Glavinovich v. Naqvi





















Filed 3/4/13 Glavinovich v. Naqvi CA4/3









>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.









IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

JOHN L. GLAVINOVICH, Plaintiff and Appellant, v. SYED NAQVI, Defendant and Respondent.

G046722 (Super. Ct. No. 30-2011-00516101) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Steven L. Perk, Judge.
Affirmed.

Voss, Silverman &
Braybrooke, David C. Voss, Jr., and Andrew T. Schoppe for Plaintiff and
Appellant.

Horwitz, Cron &
Armstrong and John R. Armstrong for Defendant and Respondent.

* * *

This
is one of a number of appeals from judgments after orders granting defense
motions pursuant to Code of Civil Procedure section 425.16,href="#_ftn1" name="_ftnref1" title="">[1]
the anti-SLAPP statute,href="#_ftn2"
name="_ftnref2" title="">[2] in
a malicious prosecution action by
plaintiff John L. Glavinovich. All of
the anti-SLAPP motions relate to the same underlying case, Sweidan v. >Orange> >County>
Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-00122142).

In
this case, Glavinovich appeals the trial court’s decision to grant the
anti-SLAPP motion filed by defendant Syed Naqvi. Because we find that Glavinovich failed to
meet his burden to establish that his malicious prosecution case against Naqvi
had even a minimal chance of prevailing on the merits, we affirm.

I

FACTS

A. The Underlying Case

Orange
County Physicians Investment Network (OCPIN) was a Nevada
limited liability company formed by Glavinovich and approximately 19 others,
including Naqvi. Its primary purpose was
as a holding company for its members’ funds to be used for the acquisition of
stock in a company called Integrated Healthcare Holdings, Inc. (Integrated). This company, an investment entity, purchased
four hospitals in the Orange County
area from Tenet Healthcare Corporation.


In
April 2008, Glavinovich was elected as a manager of OCPIN, along with Anil V.
Shah, who had held that position since 2005.
According to Glavinovich’s complaint, acquiring Integrated stock was a
“complicated and difficult affair,” resulting in separate litigation that is
apparently still arguing.

In
early 2009, certain members of OCPIN (not including Naqvi) began an effort to
remove Shah and Glavinovich as managers.
Glavinovich later alleged such actions were illegitimate and interrupted
OCPIN’s business operations. The
dissident members (the OCPIN plaintiffs) then instituted the underlying case
(the OCPIN litigation).href="#_ftn3"
name="_ftnref3" title="">[3]

The
OCPIN litigation began as a derivative action alleging breach of fiduciary duty
and seeking declaratory and injunctive
relief. According to Glavinovich, a
demurrer was sustained. The first
amended complaint, which included Naqvi as a plaintiff, reframed the case as a
direct action on behalf of the OCPIN against Shah, Glavinovich, and a number of
other individuals. The first amended
complaint, running over 100 pages, alleged 21 causes of action against
Glavinovich and other defendants, including Shah and various accountants and
attorneys. The first amended complaint
alleged causes of action against Glavinovich for breach of fiduciary duty, constructive
fraud, injunction, professional negligence, accounting, and declaratory relief.

Although
the disposition of the first amended complaint as to Glavinovich is not
completely clear, a second amended complaint followed. That complaint stated that “[a]ll allegations related to GLAVINOVICH
are, upon information and belief . . . .”
Prior to a hearing on demurrers and motions to strike the second amended
complaint, in February 2010, Naqvi, at his request, was dismissed from the case
as a plaintiff. Glavinovich’s demurrer
to the second amended complaint was subsequently overruled in part and
sustained in part, with leave to amend granted. Ultimately, after discovery and multiple
further rounds of pleadings, Glavinovich’s demurrer to the sixth amended
complaint was sustained as to all causes of action. The
court noted that the OCPIN plaintiffs had not “com[e] even close” to stating a
cause of action against him.



B. The Malicious Prosecution
Case

After
he was dismissed from the OCPIN litigation, Glavinovich filed the instant
action for malicious prosecution against the OCPIN plaintiffs and their
attorneys in the underlying case. The
first amended complaint, filed in December 2011, alleged malicious prosecution
and intentional infliction of emotional distress.

In
response, the defendants, including Naqvi, filed anti-SLAPP motions. Naqvi argued there was no evidence of actual
or implied malice sufficient to sustain a claim for malicious prosecution, and
that he had relied on the advice of counsel in both joining and dismissing
himself from the underlying case. In opposition,
Glavinovich asserted that “Naqvi is no less liable than his fellow OCPIN
Defendants . . . for having initat[ed] this whole affair without probable
cause.”

