Filed 10/6/26 Escamilla v. Perry CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DANIEL ESCAMILLA,
Plaintiff and Appellant, G065817
v. (Super. Ct. No. 30-2023-
01321288)
MICHAEL RAYMOND PERRY
et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County,
Deborah C. Servino, Judge. Affirmed.
Law Offices of Seth M. Goldberg and Seth M. Goldberg for
Plaintiff and Appellant.
The Perry Law Firm, Matthew J. Bertolucci and Larry M.
Roberts for Defendants and Respondents.
Daniel Escamilla appeals from the trial court’s order granting
Michael Perry, Larry Roberts, and the Perry Law Firm’s (Perry Firm) anti-
SLAPP motion striking Escamilla’s abuse of process cause of action.
Escamilla argues the court erred, first, in accepting the late filed motion and,
second, on the merits of the motion. We disagree and affirm the court’s order.
FACTS AND PROCEDURAL HISTORY
This is the third appeal in connection with the litigation between
these parties. The two prior nonpublished opinions are Perry v. Escamilla
(Dec. 16, 2022, G060957) (Perry I) and Perry v. Escamilla (May 27, 2025,
G063857) (Perry II). The issues raised in this appeal overlap considerably
with those addressed in Perry II. While the facts underlying the litigation are
explained in additional detail in Perry II, we summarize the pertinent facts
and background again here.
The origin of this litigation was an explosion at a restaurant in
which one of the owners was badly injured. The Perry Firm had for a long
time represented the owners of the restaurant. Escamilla had an intermittent
working relationship with the owners in various capacities. After the
explosion, Escamilla attempted to take over the owners’ media and legal
response to it. Perry asserted Escamilla was engaged in the unauthorized
practice of law and, ultimately, Perry was able to gain control of the owners’
media and legal response from Escamilla.
Escamilla sued Perry and the Perry Firm for, among other
things, slander, based on the accusation of the unauthorized practice of law.
Perry and the Perry Firm responded with a cross-complaint for intentional
interference with economic and contractual relations. Escamilla, in turn, filed
an anti-SLAPP motion (not the one at issue in this appeal), which the trial
court granted, dismissing Perry’s and the Perry Firm’s cross-complaint. A
different panel of this court affirmed the dismissal of the cross-complaint in
Perry I, supra, G060957. The panel concluded Perry and the Perry Firm had
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not shown a probability of prevailing on the merits because they had not been
harmed by Escamilla’s conduct. (Ibid.) If anything, they stood to receive
additional attorney fees through sorting out the dispute.
Escamilla then filed the complaint in this action against Perry,
Christopher Hoo, Roberts, and the Perry Firm (collectively, Perry II
defendants) asserting claims for malicious prosecution and abuse of process
(a SLAPPback action) (§ 425.18). The malicious prosecution claim was based
on the filing of the dismissed cross-complaint which was the subject of Perry
I. The abuse of process claim was premised on a subpoena duces tecum the
Perry II defendants served on the State Bar of California seeking records
related to Escamilla’s licensure and disciplinary history.
In response to the SLAPPback action, the Perry II defendants
filed an anti-SLAPP motion of their own. The trial court granted that motion,
concluding that Escamilla had failed to demonstrate a probability of
prevailing because he could not show the underlying cross-complaint lacked
probable cause, and he could not show the Perry II defendants had acted with
malice. Escamilla appealed and a panel of this court reversed in part and
affirmed in part in Perry II, supra, G063857.
In Perry II the panel concluded, as to Perry, Roberts, and the
Perry Firm, their anti-SLAPP motion was untimely.1 (Perry II, supra,
G063857.) As to the abuse of process claim, the panel reversed and remanded
to the trial court to consider whether to exercise its discretion to accept the
untimely anti-SLAPP motion. (Ibid.) The panel also indicated “[i]f the court
1 The panel in Perry II found the anti-SLAPP motion filed by Hoo
was timely as to the claims against him and the panel affirmed the trial
court’s dismissal of the abuse of process claim against Hoo. (Perry II, supra,
G063857.)
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elects to do so, it may reinstate its prior order granting the motion as to the
abuse of process claim.”2 (Ibid.)
