Jiang v. Cai CA4/1 ( 2021 )

Filed 8/11/21 Jiang v. Cai CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DANNING JIANG, D078846
Plaintiff and Appellant,
(Super. Ct. No. 19CV341417)
v.
ORDER MODIFYING OPINION
JAMES CAI et al., AND DENYING REHEARING
Defendants and Respondents. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on July 30, 2021, be modified
as follows:
1. On page 26, the last sentence that starts on line 3 with “Further,” is
modified to read as follows:
Further, as prevailing defendants in an anti-SLAPP appeal, Cai
and SAC Attorneys LLP are entitled to their attorney fees to the
extent they have incurred recoverable attorney fees.
There is no change in the judgment.
The petition for rehearing is denied.
McCONNELL, P. J.
Copies to: All parties
Filed 7/30/21 Jiang v. Cai CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DANNING JIANG, D078846
Plaintiff and Appellant,
v. (Super. Ct. No. 19CV341417)
JAMES CAI et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Santa Clara, Mary E.
Arand, Judge. Affirmed.
Law Offices of Danning Jiang, Danning Jiang and Fei Liu for Plaintiff
and Appellant.
SAC Attorneys and Brian A. Barnhorst for Defendants and
Respondents.
I
INTRODUCTION
Plaintiff Danning Jiang appeals an order granting a special motion to
strike filed by defendants James Cai and SAC Attorneys LLP (SAC) pursuant
to the anti-SLAPP statute (Code Civ. Proc., § 425.16).1 He argues the trial
court erred: (1) in permitting the defendants to file their anti-SLAPP motion
more than 60 days after service of the complaint; (2) in finding the
defendants’ conduct was not illegal as a matter of law; and (3) in finding he
did not establish a probability of prevailing on his abuse of process, malicious
prosecution, and unfair business practices claims.
We reject these contentions. Therefore, we affirm the order granting
the defendants’ anti-SLAPP motion.
II
BACKGROUND
A
The Underlying Action
In 2013, a printed circuit board (PCB) company called TX Trading &
TX Solutions, Inc. (TX) entered into a cooperation agreement with a business
partner, Shenzhen Edadoc Technology Co., Ltd. (Shenzhen), to promote the
design, fabrication, assembly, and parts sourcing of PCBs. The cooperation
agreement was written in Chinese.
The parties subsequently retained Jiang—a San Jose-based attorney—
to draft a joint venture agreement in English. Jiang prepared the joint
venture agreement, the expressed purpose of which was to “create [a] Joint
Venture solely to develop and operate PCB design, manufacture, material
procurement, and marketing services.” Shenzhen and TX’s owners executed
the joint venture agreement at a meeting in January 2014. The joint venture
later fell apart for reasons that are not clear from the record.
1 Further undesignated statutory references are to the Code of Civil
Procedure.
2
In 2016, a complaint in interpleader was filed against the joint venture
and TX’s owners to determine the claimants’ interests in certain disputed
funds. Two cross-complaints were filed in the interpleader action, referred to
hereafter as the underlying action. Jiang filed one cross-complaint on behalf
of the joint venture against TX and its owners. Cai—a San Jose-based
attorney and partner at the SAC law firm—filed the other cross-complaint on
behalf of TX and its owners against the joint venture, Shenzhen, Shenzhen’s
owners, and Jiang.
Cai’s cross-complaint asserted misrepresentation and unfair
competition claims against Jiang.2 It alleged Jiang misrepresented the
contents of the joint venture agreement to TX’s owners, who did not speak
English as a first language. It alleged Jiang told TX’s owners the joint
venture agreement was exactly the same as the prior Chinese-language
cooperation agreement, when in fact it superseded the cooperation agreement
and contained new terms that were disadvantageous to TX’s owners.
Further, it alleged Jiang presented the joint venture agreement to TX’s
owners for the first time at the January 2014 meeting, which caused them to
execute the agreement “hastily and on the spot ….” TX’s owners signed
verifications attesting under penalty of perjury that they reviewed the cross-
complaint and the facts contained therein were true.
After the cross-complaint was filed, Jiang wrote a letter to Cai denying
the allegations against him. He stated the signatories to the joint venture
agreement negotiated for a month before signing. Jiang demanded that Cai
“immediately withdraw the cross-complaint against [him],” (bolding omitted)
2 The cross-complaint also stated causes of action against Jiang for
breach of fiduciary duty and negligence. Those causes of action were omitted
from amended versions of the cross-complaint.
3
or he would seek sanctions against Cai and his clients for maintaining a
frivolous action. Jiang stated he would also seek damages from Cai and his
clients for malicious prosecution and intentional interference with
contractual relations. It is unclear from the record whether Cai responded to
the letter. In any event, he did not dismiss his clients’ cross-complaint.
In February 2017, Jiang deposed TX’s owners. During the depositions,
TX’s owners admitted Jiang emailed a draft of the joint venture agreement to
them prior to the January 2014 meeting. These admissions contradicted one
of the allegations from the cross-complaint they filed against Jiang.
