Filed 10/9/26 Gretzky v. Grant Shenon CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
WAYNE GRETZKY et al., B349708
Plaintiffs and Respondents, Los Angeles County
Super. Ct. No.
v. 25STCV07264
GRANT|SHENON et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Jerrold Abeles, Judge. Affirmed.
Nemecek & Cole, Frank W. Nemecek and Mark Schaeffer
for Defendants and Appellants.
Gordon Rees Scully Mansukhani, Miles D. Scully and
Gabriel G. Hedrick for Plaintiffs and Respondents.
_________________________
We review the denial of an anti-SLAPP motion. That
motion was brought in response to a complaint for malicious
prosecution, which in turn was a response to two underlying
fraud cases. We affirm the order of the trial court.
BACKGROUND
We briefly outline the proceedings in the trial court.
Detail is provided below in context.
Wayne Gretzky and his wife Janet Gretzky filed a first
amended complaint March 27, 2025, accusing attorneys Adam
Grant and the law firm Grant | Shenon (together, Grant1) of
malicious prosecution. They also sued Veera Mahajan and
Howard Feldman, the clients represented by Grant in the
underlying cases.
Wayne Gretzky is a well-known sports figure, known as
the “Great One” and according to Feldman is “known worldwide
with millions of followers.”
The underlying litigation prosecuted by these defendants
were fraud claims against the Gretzkys, brought by Feldman and
Mahajan, represented by Grant. The Gretzkys allege in their
malicious prosecution case that the fraud suits were brought
to extort a settlement of millions of dollars.
The underlying fraud suit centered on a company
BuChew, LLC, started by one Steven Sparks. BuChew was
created to market a chewing gum that would help people lose
weight. The Gretzkys and their children invested money in
BuChew.
1 Following Grant’s lead, we use the masculine pronoun
to refer to Grant.
2
Gretzky had lost weight during a trip while he was chewing
the gum, and BuChew, without asking Gretzky’s permission,
used his name and likeness to promote the gum in promotional
materials aimed at investors, including what the parties have
referred to as “investor decks.” Gretzky’s famous name was used,
without his knowledge, to pitch BuChew to potential investors
for “well over a year.”
The malicious prosecution complaint alleges that BuChew
ran out of money and Sparks concocted a plan to extort money
from the Gretzkys. The Gretzkys allege that Sparks was the
“ringleader” of the effort. The Gretzkys quote an email from
Roger Gunn, an investor who took over from Steven Sparks
as BuChew’s CEO, recounting a conversation with Sparks:
“I said, ‘Steve, the company is completely out of
money. It looks like a dead duck to me.’ He then
said, ‘Well, yes it is.’ He also told me about his own
personal financial struggles, that he was out of
money himself. . . [.] [¶] In a subsequent meeting
with Steve, he laid out to me a plan that was
being formulated. He asked me to guess the true
worth of the Gretzky name and estate. I said that
I had no idea. $200 million? He said it was likely
a great deal more than that. He described a plan
being discussed to bring a lawsuit against Janet
Gretzky for breach of her contract, detrimental
reliance, and maybe some others. That if a lawsuit
was leveled against them for tens of millions,
they would most likely settle for a few million.”
(Boldfaced italics added by Respondents.)
3
This email comprised a May 30, 2020 company
memorandum created and sent years before Grant substituted
into the fraud cases in September 2023.
Sparks allegedly conspired with his two close friends, Veera
Mahajan and Howard Feldman, to claim in the underlying suits
that the Gretzkys lied about Wayne Gretzky’s weight loss. The
alleged conspirators hired an attorney, Wilfred Killian, to file
the underlying suits: one by Sparks, and one each by Feldman
and Mahajan.2 Those complaints alleged that the conspirators
had relied on Gretzky’s claim about weight loss to invest in
BuChew. Killian was suspended from practicing law in a
proceeding unrelated to this case. Grant then substituted in.
In response to the fraud suits, the Gretzkys filed a series
of demurrers. In the Sparks case, the demurrer was overruled,
and is not at issue for present purposes.
In the Feldman and Mahajan cases, demurrers to
complaints and amended complaints were repeatedly sustained
with leave to amend. In Mahajan, Grant finally filed a fourth
amended complaint. It was met with yet another demurrer.
No opposition was filed, and the case was voluntarily dismissed
“without prejudice” a few days before the hearing. Judgment
was entered in the Gretzkys’ favor.
A similar result was reached with Feldman’s amended
complaint, i.e., it ended with a voluntary dismissal (this time
with prejudice) after the last demurrer—to which no opposition
was filed—was sustained with leave to amend.
Then the Gretzkys filed this malicious prosecution case.
2 Los Angeles Superior Court case numbers 22STCV26248,
22SMCV01999, and 22SMCV02110, respectively.
4
The operative first amended complaint outlines the
scheme by Sparks, Mahajan, and Feldman to extort money
from the Gretzkys. The complaint outlines how Grant failed
to undertake any meaningful investigation of the merits.
The Gretzkys’ malicious prosecution complaint was met
with an anti-SLAPP motion, the subject of this appeal. In
support of the motion, Grant contended that, among other things,
he had sufficiently investigated the factual basis for the fraud
suits, and bore no malice towards the Gretzkys.
The Gretzkys opposed the motion, and the court denied it.
The trial judge overruled evidentiary objections, none of which
is at issue in this appeal.