Despite the remand to the trial court to consider the untimeliness
of Perry, Roberts, and the Perry Firm’s anti-SLAPP motion, the panel
considered the merits of Escamilla’s abuse of process claim and agreed with
the court that Escamilla failed to show a probability of prevailing. (Perry II,
supra, G063857.) Escamilla argued the anti-SLAPP motion was barred as a
matter of law under section 425.18 which includes a prohibition on anti-
SLAPP motions in SLAPPback actions where the underlying lawsuit was
illegal. The panel concluded the subpoena, which was the basis of the abuse
of process claim, could not support an illegality argument because the
illegality prohibition bars anti-SLAPP motions only where the “‘cause of
action’” giving rise to the SLAPPback was illegal as a matter of law. (Ibid.) A
discovery subpoena is not a cause of action and therefore not a proper basis
for the illegality defense.
On remand after Perry II, the trial court issued a minute order
stating it “exercises its discretion to accept the late-filing” and cited section
425.18, subdivision (d)(1)(B). The court further stated the anti-SLAPP motion
“is granted in part and denied in part” for the reasons set forth in its prior
2 Notwithstanding the order for remand to the trial court for
consideration of the anti-SLAPP motion’s timeliness, the panel in Perry II
addressed the merits as to the malicious prosecution claims against not only
Hoo but the other Perry II defendants. (Perry II, supra, G063857.) The panel
concluded the trial court erred in dismissing Escamilla’s malicious
prosecution claims and the judgment in this respect was reversed as to the
Perry II defendants. (Ibid.)
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order and struck the abuse of process claim from the complaint as to Perry,
Roberts, and the Perry Firm.3 Escamilla initiated the present appeal.
DISCUSSION
Escamilla largely reargues the issues which were raised and
resolved in Perry II. His arguments do not distinguish Perry, Roberts, and
the Perry Firm factually or legally from Hoo and our decision affirming the
trial court’s order granting the anti-SLAPP motion as to the abuse of process
claim against Hoo. Consequently, for the same reasons as we did in Perry II,
we affirm the trial court’s order.
I.
THE TRIAL COURT PROPERLY EXERCISED ITS
DISCRETION TO CONSIDER THE UNTIMELY MOTION
As an initial matter, Escamilla argues again that his abuse of
process claim did not amount to a SLAPPback and therefore the anti-SLAPP
motion was subject to a shorter 60-day deadline. We reject this argument as
the panel did in Perry II, supra, G063857.
Code of Civil Procedure section 425.18 governs special motions to
strike filed in response to a SLAPPback, which is defined as “any cause of
action for malicious prosecution or abuse of process arising from the filing or
maintenance of a prior cause of action that has been dismissed pursuant to a
special motion to strike under Section 425.16.”4 (§ 425.18, subd. (b)(1).) An
anti-SLAPP motion to strike a SLAPPback must be filed within 120 days of
3 On remand, the trial court also vacated its order granting the
Perry II defendants’ motion to strike the malicious prosecution claims against
Escamilla and denied the motion.
4 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
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service of the complaint, or, at the court’s discretion, within six months.
(§ 425.18, subd. (d)(1)(A)–(B).) By contrast, a standard anti-SLAPP motion
must be filed within 60 days of service, though the court has discretion to
accept a later filing. (§ 425.16, subd. (f).)
In his complaint, Escamilla expressly alleged: “This action is a
SLAPPback action under . . . section 425.18 because each cause of action for
malicious prosecution arises from the filing or maintenance of a prior cause of
action that has been dismissed pursuant to a special motion to strike under
[s]ection 425.16.” By this language, Escamilla identified the entire action—
not just specific causes of action—as a SLAPPback. Although the basis for
that designation may have been the malicious prosecution claims, Escamilla
cannot represent to the Perry II defendants that the entire lawsuit is a
SLAPPback and then later seek to impose a shorter filing deadline by
narrowing that designation. Accordingly, as in Perry II, we consider
Escamilla estopped from denying that the entire action is subject to the
SLAPPback framework. (See Evid. Code, § 623 [“Whenever a party has, by
his own statement or conduct, intentionally and deliberately led another to
believe a particular thing true and to act upon such belief, he is not, in any
litigation arising out of such statement or conduct, permitted to contradict
it”].) The 120-day deadline under section 425.18 therefore applies.
Turning then to whether the trial court properly exercised its
discretion to consider the late motion, Escamilla argues the court did not.