Notwithstanding his clients’ admissions, Cai did not dismiss or seek
leave to amend the cross-complaint. Instead, he propounded written
discovery on Jiang and deposed Jiang and his clients.
In July 2017, Cai was substituted out as legal counsel due to a
potential conflict of interest with his clients. In January 2018, the parties
mediated their dispute. They executed a confidential settlement agreement
and filed a joint request to dismiss the underlying action in its entirety. The
court granted their dismissal request on March 29, 2018.3
B
The Current Action
On January 18, 2019, Jiang filed a complaint against Cai and SAC for
abuse of process and wrongful use of civil proceedings (malicious
3 The terms of the settlement agreement are not apparent from the
record and were not disclosed to Cai. Cai served one of TX’s owners with a
subpoena for the production of business records; however, Jiang moved to
quash service of the subpoena. The trial court granted Jiang’s motion to
quash service of the subpoena based on the defendants’ failure to personally
serve TX’s owner with the subpoena.
4
prosecution). The complaint was personally served on the defendants on
February 4, 2019.
For the abuse of process claim, Jiang alleged the defendants filed the
cross-complaint on behalf of their former clients, took Jiang’s deposition, and
propounded discovery against Jiang to “intimidate and harass” him. He
alleged the defendants “failed to investigate” their former clients’ allegations,
even after he “warned” them and asked them to “drop the false claims.”
For the malicious prosecution claim, Jiang alleged the defendants
“were actively involved in bringing and continuing” the underlying action,
which “ended” in his favor. He alleged no reasonable person would have
believed there were reasonable grounds to bring the lawsuit and the
defendants acted “primarily for a purpose other than succeeding on the
merits of the claim[s].”
On January 30, 2019, Jiang amended his complaint to add a claim
against the defendants for unfair business practices under the Unfair
Competition Law (UCL) (Bus. & Prof. Code, § 17200). The UCL claim alleged
the defendants engaged in unlawful conduct in violation of four Penal Code
provisions: (1) section 118, subdivision (a) (perjury); (2) section 127
(subornation of perjury); (3) section 182 (conspiracy); and (4) section 138
(witness bribery). The amended complaint was served on the defendants by
mail on February 11, 2019.
C
The Anti-SLAPP Motion
On April 10, 2019, defense counsel sent an email to Jiang stating the
defendants intended to file an anti-SLAPP motion and would seek ex parte
relief to “file a longer memo” in support of the forthcoming motion. He asked
5
whether Jiang intended to appear at the ex parte proceeding. Jiang did not
reply to the email prior to the ex parte proceeding.
The following day, the defendants filed an ex parte application
requesting permission from the court: (1) to file an enlarged brief for the
anti-SLAPP motion; and (2) to file the anti-SLAPP motion more than 60 days
after service of the amended complaint. Jiang did not oppose the ex parte
application or appear at the ex parte proceeding. The court granted the
request and ruled the defendants could file an anti-SLAPP motion with an
enlarged memorandum more than 60 days after service of the amended
complaint—specifically, on or before April 30.
Soon after, Jiang filed an ex parte application to vacate the court order
extending the defendants’ filing deadline. He argued the defendants
procured the extension through “surprise, mistake, or fraud” because they
failed to give Jiang proper notice that they would be requesting an extension
of their deadline to file an anti-SLAPP motion. There is no reporter’s
transcript for the hearing on Jiang’s ex parte application; therefore, we have
no record of what transpired during the proceeding. However, we do know
the court denied Jiang’s ex parte application in relevant part. In doing so,
the court used a proposed order filed by Jiang and modified it in two respects:
(1) by crossing out a provision that stated the court would strike its prior
order extending the defendants’ filing deadline; and (2) by adding the
following statement in handwritten text: “[Jiang] has reserved [his] right to
object to the timing of the motion.”
On April 16, 71 days after service of the original complaint and 64 days
after service of the amended complaint, the defendants filed the anti-SLAPP
motion. They argued Jiang’s claims were based on protected statements and
6
writings made before a judicial proceeding or in connection with an issue
under consideration by a judicial body.
The defendants also argued Jiang could not establish a probability of
success for any of his claims. They asserted the litigation privilege codified in
Civil Code section 47, subdivision (b) barred the abuse of process and UCL
claims. They asserted the abuse of process claim was time-barred and, in any
event, Jiang failed to plead a legally sufficient claim. They argued Jiang
failed to plead, and could not prove, any of the elements of the malicious
prosecution claim. Finally, they asserted Jiang failed to plead, and could not
prove, any of the unlawful conduct underpinning the UCL claim.
Together with the anti-SLAPP motion, the defendants filed a
declaration from Cai. Cai averred he believed in good faith that his former
clients’ claims were meritorious, in part, because they verified the cross-
complaint. He averred his former clients admitted during their depositions
that they received a copy of the joint venture agreement before signing it, but
they did not make any other concessions that cast doubt on the veracity of the
cross-complaint. Further, Cai averred he propounded discovery after his
former clients’ depositions to “determine the truth about the conflicting
allegations.” Cai denied harboring malice or ill will towards Jiang, filing or
maintaining the cross-complaint for an improper purpose or with an ulterior
motive, or forming any agreement with his former clients to commit perjury.