The
court ruled on motions by both Hewitt Wolensky LLPhref="#_ftn4" name="_ftnref4" title="">[4]
and Naqvi on the same day. In granting
the motion as to the law firm, the court concluded that Glavinovich had not
established lack of probable cause or malice with respect to the malicious
prosecution claim, and also found that the intentional infliction of distress
cause of action was barred on multiple grounds.href="#_ftn5" name="_ftnref5" title="">[5] The court used the same reasoning as to
Naqvi, adding also that Naqvi had demonstrated a good faith reliance on the
advice of counsel, which amounted to probable cause. Glavinovich now appeals.

II

DISCUSSION

>A. Statutory Framework

The
anti-SLAPP statute states: “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
purpose of the anti-SLAPP statute is to dismiss meritless lawsuits designed to
chill the defendant’s free speech rights at the earliest stage of the
case. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.) The statute is to
be “construed broadly.” (§ 425.16, subd.
(a).)

Section
425.16, subdivision (e), specifies the type of acts included within the
statute’s ambit. An “‘act in furtherance of a person’s right of petition or
free speech . . . in connection with a public issue’
includes: (1) any written or oral
statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written
or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd. (e).)

Courts engage in a
two-step process to resolve anti-SLAPP motions.
“‘First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to
demonstrate that the act or acts of which the plaintiff complains were taken
“in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,” as
defined in the statute. (§ 425.16, subd.
(b)(1).)’” (Jarrow Formulas, Inc. v.
LaMarche, supra, 31 Cal.4th at p.
733.)

“‘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.’ [Citation.]”
(Jarrow Formulas,> Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.)
To establish the requisite probability of prevailing, the plaintiff must
state and substantiate a legally sufficient claim (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1122-1123), thereby demonstrating his case has at least minimal merit. (Cole v. Patricia A. Meyer & Associates,
APC (2012)
206 Cal.App.4th 1095, 1105 (Cole).) “Put another way, the plaintiff ‘must
demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.’ [Citations.]”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821.) Glavinovich “must produce evidence that would be admissible at
trial. [Citation.]” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,
212.)

On
appeal, we “review an order granting an anti-SLAPP motion de novo,
applying the same two-step procedure as the trial court. [Citation.]”
(Cole, supra, 206 Cal.App.4th
at p. 1105.) In conducting our review, “[w]e consider ‘the
pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.’
[Citation.] However, we neither
‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence
favorable to the plaintiff [citation] and evaluate the defendant’s evidence
only to determine if it has defeated that submitted by the plaintiff as a href="http://www.mcmillanlaw.com/">matter of law.’ [Citation.]”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3 (Soukup).)

The
first step of the anti-SLAPP analysis is readily satisfied here, as it is in
nearly all claims for malicious prosecution.
(See Jarrow Formulas,> Inc. v. LaMarche, supra, 31 Cal.4th at pp. 734-735.)
“It is well established that filing a lawsuit is an
exercise of a party’s constitutional right of petition. [Citations.]
‘“‘[T]he constitutional right to petition . . . includes the basic act
of filing litigation or otherwise seeking administrative action.’”’ [Citations.]”
(Chavez v. Mendoza
(2001) 94 Cal.App.4th 1083, 1087.) “Under
these accepted principles, a cause of action arising from a defendant’s alleged
improper filing of a lawsuit may appropriately be the subject of a section
425.16 motion to strike.
[Citation.] The essence of the
[plaintiffs’] malicious prosecution claim is that the plaintiff in the
underlying action . . . filed litigation that was improper because it was
allegedly filed with a malicious motive and without probable cause. This claim ‘aris[es] from’ the defendant’s
constitutionally protected petitioning activity, and therefore is subject to
the anti-SLAPP statute.
[Citation.]” (>Id. at p. 1087-1088; >see also Cole, supra, 206 Cal.App.4th at
p. 1105.) We therefore turn to
the question of whether Glavinovich has established the requisite probability
of prevailing on his claim.



B. Malicious Prosecution

“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. [Citation.]”
(Soukup, supra, 39 Cal.4th at p. 292.)


We
examine the evidence Glavinovich produced in the trial court to determine if
his claim passes muster under the anti-SLAPP statute. His argument on the likelihood that he would
prevail on the merits was brief, comprising less than two full pages. With respect to probable cause, he relied
entirely on excerpts from the deposition testimony of two of the OCPIN
plaintiffs, Ajay Meka and Jacob Sweidan, for the proposition that the OCPIN
plaintiffs had no facts to support their claims against Glavinovich. With respect to malice, he stated: “Glavinovich can and will prove this element
by showing that the [causes of action] and other factually unsupported claims
were in fact rooted in their desire for greater control of the OCPIN entity
itself, as evidenced in the highly-contentious proceedings of the April 2009
shareholder meeting repeatedly referenced in all of the Underlying Complaints
and even in these moving papers. While
greater control of a business entity may be a legitimate end, bringing baseless
and legally untenable lawsuits in order to obtain such control is not a
legitimate means to that end.”