Escamilla contends the court did not issue any findings, set any terms, and
did not permit Escamilla the opportunity to contest acceptance of the late
filing. In support of these arguments, Escamilla continues to cite section
425.16 as governing and, in particular, requiring the court to set “terms”
when accepting a late filing. (See § 425.16, subd. (f) [requiring a motion to be
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filed within 60 days or, “in the court’s discretion, at any later time upon
terms it deems proper”].) Escamilla also relies on Newport Harbor Ventures,
LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, a decision
which addresses the “proper interpretation of section 425.16, subdivision (f)”
(id. at p. 646).
As we have already explained, section 425.18 governs, not section
425.16. (§ 425.18, subd. (d)(1)(A)–(C).) Section 425.18 distinguishes between
accepting a late motion filed after 120 days, but still within six months of
service of the complaint, and one filed after 120 days and beyond six months.
As to the former, section 425.18 provides the late “special motion to strike a
SLAPPback shall be filed[¶] . . . [¶] . . . [a]t the court’s discretion, within six
months of the service of the complaint.” (§ 425.18, subd. (d)(1)(B).) By
contrast, beyond six months, the statute provides the late motion may be filed
only in “extraordinary cases due to no fault of the defendant and upon
written findings of the court stating the extraordinary case and
circumstance.” (§ 425.18, subd. (d)(1)(C).) Section 425.18 therefore includes
no obligation to impose “terms” and requires no findings where, as here, the
motion was filed within six months. (§ 425.18, subd. (d)(1)(B).)
In arguing the trial court failed to provide reasons for its exercise
of discretion, Escamilla also does not acknowledge or address the reasons
provided the court in Perry II where the panel of this court found there
“certainly are grounds in this case that would support the court permitting a
late filing.” (Perry II, supra, G063857.) Further, other than a general
argument on the importance of deadlines and procedure, Escamilla does not
set forth any grounds to conclude the issue should have been decided
differently had he been afforded an opportunity to contest acceptance of the
late motion. We infer the court was aware of the reasons set forth in Perry II
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and “we may affirm on any ground supported by the record.” (Smyth v.
Berman (2019) 31 Cal.App.5th 183, 196.) Accordingly, we conclude the trial
court did not err when it accepted the late motion filed by Perry, Roberts, and
the Perry Firm.
II.
THE ILLEGALITY PROVISION DOES NOT APPLY
Escamilla again seeks to rely on Business and Professions Code
section 6060.25, which protects the confidentiality of certain information in
State Bar admission records. He contends the subpoena for his State Bar file
violated this statute and was therefore illegal. We reject this argument for
the same reason we did as to the claims against Hoo in Perry II.
Section 425.18 includes a narrow prohibition on anti-SLAPP
motions in SLAPPback actions where the underlying lawsuit was illegal.
Subdivision (h) provides: “A special motion to strike may not be filed against
a SLAPPback by a party whose filing or maintenance of the prior cause of
action from which the SLAPPback arises was illegal as a matter of law.” (§
425.18, subd. (h).) For the illegality prohibition to apply, the illegality must
either be undisputed or conclusively established as a matter of law. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285.) Perry, Roberts,
and the Perry Firm dispute that their conduct was unlawful, and thus we
may apply the illegality prohibition only if Escamilla’s evidence established
that their maintenance of the underlying conduct was unlawful as a matter of
law.
Contrary to Escamilla’s contention, the language of Business and
Professions Code section 6060.25 does not establish illegality as a matter of
law. Rather, it states only the information protected “shall be confidential
and shall not be disclosed pursuant to any state law.” (Id., § 6060.25, subd.
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(a).) It prohibits disclosure, not the act of seeking information. Indeed, many
categories of information (e.g., privileged communications) are protected from
disclosure, but routinely implicated by subpoenas and other discovery
requests. The proper practice is to object to the request. Importantly, the
subpoena did not solely seek information protected from disclosure. It also
sought, for example, moral character records which, while confidential, may
be disclosed in response to a lawfully issued subpoena. (Id., § 6060.2.) This
alone renders the illegality bar inapplicable because the entire subpoena was
not illegal as a matter of law. (See Hutton v. Hafif (2007) 150 Cal.App.4th
527, 543 [Bus. & Prof. Code, § 6094 prohibiting lawsuits based on
communications with the State Bar did not trigger illegality prohibition
because the party “was not sued solely for complaining to the State Bar”].)
Nevertheless, even assuming the subpoena was improper, the
illegality prohibition bars anti-SLAPP motions only where the “cause of
action” giving rise to the SLAPPback was illegal as a matter of law. (§ 425.18,
subd. (h), italics added.) A discovery subpoena is not a cause of action. And
section 6060.25 has no bearing on the legal viability of Perry, Roberts, and
the Perry Firm’s underlying tortious interference causes of action.