Jiang opposed the anti-SLAPP motion. He argued the motion was
untimely as to the abuse of process and malicious prosecution claims because
he alleged those claims in the original complaint, yet the defendants did not
file the anti-SLAPP motion until 71 days after service of the original
complaint.
7
Next, Jiang argued the defendants’ conduct was illegal as a matter of
law and, therefore, it fell outside the protection of the anti-SLAPP statute
under the principles discussed in Flatley v. Mauro (2006) 39 Cal.4th 299(Flatley). Without citation to evidence, Jiang argued the defendants’ conduct
was illegal because the defendants “aided their clients to commit [a] perjury”
and “conspired with [their] clients to distort the truth.”
Finally, Jiang argued there was a probability he would prevail on his
claims. He claimed the litigation privilege did not apply because the
defendants knew their former clients’ allegations were false when they filed
the cross-complaint and propounded discovery on him. He asserted the
defendants acted with an ulterior motive—an element of an abuse of process
claim—because they hoped the cross-complaint would expose him to “State
Bar disciplinary actions” and “force [him] to resign” from the underlying
action. Without citation to evidence, Jiang argued the underlying action was
resolved in his favor—an element of the malicious prosecution claim—
because “[i]n the end, [the defendants’ former] clients voluntarily dropped the
claims” against him. Further, without citation to evidence, he argued he
could prevail on his UCL claim because the defendants “conspired with
[their] clients to commit perjury” and “attempted to bribe” him.
Together with the opposition brief, Jiang filed a declaration in which he
denied the allegations that were made against him in the underlying action.
He averred the defendants were “hostile” to him and had an “evil intent to
frame [him] up” because he and the defendants were opposing counsel in
“various matters,” including the underlying action. Further, Jiang averred
that Cai attempted to bribe him during the underlying action. He alleged Cai
offered to dismiss him as a cross-defendant if he persuaded his clients to
mediate their case with the defendants’ former clients. Jiang averred this
8
“poisonous” offer would have “tainted [him] as a witness,” so he declined the
offer.
Jiang also filed objections to the evidence submitted with the anti-
SLAPP motion. Of significance here, Jiang asserted relevance, hearsay, and
personal knowledge objections to two categories of averments made in Cai’s
declaration. The first set of averments purported to summarize the events
leading to the execution of the joint venture agreement. The second set of
averments stated TX’s owners (Cai’s former clients) “continued to insist” that
many of the allegations from the cross-complaint were true—e.g., that Jiang
misrepresented the contents of the joint venture agreement—even though
they received the joint venture agreement prior to the January 2014 meeting.
The defendants filed a reply brief in support of the anti-SLAPP motion.
On August 8, the trial court granted the anti-SLAPP motion. It
declined to rule on Jiang’s evidentiary objections in relevant part, reasoning
that the objections were “not material in resolving issues raised by the
motion.” Then, the court rejected Jiang’s claim that the anti-SLAPP motion
was untimely. It noted the defendants filed ex parte requests for permission
to file their anti-SLAPP motion after the 60-day deadline and “[t]he Court,
finding good cause, granted the requests thus allowing Defendants to file
their motion on or before April 30, 2019.” Because the defendants filed their
anti-SLAPP motion on April 16, the court found the anti-SLAPP motion was
“timely filed” and would be “addressed on its merits.”
The court found the acts giving rise to Jiang’s claims—the filing of a
cross-complaint, the propounding of written discovery, and the taking of
Jiang’s deposition—were protected because they were made “in connection
with an issue under consideration or review by a … judicial body ….”
(§ 425.16, subd. (e)(2).) The court rejected Jiang’s assertion that the
9
defendants’ conduct was illegal as a matter of law. It reasoned the
defendants did not concede the illegality of their conduct and it was not “clear
what crime” the defendants allegedly committed. To the extent Jiang argued
the defendants aided or abetted a conspiracy to commit perjury, the court
noted the defendants disputed Jiang’s contention and submitted evidence
suggesting Cai believed his litigation activities were justified. According to
the court, the existence of a factual dispute precluded a finding of illegality as
a matter of law.
Finally, the court found Jiang did not establish a probability of success
for his claims. It found the litigation privilege barred the abuse of process
and UCL claims. It found Jiang did not plead a legally sufficient abuse of
process claim because he did not allege the defendants had an ulterior
motive. For the malicious prosecution claim, the court found Jiang: (1) did
not establish that the underlying action terminated in his favor; (2) did not
plead a legally sufficient claim because he did not plead the element of
malice; and (3) did “not address the element of damages ….” Finally, the
court found Jiang did not plead a legally sufficient UCL claim because there
were “no underlying facts alleged in the [complaint] to support any of the
violations of the Penal Code ….”4
Based on these findings, the court granted the anti-SLAPP motion and
struck the complaint.
4 The court expressly declined to rule on the defendants’ assertion that
the abuse of process claim was untimely.