In
support of his motion, Naqvi filed his own declaration. It stated that in the summer of 2009, he met
with Meka’s lawyer, Catanzarite, who told him that the OCPIN plaintiffs’ claims
against Glavinovich were meritorious.
Based on those statements, he agreed to join the lawsuit and was named
as a plaintiff in the first amended complaint.
After Glavinovich partially succeeded in attacking the first amended
complaint, he sought a second opinion from another attorney, and based on that
opinion, dismissed himself from the lawsuit.
He stated he never had the intent to abuse the courts or to vex, annoy
or injure Glavinovich.

With
regard to the probable cause element, Naqvi relied on the defense of advice of
counsel. “Reliance upon the advice of
counsel, in good faith and after full disclosure of the facts, customarily
establishes probable cause.
[Citations.]” (>Sosinsky
v. Grant (1992) 6
Cal.App.4th 1548, 1556.) Glavinovich
argues Naqvi cannot rely on this defense because Naqvi did not “state[] all of
the facts to Catanzarite or to any other attorney.” But from Naqvi’s declaration, it appears that
Naqvi did not have anything to disclose.
Glavinovich has certainly not demonstrated otherwise, and we therefore
conclude Naqvi could rely on the defense of advice of counsel and would
probably prevail at trial with such a defense.

Even
if Glavinovich’s evidence could be held sufficient with regard to probable
cause, it falls far short on the issue of malice. “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 bringing a perceived
guilty person to justice or 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.” (Downey Venture
v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 (Downey Venture).)

Glavinovich
argues that malice can be inferred from nothing more than the lack of probable
cause, but the lack of probable cause alone is insufficient. (Drummond v. Desmarais (2009) 176
Cal.App.4th 439, 452.) Were it
otherwise, the malice requirement would simply disappear. “A lack of probable cause is a factor that
may be considered in determining if the claim was prosecuted with malice
[citation], but the lack of probable cause must be supplemented by other,
additional evidence.” (HMS Capital,
Inc. v. Lawyers Title Co., supra,
118 Cal.App.4th at p. 218.) “Merely
because the prior action lacked legal tenability, as measured objectively
(i.e., by the standard of whether any reasonable attorney would have thought
the claim tenable [citation]), without more, would not logically or
reasonably permit the inference that such lack of probable cause was
accompanied by the actor’s subjective malicious state of mind. In other words, the presence of malice must
be established by other, additional evidence.”
(Downey Venture,
supra, 66 Cal.App.4th at p. 498 fn. omitted.)

“[T]hat
evidence must include proof of either actual hostility or ill will on the part
of the defendant or a subjective intent to deliberately misuse the legal system
for personal gain or satisfaction at the expense of the wrongfully sued
defendant. [Citation.]” (Downey
Venture, supra, at pp. 498-499; see also Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225.) While malice may be inferred from
circumstantial evidence such as the lack of probable cause, such evidence must
be “supplemented with proof that the prior case was instituted largely for an
improper purpose.” (Cole, supra, 206
Cal.App.4th at p. 1114.)

Moreover,
we keep in mind that malicious prosecution is a “disfavored action.” (Leonardini v. Shell Oil Co. (1989)
216 Cal.App.3d 547, 566.) “[T]he
elements of [malicious prosecution] have historically been carefully
circumscribed so that litigants with potentially valid claims will not be
deterred from bringing their claims to court by the prospect of a subsequent
malicious prosecution claim.” (Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872.) We are therefore entirely disinclined to read
out the malice requirement from a malicious prosecution cause of action, as
Glavinovich would have us do.

It
is easy to see why Glavinovich would prefer we did so — he simply offers no
facts from which malice on Naqvi’s part can be reasonably inferred.href="#_ftn6" name="_ftnref6" title="">[6] Unlike the cases he cites (see, e.g., >Zamos v. Straud (2010) 32 Cal.4th 958),
the facts here do not demonstrate that Naqvi actually knew the case lacked
probable cause. The deposition testimony
of Meka and Sweidan does not mention Naqvi, nor can we infer from their
testimony what Naqvi knew or did not know.
He offers nothing to establish that Naqvi harbored actual malice toward
him, or any improper purpose. Based on
the admissible evidence relating to Naqvi, which is sparse and largely comes
from his own declaration, Glavinovich has failed to meet his burden to
demonstrate malice, and therefore the probability of success on his malicious
prosecution claim. Thus, Naqvi’s anti-SLAPP
motion was properly granted by the trial court.



III

DISPOSITION

The judgment is affirmed. Pursuant to section 425.16, subdivision
(c)(1), Naqvi may file the appropriate motion for attorney fees with the trial
court. He is also entitled to his costs
on appeal.







MOORE,
J.



WE CONCUR:







BEDSWORTH, ACTING P. J.







IKOLA, J.