguments that
would undermine the judgment . . . .” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2018)
¶ 8:17.1, p. 8-6.) “ ‘When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as [forfeited].’ ” (In re
A.C. (2017) 13 Cal.App.5th 661, 672; accord, Stoll v. Shuff (1994)
22 Cal. App. 4th 22, 25, fn. 1.)
Lee’s briefing fails to address Kim’s alleged lack of probable
cause or malice, and contains no record cites or authorities
supporting any claim that he satisfied the required showing on
those elements. He has therefore forfeited any argument that he
made the requisite prima facie showing on the remaining two
elements of his malicious prosecution claim. At oral argument,
Lee contended Kim continued to prosecute claims lacking
probable cause after the lease was provided. Specifically, counsel
for Lee argued that, after the lease was provided but before Lee
was dismissed, Kim prepared and filed a report in the Underlying
Action in compliance with rule 26 of the Federal Rules of Civil
Procedure in which Kim continued to contend Lee was
individually liable. Even if we overlooked that this argument
was not raised in Lee’s briefing, neither the joint report itself nor
any evidence regarding the date it was prepared or filed is part of
the record on appeal. Accordingly, we cannot consider it. (See
Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th
434, 444, fn. 3.)9
9In light of Lee’s failure to make a prima facie showing he
would probably prevail on the merits of his claim, we need not
address Lee’s argument that the trial court erred in overruling
19
D. The Denial of Kim’s Motion to Strike Grip Smart’s
Complaint Was Proper
Kim makes the following claims of error with regard to the
denial of his special motion to strike Grip Smart’s malicious
prosecution claim: (1) the trial court improperly shifted the
burden to him to show probable cause for filing and maintaining
the Underlying Action; (2) the trial court erred in ruling Grip
Smart achieved a favorable termination on the merits; (3) Grip
Smart failed to demonstrate Kim lacked probable cause; and
(4) no evidence existed to support the trial court’s finding that
Kim pursued the Underlying Action with malice.
1. Burden of Proof
Kim contends the court “misapplied the burden shifting
provision” in section 425.16 by imposing upon him the obligation
to establish probable cause for Grip Smart’s malicious
prosecution claim. Kim points to the following statement in the
court’s order as evidencing this alleged error: “It was not [Grip
Smart’s counsel’s] obligation to prove a negative, it was Kim’s
obligation to establish probable cause to continue the law suit for
which apparently none existed.”
Kim has plucked this sentence from the court’s order
without context, and when the order is reviewed holistically it is
Lee’s objections to the evidence Kim submitted in support of his
special motion to strike. It was Lee, not Kim, that was required
to make the prima facie showing on the second prong. Given
Lee’s failure of proof, any error with regard to consideration of
evidence from the opposing party would not be prejudicial error
because it would not lead to a more favorable result. (People ex
rel. City of Santa Monica v. Gabriel (2010) 186 Cal. App. 4th 882,
887.)
20
plain there was no improper burden shifting. First, elsewhere in
its order the trial court correctly stated “[t]he second prong of the
anti-SLAPP analysis is to determine whether the plaintiff has
shown a probability of succeeding on his claim. [Citation.] The
plaintiff bears the burden, but need make only a prima facie
showing, ‘ “akin to that of a party opposing a motion for summary
judgment.” ’ ” Second, in making the statement cited by Kim, the
trial court was responding to Kim’s argument that counsel for
Grip Smart did not provide any evidence other than the lease
(such as sworn statements or declarations) until the time of
summary judgment. Read in context, the trial court’s statement
was responding to this argument from Kim about his conduct
after having been presented with the lease, and Kim’s obligation
to have probable cause to continue prosecuting a lawsuit. We see
no indication the court misunderstood who bore the burden on
the second prong of the anti-SLAPP analysis.