10
III
DISCUSSION
A
Legal Standards
“Enacted by the Legislature in 1992, the anti-SLAPP statute is
designed to protect defendants from meritless lawsuits that might chill the
exercise of their rights to speak and petition on matters of public concern.
[Citations.] To that end, the statute authorizes a special motion to strike a
claim ‘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.’ ” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 883–884 (Wilson).)
“A court evaluates an anti-SLAPP motion in two steps. ‘Initially, the
moving defendant bears the burden of establishing that the challenged
allegations or claims “aris[e] from” protected activity in which the defendant
has engaged. [Citations.] If the defendant carries its burden, the plaintiff
must then demonstrate its claims have at least “minimal merit.” ’ [Citation.]
If the plaintiff fails to meet that burden, the court will strike the claim.”
(Wilson, supra, 7 Cal.5th at p. 884.)
“The defendant’s first-step burden is to identify the activity each
challenged claim rests on and demonstrate that that activity is protected by
the anti-SLAPP statute. A ‘claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability is asserted.’
[Citation.] To determine whether a claim arises from protected activity,
courts must ‘consider the elements of the challenged claim and what actions
by the defendant supply those elements and consequently form the basis for
11
liability.’ [Citation.] Courts then must evaluate whether the defendant has
shown any of these actions fall within one or more of the four categories of
‘ “act[s]” ’ protected by the anti-SLAPP statute.” (Wilson, supra, 7 Cal.5th at
p. 884.) Of relevance here, the anti-SLAPP statute protects “any written or
oral statement or writing made ... in connection with an issue under
consideration or review by a … judicial body ….” (§ 425.16, subd. (e).)
The second step of the anti-SLAPP analysis has been described as a
summary judgment-like procedure. (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater Union).) The
court determines whether “ ‘the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to sustain a favorable
judgment.’ ” (Ibid.) The plaintiff “ ‘may not rely solely on its complaint, even
if verified; instead, its proof must be made upon competent admissible
evidence.’ ” (Ibid.) The defendant may submit evidence in support of its
motion. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)
However, “ ‘[t]he court does not weigh evidence or resolve conflicting factual
claims.’ ” (Sweetwater Union, at p. 940.) Rather, the court “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.” ’ ” (Ibid.)
We review an order granting an anti-SLAPP motion de novo.
(Sweetwater Union, supra, 6 Cal.5th at p. 940.)
B
Timeliness
An anti-SLAPP motion “may be filed within 60 days of the service of
the complaint or, in the court’s discretion, at any later time upon terms it
deems proper.” (§ 425.16, subd. (f).) A court has “considerable discretion” in
12
deciding whether to permit the filing of an anti-SLAPP motion more than 60
days after service of the complaint. (Platypus Wear, Inc. v. Goldberg (2008)
166 Cal.App.4th 772, 787.) In its exercise of discretion, the court should
consider whether the filing would be consistent with the purpose of the anti-
SLAPP statute—i.e., whether it would ensure the prompt resolution of a
lawsuit that impinges on a defendant’s free speech rights. (Id. at p. 776.)
In the present case, it is undisputed the court extended the time for the
defendants to file their anti-SLAPP motion until April 30, 2019. However,
Jiang claims the court thereafter “reserv[ed] the timing issue” for
consideration at a later date—effectively nullifying its prior extension order—
while ruling on Jiang’s ex parte request to strike the court order extending
the defendants’ filing deadline. According to Jiang, the court then
misconstrued its own nullification order when it later found the anti-SLAPP
motion was timely simply because the defendants filed their motion prior to
the previously-extended, now-nullified deadline of April 30.
In the order denying Jiang’s ex parte application, the court crossed out
the portion of Jiang’s proposed order that would have stricken the filing
extension for the anti-SLAPP motion and added a handwritten statement
that reads, “Plaintiff has reserved its right to object to the timing of the
motion.” (Italics added.) This statement means just what it says—Jiang
reserved his right to object to the timeliness of the motion—i.e., he did not
waive his timeliness objections. It did not grant Jiang’s ex parte application
to strike the order extending the filing deadline. It did not state the court
had reconsidered its extension of the filing deadline. And it did not state the
court would later reassess its extension of the filing deadline. On this
record—which is all we have, given the absence of a reporter’s transcript—we
13
are not persuaded the trial court ever nullified or reconsidered its prior order
extending the defendants’ deadline to file their anti-SLAPP motion.
Even if the court nullified its order extending the defendants’ filing
deadline, and then subsequently erred by misconstruing its own nullification
order, the asserted error did not produce a miscarriage of justice. (Cal. Const.
art. VI, § 13 [“No judgment shall be set aside … unless … the court shall be of
the opinion that the error complained of has resulted in a miscarriage of
justice.”].) The defendants filed their anti-SLAPP motion just 71 days after
service of the complaint—a mere 11 days after the default 60-day filing
deadline expired. Very little motion practice and virtually no discovery had
occurred.5 Further, Jiang did not argue he suffered any prejudice as a result
of the brief 11-day delay. Given these facts, Jiang has not persuaded us that
it is reasonably probable the trial court would have denied the anti-SLAPP
motion on timeliness grounds but for the alleged error.