Accordingly, the statute cannot support application of the illegality
prohibition.
III.
ESCAMILLA DID NOT SHOW A PROBABILITY OF
PREVAILING ON THE ABUSE OF PROCESS CLAIM
Escamilla reasserts his argument that because the subpoena
improperly sought information protected from disclosure, he therefore met
his burden to establish a probability of success on the abuse of process claim.
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We reject this argument now as to Perry, Roberts, and the Perry Firm, as we
did in Perry II as to Hoo.
The anti-SLAPP statute provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) “Section 425.16, subdivision (b)(1) requires the
court to engage in a two-step process. First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action
is one arising from protected activity. . . . If the court finds such a showing
has been made, it then determines whether the plaintiff has demonstrated a
probability of prevailing on the claim.” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Here, as in Perry II, there is no dispute Escamilla’s SLAPPback
action arises out of protected activity. We thus proceed to the second step,
which is whether Escamilla has established a probability of prevailing on his
claim of abuse of process.
In the second step of the anti-SLAPP analysis, “the burden shifts
to the plaintiff . . . to establish a probability it will prevail on the claim.
[Citation.] The plaintiff need only state and substantiate a legally sufficient
claim. [Citation.] The plaintiff’s evidence is accepted as true; the defendant’s
evidence is evaluated to determine if it defeats the plaintiff’s showing as a
matter of law.’” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420.)
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“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. [Citations.] It has been ‘interpreted broadly to encompass the
entire range of “procedures” incident to litigation.’ [Citation.] [¶] ‘[T]he
essence of the tort [is] . . . misuse of the power of the court; it is an act done in
the name of the court and under its authority for the purpose of perpetrating
an injustice.’ [Citation.] 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.” (Rusheen v.
Cohen (2006) 37 Cal.4th 1048, 1056–1057.)
Escamilla argues the subpoena sought by the Perry II defendants
sought protected information as evidenced by the trial court’s grant of the
motion to quash such. The trial court, however, quashed the subpoena
because it found it overbroad. Specifically, the court reasoned that while the
Perry II defendants had a legitimate interest in rebutting Escamilla’s slander
claim by showing he engaged in the unauthorized practice of law, the
subpoena exceeded that purpose by seeking personal and sensitive records
related to Escamilla’s application to the State Bar that went beyond what
was necessary for their defense. This procedural history is not evidence the
Perry II defendants utilized the subpoena for a purpose other than that for
which it was designed.
On its face, the subpoena had a legitimate objective. Escamilla
claimed defendants committed slander by saying he was engaged in the
unauthorized practice of law. One obvious defense to that claim is truth, i.e.,
for defendants to prove that Escamilla was, in fact, engaged in the
unauthorized practice of law. (See Gilbert v. Sykes (2007) 147 Cal.App.4th 13,
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27 [“There can be no recovery for defamation without a falsehood”].) A
subpoena for State Bar records to establish that Escamilla was not a licensed
attorney at the time was likely to produce documents relevant to this issue.
Escamilla’s focus on the lack of merit to the cross-complaint misses the point
of the relevance of the subpoena to Escamilla’s slander allegations.
The fact the subpoena was overbroad does not, in and of itself,
suggest an improper purpose. As we discussed in Perry II, discovery requests
are commonly drafted broadly, and for good reason: the propounding party
often does not know what records exist, and so the request is cast in broad
terms. This should not, in the ordinary course, subject the propounding party
to personal liability. After the trial court quashed the subpoena, there is no
evidence in the record that the Perry II defendants pursued it any further,
nor that the subpoena was part of a pattern of discovery harassment. In this
context, the fact that the subpoena was ruled to be overbroad does not
present even prima facie evidence the Perry II defendants acted with an
ulterior motive. And, other than highlighting the possible personal animosity
between the parties, Escamilla does not point to any other evidence of an
improper purpose. Accordingly, the court did not err in granting the anti-
SLAPP motion as to the abuse of process claim asserted against Perry,
Roberts, and the Perry Firm.
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DISPOSITION
The order striking the abuse of process claim against Michael
Perry, Larry Roberts, and the Perry Law Firm is affirmed. Michael Perry,
Larry Roberts, and the Perry Law Firm shall recover their costs.
MOTOIKE, P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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