2. Favorable Termination on the Merits
To meet its prima facie burden, Grip Smart was first
required to show the Underlying Action terminated favorably in a
manner that reflected on the merits of the claim. The action
against Grip Smart terminated when the federal court granted
Grip Smart’s motion for summary judgment, finding Williams
lacked standing under article III of the United States
Constitution to pursue accessibility claims against Grip Smart.
The federal court found the evidence undisputed “that neither
Grip Smart nor its two shareholders have ever ‘been owners or
part owners of . . . the building in which [the Grip Smart] store is
located, or the parking lot in front of [the] store.’ [Citation.] In
fact, for all the years that Grip Smart has been a tenant at the
shopping center, ‘the Landlord/Owner (Mr. Yong O. Hwang, who
21
has the company, Yongo America, Inc.) has always controlled
exclusively the parking lots, sidewalks, driveways, and other
areas used in common by the tenants in that shopping center.’
[Citation.]” Because “the uncontroverted evidence demonstrates
Grip Smart does not own or control the parking lot where
Williams alleges she encountered barriers to her disability,” the
federal court found Williams’s injury was not traceable to Grip
Smart’s actions and she therefore lacked article III standing to
bring disability discrimination claims against Grip Smart.
Kim argued to the court below, as he does on appeal, that
the federal court’s ruling was a finding on jurisdictional grounds,
and was therefore not on the merits. The trial court disagreed,
noting “the summary judgment ruling makes clear that this was
not a mere technical dismissal for lack of jurisdiction,” and that
“[r]eading the ruling as a whole, ‘standing’ was not the only
problem and was used as [a] means to test causation and
damages.”
We agree with the trial court’s analysis. While California
law on standing generally asks only whether the plaintiff is the
“real party in interest,”10 standing in federal court involves
different considerations. Specifically, to establish a case or
controversy within the meaning of article III of the United States
Constitution, a plaintiff “must establish a ‘line of causation’
between [a] defendant[’s] action and [the plaintiff’s] alleged harm
10 See, e.g., Blumhorst v. Jewish Family Services of Los
Angeles (2005) 126 Cal. App. 4th 993, 1001 [person invoking
judicial process must have a real interest in the ultimate
adjudication, having suffered or about to suffer “ ‘ “[an] injury of
sufficient magnitude reasonably to assure that all of the relevant
facts and issues will be adequately presented” ’ ”].
22
that is more than ‘attenuated.’ ” (Maya v. Centex Corp. (9th Cir.
2011) 658 F.3d 1060, 1070.) In ADA cases like the Underlying
Action, this required Kim to demonstrate that his client suffered
an injury-in-fact, that the injury was traceable to Grip Smart’s
actions, and that the injury can be redressed by a favorable
decision. (Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2011)
631 F.3d 939, 946.)
Kim cites federal authority noting that when a party lacks
article III standing a court cannot reach the merits of the dispute
(Fleck and Associates v. Phoenix, City (9th Cir. 2006) 471 F.3d
1100, 1106, fn. 4), such that a dismissal for lack of article III
standing is not a disposition on the merits for purposes of things
like claim preclusion (Media Technologies Licensing, LLC v.
Upper Deck (Fed. Cir. 2003) 334 F.3d 1366, 1369-1370), or an
award of prevailing party attorneys’ fees under certain federal
statutes. (Molski v. Mandarin Touch Restaurant (C.D. Cal.,
Dec. 9, 2005, No. CV04-0450 ER) 2005 WL 3719631 at *1.) These
cases do not mean, however, that a dismissal for lack of article III
standing can never be a favorable termination on the merits for
purposes of a malicious prosecution claim. After all, voluntary
dismissal precludes litigation on the ultimate merits in the same
way as a dismissal for lack of article III standing and the law is
well-established such voluntary dismissals can, in some
circumstances, reflect on the substantive merits of the underlying
claim. It is therefore not the type of dismissal, but the reasons
for it, that must be examined to determine whether the dismissal
reflects on the merits. (Robbins v. Blecher (1997) 52 Cal. App. 4th
886, 892-894.)