C
Anti-SLAPP Step One
The trial court found Jiang’s claims were based on acts performed in
connection with an issue under consideration or review by a judicial body.
5 After the defendants filed the anti-SLAPP motion, Jiang moved to
conduct discovery to oppose the anti-SLAPP motion (§ 425.16, subd. (g)). The
trial court denied Jiang’s motion in a lengthy order analyzing the sufficiency
of the pleadings, the viability of Jiang’s claims, and the relevance of the
requested discovery.
On appeal, Jiang argues in passing that the court erred when it denied
his request to conduct discovery. By failing to provide substantive analysis or
legal support for his argument, Jiang has forfeited his challenge to the order
denying his motion to conduct discovery. (In re A.C. (2017) 13 Cal.App.5th
661, 672 [“If an argument in an appellate brief is supported by only an
opinion or argument of appellant’s counsel without ‘citation to any recognized
legal authority,’ that argument may be deemed waived for failure to present
supporting substantive legal analysis.”].)
14
(§ 425.16, subd. (e)(2).) The anti-SLAPP statute generally protects such acts.
(Id., subd. (b)(1).) Jiang does not challenge the court’s finding; therefore, we
will assume without deciding the trial court’s finding was correct.
Nonetheless, Jiang argues the court erred in finding the defendants satisfied
their burden under the first step of the anti-SLAPP analysis. In particular,
he claims the defendants’ conduct was illegal as a matter of law and thus fell
outside the protection of the anti-SLAPP law.
The anti-SLAPP statute does not apply to “speech or petition rights if,
as a matter of law, that activity was illegal and by reason of the illegality not
constitutionally protected.” (Flatley, supra, 39 Cal.4th at p. 316.) The
“exception for illegal activity is very narrow and applies only in undisputed
cases of illegality. (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1478
(Zucchet).) Illegality as a matter of law exists only if the defendant concedes
its illegal conduct or the evidence conclusively establishes the illegality.
(Flatley, at p. 316; see City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424
[“The defendant must concede the point, or the evidence conclusively
demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the
first step.”].) “If, however, a factual dispute exists about the legitimacy of the
defendant’s conduct, it cannot be resolved within the first step but must be
raised by the plaintiff in connection with the plaintiff’s burden to show a
probability of prevailing on the merits.” (Flatley, at p. 316.) For the illegality
exception to apply, the defendants’ conduct must be criminal and not merely
violate a statute. (Klem v. Access, Ins. Co. (2017) 17 Cal.App.5th 595, 610.)
Jiang claims the defendants engaged in two types of illegal conduct.
For the first type, Jiang alleges the defendants aided and abetted perjury
(Pen. Code, § 118, subd. (a)), suborned perjury (id., § 127), and conspired to
commit perjury (id., § 182), when they knowingly prepared, filed, and asked
15
their clients to verify a false cross-complaint. The defendants do not concede
this illegal conduct. Therefore, the illegality exception applies only if the
evidence conclusively demonstrates the illegality. It does not do so.
Together with the anti-SLAPP motion, the defendants filed a
declaration in which Cai averred he in good faith believed his former clients’
claims were meritorious (paragraphs 15 and 34), did not know the cross-
complaint included false allegations (paragraph 24), and did not form an
agreement with his former clients to verify false pleadings (paragraph 36).
At the least, this creates disputed factual issues concerning the defendants’
knowledge and intent. This disputed factual issue precludes a finding of
illegality as a matter of law.6 (See Dziubla v. Piazza (2020) 59 Cal.App.5th
140, 150–153 [disputed factual issues precluded application of illegality
exception]; Zucchet, supra, 229 Cal.App.4th at pp. 1479–1480 [same].)
Jiang claims the defendants engaged in a second form of illegal conduct
as well. He argues Cai offered to dismiss him as a cross-defendant in the
underlying action if, in exchange, he persuaded his clients to mediate their
dispute with the defendants’ former clients. According to Jiang, this conduct
constituted witness bribery under Penal Code section 138, subdivision (a).
6 As previously noted, Jiang objected to two portions of Cai’s
declaration—(1) its summary of the alleged facts giving rise to the cross-
complaint (paragraph 8); and (2) its statements that the defendants’ former
clients insisted various allegations in their cross-complaint were true
(paragraphs 13 and 14). The trial court declined to rule on these objections.
On appeal, Jiang contends the court erred in declining to rule on the
objections because, had it done so, it would have sustained them and ruled
the defendants’ conduct was illegal as a matter of law. We do not decide
whether the court erred in declining to rule on the objections because other
portions of Cai’s declaration—which are discussed above and were
unchallenged in the trial court—established a factual dispute regarding the
legality of the defendants’ conduct. Therefore, any error in failing to rule on
the evidentiary objections was harmless.