Here, the article III standing test necessarily required the
federal court to assess the merits of the claims in the Underlying
23
Action, at least at the level necessary to determine if there was
evidence the alleged injury was traceable to Grip Smart’s actions.
The federal court found the alleged injury was not traceable to
Grip Smart’s actions because it was undisputed Grip Smart did
not own or control the parking lot where the alleged injury-in-fact
occurred. Because the Underlying Action terminated based on
the lack of any causal link between Grip Smart’s actions and the
alleged injury, the Underlying Action terminated in favor of Grip
Smart in a manner that reflected on the merits of the claim.
3. Probable Cause
Grip Smart was required next to show Kim lacked probable
cause to bring and maintain the Underlying Action. “The
question of probable cause is ‘whether, as an objective matter, the
prior action was legally tenable or not.’ [Citation.]” (Soukup v.
Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.) The
resolution of that question requires an objective determination of
the reasonableness of the underlying lawsuit based on the facts
known to the party bringing the suit. (Sheldon Appel Co. v.
Albert & Oliker (1989) 47 Cal. 3d 863, 878.) “ ‘A litigant will lack
probable cause for his action either if he relies upon facts which
he has no reasonable cause to believe to be true, or if he seeks
recovery upon a legal theory which is untenable under the facts
known to him.’ [Citation.]” (Soukup, supra, at p. 292.) The test
to be applied in evaluating the existence of probable cause is
“whether any reasonable attorney would have thought the claim
tenable.” (Sheldon Appel Co., supra, at p. 886.)
Probable cause may exist even where the underlying
lawsuit lacks merit. (Jarrow Formulas, Inc. v. LaMarche, supra,
31 Cal.4th at p. 743, fn. 13.) “ ‘Counsel and their clients have a
right to present issues that are arguably correct, even if it is
24
extremely unlikely that they will win . . . .’ ” (Sheldon Appel Co.
v. Albert & Oliker, supra, 47 Cal.3d at p. 885.) “Reasonable
lawyers [also] ‘can differ, some seeing as meritless suits which
others believe have merit, and some seeing as totally and
completely without merit suits which others see as only
marginally meritless.’ ” (Jarrow Formulas, Inc., supra, at p. 743,
fn. 13.) “Only those actions that any reasonable attorney would
agree are totally and completely without merit may form the
basis for a malicious prosecution suit. [Citations.]” (Zamos v.
Stroud (2004) 32 Cal. 4th 958, 970.)
In making an initial assessment of tenability, an attorney
is entitled to rely on the information provided by the client,
unless the attorney is on notice of specific factual errors in the
client’s version of events that render the claim untenable. (Swat-
Fame, Inc. v. Goldstein (2002) 101 Cal. App. 4th 613, 625-627,
disapproved on other grounds in Reid v. Google, Inc. (2010) 50
Cal. 4th 512, 532, fn. 7 and Zamos v. Stroud, supra, 32 Cal.4th at
p. 973.) Even when an attorney receives evidence that appears to
present a complete defense, the attorney may act reasonably in
going forward with the lawsuit if there is a possibility that the
defense will, on further evidence or examination, “prove less than
solid.” (Zamos, supra, at p. 970, fn. 9.) However, an attorney
who has probable cause to commence a lawsuit may be liable for
malicious prosecution if he or she continues to prosecute the
action after learning it is not supported by probable cause. (Id. at
p. 973.)
Grip Smart does not contend that Kim lacked probable
cause to initiate the action. Instead, Grip Smart takes issue with
Kim’s continued prosecution of the Underlying Action after
November 2016, when Grip Smart’s counsel notified Kim “of the
25
proper names of the proper defendants, along with the actual
terms identifying who controlled the parking lot where
Williams’[s] alleged discrimination occurred.”