16
The defendants do not concede, and the evidence does not conclusively
establish, the alleged witness bribery. A defendant violates Penal Code
section 138, subdivision (a) if he or she bribes or offers to bribe a person on
the “understanding or agreement that the person shall not attend upon any
trial or other judicial proceeding,” or attempts through a bribery offer “to
dissuade any person from attending upon any trial or other judicial
proceeding ….” Even if Cai made the alleged proposal at issue (a point the
defendants do not concede), there is no suggestion that he made the alleged
proposal to dissuade Jiang from attending a trial or judicial proceeding.
Thus, the evidence of a dismissal offer—while it may raise potential conflict
of interest concerns—does not conclusively establish witness bribery.7
In sum, the defendants do not concede illegal conduct and the evidence
does not conclusively demonstrate illegal conduct. Therefore, the trial court
properly found that the illegality exception does not apply.
D
Anti-SLAPP Step Two
At the second step of the anti-SLAPP analysis, Jiang bore the burden of
establishing, through competent and admissible evidence, that he had a
probability of prevailing on his claims. (Sweetwater Union, supra, 6 Cal.5th
at p. 940.) The court found Jiang did not satisfy this burden with respect to
any of his claims. In the following section, we will address each of Jiang’s
claims in the order he alleged them in his amended complaint.
7 Jiang claims Cai’s purported offer to dismiss Jiang from the underlying
action constituted commercial bribery in violation of Penal Code
section 641.3, subdivision (d). Jiang did not make this argument in the trial
court. Therefore, the argument is forfeited. (Holden v. City of San Diego
(2019) 43 Cal.App.5th 404, 419 (Holden).)
17
1
Abuse of Process Claim
“The common law tort of abuse of process arises when one uses the
court’s process for a purpose other than that for which the process was
designed.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “To succeed in
an action for abuse of process, a litigant must establish that the defendant
(1) contemplated an ulterior motive in using the process, and (2) committed a
willful act in the use of the process not proper in the regular conduct of the
proceedings.” (Id. at p. 1057.)
Jiang alleged the defendants committed the tort of abuse of process
based, at least in part, on the following acts: (1) the defendants’ filing of a
cross-complaint against Jiang; (2) the defendants’ propounding of written
discovery requests on Jiang; and (3) the defendants’ taking of Jiang’s
deposition. The trial court found Jiang’s abuse of process claim did not have
minimal merit, among other reasons, because the defendants’ acts were
protected by the litigation privilege set forth in Civil Code section 47,
subdivision (b). We agree with the trial court.
The litigation privilege “generally protects from tort liability any
publication made in connection with a judicial proceeding.” (Jacob B. v.
County of Shasta (2007) 40 Cal.4th 948, 952 (Jacob B.).) It “ ‘applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by
litigants or other participants authorized by law; (3) to achieve the objects of
the litigation; and (4) that [has] some connection or logical relation to the
action.’ [Citation.] The privilege ‘is not limited to statements made during a
trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards.’ ” (Action Apartment Association, Inc. v. City of Santa Monica
(2007) 41 Cal.4th 1232, 1241.) The privilege “is absolute in nature, applying
18
‘to all publications, irrespective of their maliciousness.’ ” (Ibid.; see Jacob B.,
at p. 955 [“It is absolute and applies regardless of malice.”].) “ ‘The principal
purpose of [the litigation privilege] is to afford litigants and witnesses
[citation] the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions.’ ” (Action Apartment, at
p. 1241.) To achieve this purpose, the litigation privilege is given a broad
interpretation. (Ibid.; Jacob B., at p. 955.)
Jiang does not dispute that the litigation privilege applies to the
defendants’ filing of the cross-complaint, propounding of written discovery,
and deposition questioning. (See Rubin v. Green (1993) 4 Cal.4th 1187, 1195
[privilege applied to filing of pleadings]; Twyford v. Twyford (1976) 63
Cal.App.3d 916, 924 [privilege applied to request for admission]; Younger v.
Solomon (1974) 38 Cal.App.3d 289, 301 [privilege applied to interrogatory];
Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 82–83, 85 [privilege applied to
questions at deposition].) Therefore, we will assume without deciding that
these acts were subject to the litigation privilege and the court properly
granted the anti-SLAPP motion to the extent Jiang’s abuse of process claim
was based on these acts.
Nonetheless, Jiang contends the litigation privilege does not preclude
his abuse of process claim in its entirety. He argues the claim was based, at
least in part, on certain noncommunicative acts of the defendants. In
particular, he argues his claim was based on the defendants’ failure to act
after it became apparent the cross-complaint was meritless—namely, their
failure to amend the cross-complaint, dismiss the cross-complaint, or
withdraw as legal counsel in the underlying action.
Jiang did not assert his argument concerning noncommunicative acts
in the trial court. Therefore, the argument is forfeited. (Holden, supra, 43
19
Cal.App.5th at p. 419.) Because Jiang has asserted no other arguments
concerning the applicability of the litigation privilege, Jiang’s forfeiture
provides a sufficient basis for us to affirm the trial court’s finding that the
litigation privilege barred his abuse of process claim.