Kim admits he received a copy of Grip Smart’s lease on
November 4, 2016, and does not dispute that the lease placed all
responsibility for upkeep and maintenance of common areas—
including the parking lot where Williams allegedly encountered a
lack of accessible parking—on Yongo. Kim also acknowledges, by
citing to them in his brief, that the Code of Federal Regulations
provide that “[b]oth the landlord who owns the building that
houses a place of public accommodation and the tenant who owns
or operates the place of public accommodation are public
accommodations subject to the requirements of [the ADA]. As
between the parties, allocation of responsibility for complying with
the obligations of [the ADA] may be determined by lease or other
contract.” (28 C.F.R. § 36.201(b) (2016), italics added.)
Nonetheless, citing Botosan v. Paul McNally Realty (9th
Cir. 2000) 216 F.3d 827 (Botosan) as well as an earlier district
court case (Botosan v. Fitzhugh (S.D.Cal. 1998) 13 F. Supp. 2d
1047), Kim argues the terms of the lease had no bearing on the
question of probable cause since “the allocation of responsibility
between the landlord and a tenant by the lease is effective only
‘[a]s between the parties’ and has no effect on the rights of third
parties.” In Botosan, a landlord argued it could not be held liable
for ADA violations on leased property because responsibility for
all ADA compliance had been shifted to its tenants vis-à-vis their
leases. (Botosan, supra, at p. 832.) The Ninth Circuit examined
the language and history of the ADA, and concluded the ADA
imposes concurrent obligations on landlords and tenants, and
that the landlord, as an owner of the property, should be liable
26
for ADA compliance even on property leased to, and controlled by,
a tenant. (Id. at pp. 832-834.)
The problem with Kim’s reliance on Botosan is that it
focuses on landlord responsibilities, and ignores a later Ninth
Circuit opinion relieving tenants like Grip Smart from liability
under the ADA in cases exactly like the present one. In Kohler v.
Bed Bath & Beyond of California, LLC (9th Cir. 2015) 780 F.3d
1260, the plaintiff, a paraplegic who required the use of a
wheelchair, alleged he encountered architectural barriers both
inside the defendant’s store and in the parking lot of the
shopping center in which the store was located. (Id. at p. 1262.)
The district court granted summary judgment in favor of the
defendant, concluding the store “did not ‘own, lease or operate’
the shopping center parking lot, and therefore was not liable for
any ADA barriers occurring there.” (Ibid.) On appeal, the
plaintiff argued the defendant’s lease, which defined the parking
lot as a “ ‘Common Area’ ” and further stated that the “ ‘Landlord
shall operate, maintain, repair and replace the Common Areas
. . . [and] shall comply with all applicable Legal Requirements,’
was an attempt to contract away its ADA liability in violation of
[the Ninth Circuit’s] decision in [Botosan].” (Id. at p. 1264.)
The appellate court characterized the plaintiff’s reliance on
Botosan as “misplaced . . . . The ADA imposes compliance
obligations on ‘any person who owns, leases (or leases to), or
operates a place of public accommodation.’ (42 U.S.C.
§ 12182(a).) The existence of a lease that delegates control of
parts of that property to a tenant has no effect on the landlord’s
preexisting obligation, because under the ADA, a party is
prevented from doing anything ‘through contractual, licensing, or
other arrangements’ that it is prevented from doing ‘directly.’
27
[Citation.] Here, in contrast, [the defendant store], like any
tenant, has no preexisting control of a property. Absent a lease,
it lacks any legal relationship at all to the property. That it takes
control of a part of the property, subject to a lease, imposes ADA
compliance obligations on it [only] for that part of the property it
controls . . . .” (Kohler v. Bed Bath & Beyond of California, LLC,
supra, 780 F.3d at p. 1264.) The Ninth Circuit expressed concern
that the plaintiff’s reading of Botosan would create the very
situation in which Grip Smart found itself, and “would impose
upon a single tenant—e.g., the cell phone kiosk operating in a
shopping center’s lobby—liability for ADA violations occurring at
the far end of the shopping center’s parking lot; such an outcome
serves no purpose other than to magnify the potential targets for
an ADA lawsuit.” (Ibid.)