In any event, Jiang’s noncommunicative conduct argument is meritless.
“ ‘Because the litigation privilege protects only publications and
communications, a “threshold issue in determining the applicability” of the
privilege is whether the defendant’s conduct was communicative or
noncommunicative.’ [Citations.] However, ‘if the gravamen of the action is
communicative, the litigation privilege extends to noncommunicative acts
that are necessarily related to the communicative conduct .... Stated another
way, unless it is demonstrated that an independent, noncommunicative,
wrongful act was the gravamen of the action, the litigation privilege
applies.’ ” (Jacob B., supra, 40 Cal.4th at p. 957.)
The gravamen of Jiang’s abuse of process claim was that the
defendants filed a cross-complaint containing false allegations (and
thereafter propounded discovery regarding those allegations). As previously
noted, it is undisputed that the filing of the cross-complaint was
communicative and protected by the litigation privilege. Although Jiang
attempts to evade the litigation privilege by highlighting the defendants’
supposed inaction after the cross-complaint was filed—i.e., their failure to
withdraw from the case or amend or dismiss the cross-complaint—those acts
are necessarily related to the precedent act of filing the cross-complaint. In
short, the very reason the defendants purportedly needed to withdraw from
the underlying action, amend the cross-complaint, or dismiss the cross-
complaint was because they filed the false cross-complaint in the first place.
20
Because the filing of the cross-complaint was the gravamen of Jiang’s
abuse of process claim, the litigation privilege not only applied to that
communicative act; it extended to related noncommunicative acts and barred
Jiang’s abuse of process claim in its entirety. (Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4th 1467, 1492 (Feldman) [“Clearly, the
litigation privilege applies to the tort causes of action of the cross-complaint
to the extent that the gravamen of the cause of action is the assertedly
tortious filing of the [lawsuit]”]; accord Nelson v. Tucker Ellis, LLP (2020) 48
Cal.App.5th 827, 846–847 [litigation privilege applied to defendant’s alleged
failures to act because they were necessary corollaries to defendants’
communicative act].)
In view of our conclusion that the litigation privilege precluded the
abuse of process claim, we do not consider the trial court’s alternative bases
for finding that the abuse of process claim lacked minimal merit.
2
Malicious Prosecution Claim
The tort of malicious prosecution has three elements. The plaintiff
must establish there was an underlying litigation that was “(i) initiated or
maintained by, or at the direction of, the defendant, and pursued to a legal
termination in favor of the malicious prosecution plaintiff; (ii) initiated or
maintained without probable cause; and (iii) initiated or maintained with
malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775–776.)
The trial court found Jiang did not demonstrate a probability of success
on his malicious prosecution claim for several reasons. Pertinent here, it
found Jiang did not establish, with at least minimal merit, that the
underlying action terminated in his favor. The court reasoned Jiang did not
attempt to explain why the termination of the underlying action was
21
favorable to him and, further, the existence of a settlement agreement
“raise[d] doubts as to whether the termination of the [u]nderlying [a]ction
was favorable” to him. Once again, we agree with the trial court.
“ ‘ “The theory underlying the requirement of favorable termination is
that it tends to indicate the innocence of the accused ….” ’ ” (Siebel v.
Mittlesteadt (2007) 41 Cal.4th 735, 741.) “To determine whether a party has
received a favorable termination, we consider ‘ “the judgment as a whole in
the prior action....” [Citation.]’ [Citation.] Victory following a trial on the
merits is not required. Rather, ‘ “the termination must reflect the merits of
the action and the plaintiff’s innocence of the misconduct alleged in the
lawsuit.” ’ ” (Ibid.) “ ‘If the termination does not relate to the merits—
reflecting on neither innocence of nor responsibility for the alleged
misconduct—the termination is not favorable in the sense it would support a
subsequent action for malicious prosecution.’ ” (Sycamore Ridge Apartments,
LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1399 (Sycamore Ridge).)
Generally, “[a] voluntary dismissal is presumed to be a favorable
termination on the merits ….” (Sycamore Ridge, supra, 157 Cal.App.4th at
p. 1400.) “ ‘The [presumption] arises from the natural assumption that one
does not simply abandon a meritorious action once instituted.’ ” (Ibid.)
However, “[a] dismissal resulting from negotiation, settlement, or consent is
generally not deemed a favorable termination of the proceedings.” (Minasian
v. Sapse (1978) 80 Cal.App.3d 823, 827, fn. 4; see Casa Herrera, Inc. v.
Beydoun (2004) 32 Cal.4th 336, 342 [listing dismissal pursuant to a
settlement as an example of a non-favorable termination]; Coleman v. Gulf
Ins. Group (1986) 41 Cal.3d 782, 794, fn. 9 [“termination of an action by
compromise or settlement has been held to be an insufficient basis for a
malicious prosecution action”].) “ ‘ “[T]he dismissal reflects ambiguously on
22
the merits of the action as it results from the joint action of the parties, thus
leaving open the question of defendant’s guilt or innocence. [Citation.]”
[Citation.] After all, “[t]he purpose of a settlement is to avoid a
determination of the merits.” ’ ” (Dalany v. American Pacific Holding Corp.
(1996) 42 Cal.App.4th 822, 827.)
In his opening brief, Jiang asserts the underlying action terminated in
his favor because the defendants’ former clients voluntarily and unilaterally
dismissed their cross-complaint. The record disproves this unfounded claim.
In Jiang’s anti-SLAPP briefing, as well as many other filings, Jiang conceded
the parties to the underlying action—including Jiang himself—negotiated
and executed a settlement agreement resulting in the termination of the
underlying action. Jiang even filed a declaration from himself and his former
client (Shenzhen’s owner) confirming that the parties mutually resolved their
dispute. Further, the request for dismissal from the underlying litigation
was a joint request to dismiss the entire underlying action, not a unilateral
request to dismiss the defendants’ former clients’ cross-complaint. Thus, the
uncontroverted evidence established that the underlying action was
terminated as a result of a mutually negotiated settlement.
In his reply brief, Jiang urges us to ignore the parties’ settlement and
conclude that, in effect, the defendants’ former clients unilaterally dismissed
their cross-complaint. Jiang emphasizes that he never asserted any personal
claims against the defendants’ former clients in the underlying action and,
therefore, he “did not have any claim[s] to give up” as part of the settlement.
This argument is forfeited because it was not made in the opening brief.
(Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)
Regardless, the mere fact that Jiang did not have pending claims to
“give up” does not mean the settlement lacked consideration. A negotiated
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settlement—which undoubtedly occurred here—can take many forms. The
dismissal of pending claims is merely one type of consideration that can form
the basis of a settlement, the existence of which can preclude a favorable
termination finding in a malicious prosecution case. (Villa v. Cole (1992) 4
Cal.App.4th 1327, 1338 [“[T]he actual amount or subjective value of the
consideration given by [a party] as part of the settlement agreement … is
immaterial to any consideration of whether [a malicious prosecution plaintiff]
can show a termination of the lawsuit in his favor.”]; Ludwig v. Superior
Court (1995) 37 Cal.App.4th 8, 27 (Ludwig) [“A simple waiver of costs is alone
enough to disqualify a settlement as a ‘favorable termination.’ ”].)
Admittedly, we are somewhat in the dark about the particulars of the
settlement agreement that resolved the underlying action. Jiang—the only
party with access to the settlement agreement—has not disclosed the terms
of the settlement to the court and instead has described it in deliberately
vague and evasive ways. For instance, in the declaration Jiang filed with his
anti-SLAPP opposition brief, he cryptically averred the defendants’ former
clients claimed $2 million in damages, yet during settlement discussions
lowered this amount to a demand of “$150,000, later on to $120,000, and
finally to …[.] The action was eventually amicably resolved.”
But this ambiguity does not inure to Jiang’s benefit. At the second
anti-SLAPP step, the burden rested on Jiang to establish, through competent
and admissible evidence, a probability that he could prove a favorable
termination. He did not meet this burden. Jiang’s evidence showed the
underlying action was terminated by way of a mutual settlement and a joint
request to dismiss the entire case—a resolution at odds with the very notion
of a favorable termination. Further, Jiang presented no evidence suggesting
the settlement reflected on the merits of the underlying action. On this
24
record, we cannot say that Jiang carried his burden of establishing a
probability of success on the element of a favorable termination. (Citizens of
Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 127–128 [settlement
precluded malicious prosecution plaintiff from establishing probability of
success on element of favorable termination]; Ludwig, supra, 37 Cal.App.4th
at pp. 26–30 [same].) Because Jiang did not demonstrate a probability of
success on the favorable termination element, the trial court properly struck
Jiang’s malicious prosecution claim.
3
UCL Claim
The trial court found Jiang did not establish a probability of success on
his UCL claim because the litigation privilege barred the claim.
Alternatively, the court found Jiang did not establish a probability of success
because Jiang failed to plead a legally sufficient UCL claim.
We do not consider whether Jiang pleaded a legally sufficient UCL
claim because Jiang has not established that the court erred in finding that
the litigation privilege barred his claim. To the extent Jiang’s UCL claim
was based on the conduct underlying his abuse of process claim, the litigation
privilege precluded the UCL claim for the same reasons discussed earlier in
this opinion. (Feldman, supra, 160 Cal.App.4th at p. 1498.) To the extent his
UCL claim was based on other conduct (such as the defendants’ alleged
attempt to bribe him), he has not presented any substantive legal analysis
regarding the applicability of the litigation privilege. Therefore, Jiang has
waived his challenge to the trial court’s finding concerning the litigation
privilege. (In re A.C., supra, 13 Cal.App.5th at p. 672.)
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IV
DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Cai and SAC
Attorneys LLP are entitled to their appellate costs. (Cal. Rules of Court, rule
8.278(a)(2).) Further, as prevailing defendants in an anti-SLAPP appeal, Cai
and SAC Attorneys LLP are entitled to their attorney fees. (RGC Gaslamp,
LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 438.)
McCONNELL, P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
26