While Kim’s belief regarding Grip Smart’s potential
liability may have been tenable at the inception of the
Underlying Action, Grip Smart introduced sufficient evidence for
purposes of a special motion to strike that Kim’s belief was no
longer defensible in November 2016 after Kim was provided a
copy of the operative lease. Other than his inapposite citation to
Botosan, Kim points to nothing else that would defeat Grip
Smart’s claim as a matter of law. Grip Smart therefore made the
requisite showing that continued prosecution after November
2016 was done without probable cause. (Soukup v. Law Offices of
Herbert Hafif, supra, 39 Cal.4th at p. 292; accord, Arcaro v. Silva
& Silva Enterprises Corp. (1999) 77 Cal. App. 4th 152, 158-159
[“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
28
information affording an inference such evidence can be
obtained”].)
4. Malice
Grip Smart was finally required to make a showing
sufficient to support the element of malice. (Sheldon Appel Co. v.
Albert & Oliker, supra, 47 Cal.3d at p. 874.) “ ‘The “malice”
element . . . relates to the subjective intent or purpose with which
the defendant acted in initiating the prior action. [Citation.] The
motive of the defendant must have been something other than
that of . . . the satisfaction in a civil action of some personal or
financial purpose. [Citation.] The plaintiff must plead and prove
actual ill will or some improper ulterior motive.’ [Citations.]
Malice ‘may range anywhere from open hostility to indifference.
[Citations.] Malice may also be inferred from the facts
establishing lack of probable cause.’ [Citation.]” (Soukup v. Law
Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.)
“[M]alice can be inferred when a party continues to
prosecute an action after becoming aware that the action lacks
probable cause.” (Daniels v. Robbins (2010) 182 Cal. App. 4th 204,
226.) The Daniels court concluded malice formed after the filing
of a complaint is actionable. “ ‘Continuing an action one
discovers to be baseless harms the defendant and burdens the
court system just as much as initiating an action known to be
baseless from the outset.’ [Citation.]” (Ibid.)
Kim contends the trial court made no finding regarding
malice. He appears to have overlooked the trial court’s express
finding that Kim had no probable cause to continue prosecuting
the action, “and given the allegations by [Grip Smart] that when
it confronted Kim with the facts [Grip Smart] was only
29
threatened with a further demand for money, the court can reach
but on[e] conclusion, the matter was pursued with malice.”
We agree that Grip Smart met its burden to show malice.
In determining whether malice exists, we must accept as true the
evidence favorable to the plaintiff. (Barker v. Fox & Associates
(2015) 240 Cal. App. 4th 333, 348.) Further, a reviewing court
may consider not only facts supported by direct evidence, but also
facts reasonably inferable from the evidence. (Oasis West Realty,
LLC v. Goldman (2011) 51 Cal. 4th 811, 822.) The facts on which
the trial court relied to find malice were sufficient to meet the
showing required to defeat a special motion to strike.
DISPOSITION
The order granting Kim’s special motion to strike Lee’s
complaint in case No. B287923 is affirmed. The parties are to
bear their own costs in that appeal.
The order denying Kim’s special motion to strike Grip
Smart’s complaint in case No. B289837 is affirmed. Grip Smart
is awarded its costs on appeal.
WEINGART, J.*
We concur:
ROTHSCHILD, P. J. CHANEY, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
30
Filed 10/30/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TAE SEOG LEE, B287923
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC673852)
v.
JONG YUN KIM,
Defendant and Respondent. ORDER CERTIFYING
OPINION FOR PUBLICATION
GRIP SMART PRINTING, INC., B289837
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC692010)
v.
JONG YUN KIM,
Defendant and Appellant.
THE COURT*:
Good cause appearing, it is ordered that the opinion in the above
entitled matter, filed October 2, 2019, be published in the official reports.
________________________ _____________________ _____________________
*ROTHSCHILD, P. J. CHANEY, J. WEINGART, J.**
** Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
2