Grant filed a timely appeal.3
DISCUSSION
Grant identifies three reasons to reverse the trial judge.
“The court failed to properly apply the probable cause standard,
improperly implied malice, and failed to recognize that the
attorney-client privilege prevented Grant from defending
against the lawsuit.”
3 The losing party in an anti-SLAPP motion has a right to
an immediate appeal (Code Civ. Proc., § 425.16, subd. (i)), leading
to “a large volume of anti-SLAPP appellate decisions.” (Shaffer,
California’s Anti-SLAPP Statute: A Potent, Yet Confounding,
Weapon (Miller & Starr 2017) Vol. 27, No. 6, Real Estate
Newsalert NL 1.) The appeal stays trial court proceedings on
claims the subject of the motion. (Burke, Anti-SLAPP Litigation
(The Rutter Group 2026) § 2:92; see also, e.g., Grewal v. Jammu
(2011) 191 Cal.App.4th 977, 1003 (Grewal) [discussing the
sometimes unwarranted delay caused by anti-SLAPP’s
automatic appeal provisions].)
5
Our review is de novo. (Newport Harbor Offices & Marina,
LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th
28, 42.)
I. Anti-SLAPP
A. Statutory background
Anti-SLAPP law is codified at Code of Civil Procedure
section 425.16.4 This allows a special motion to strike claims,
brought early in a case and usually decided without the benefit of
discovery. The law targets claims made not with an expectation
of success, brought only to muzzle an adversary with the threat
of burdensome, meritless litigation.
In what is now a familiar pattern, anti-SLAPP analysis
has two prongs. First one determines if the conduct or speech
that is the focus of the claims is “protected activity” falling within
one or more of the categories in section 425.16, subdivision (e)(1)
through (4). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If it
does, then under prong two one determines if there is “minimal
merit” to the claim, that is, evidence sufficient for a prima facie
case. (See generally Grewal, supra, 191 Cal.App.4th at p. 989.)
If there is minimal merit, the anti-SLAPP motion is denied
and the case proceeds. “ ‘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.” ’ ” (Navellier, at pp. 88–89.)
There is no dispute here that prong one was met, because
malicious prosecution cases which are of necessity premised on
4 Subsequent statutory references are to the Code of Civil
Procedure.
6
“written or oral statement or writing made before a . . . judicial
proceeding . . .” involve protected speech. (§ 425.16, subd. (e)(1);
Daniels v. Robbins (2010) 182 Cal.App.4th 204, 214–215
(Daniels).)
Thus we turn to the second prong. This is an evaluation
of the merits, and usually relies on admissible evidence, but the
threshold is low. It’s plaintiff’s burden to show minimal merit.
(Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)
At this stage courts don’t weigh evidence nor do they assess
credibility; no corroboration is needed; courts accept plaintiff’s
evidence as true and “ ‘resolve any conflicts and inferences in
that party’s favor.’ ” (Ahmed v. Collect Access, LLC (2025) 114
Cal.App.5th 1092, 1099; see also Sexton v. Apple Studios LLC
(2025) 110 Cal.App.5th 183, 203; Peterson v. Zhang (2025)
116 Cal.App.5th 956, 967–968 [“Courts are required to accept
[plaintiff’s] evidence as true.”].)
B. Malicious prosecution
We consider the elements of a malicious prosecution claim
and determine whether there was evidence to support each
element of the tort.
Here are the elements:
“a plaintiff must plead and prove that the underlying
action was[:] (1) commenced by or at the direction
of the defendant and pursued to a legal termination
in the plaintiff’s favor; (2) brought without probable
cause; and (3) initiated with malice. [Citations.]
Probable cause is a legal question to be resolved
by the court; malice is a factual question to be
resolved by a jury.” (Plumley v. Mockett (2008)
164 Cal.App.4th 1031, 1047; accord, Parrish v.
7
Latham & Watkins (2017) 3 Cal.5th 767, 775
(Parrish); compare with, e.g., Ceron v. Liu (2025)
112 Cal.App.5th 307, 311 [plaintiffs must also show
they suffered consequent damages]; Maleti v. Wickers
(2022) 82 Cal.App.5th 181, 203 [same].)5
We examine each element because “[n]o reasonable
attorney who knows an essential element of a claim is lacking
would believe the claim is tenable.” (Landis’ Labyrinth, Inc.
v. Whitaker (2025) 116 Cal.App.5th 724, 742 (Whitaker).)
Even if there is probable cause earlier in an underlying
suit, malicious prosecution “includes continuing to prosecute
a lawsuit discovered to lack probable cause.” (Zamos v. Stroud
(2004) 32 Cal.4th 958, 973, italics added.)
5 As the trial judge recognized, there may be some debate
whether damages is an element here, or whether there is, at least
for purposes of evaluating an anti-SLAPP motion, a presumption
of damages. (See, e.g., Sycamore Ridge Apartments LLC v.
Naumann (2007) 157 Cal.App.4th 1385, 1411–1412 (Sycamore)
[“In order to be granted monetary relief, a malicious prosecution
plaintiff must also prove damages. However, there is no
requirement that, for purposes of surviving an anti-SLAPP
motion, a malicious prosecution plaintiff must provide specific
evidence of the extent of the damages suffered. A malicious
prosecution claim is actionable precisely because the malicious
prosecution is presumed to have injured the defendant in the
underlying action.”].) Grant does not argue that damages need
be addressed as an element of malicious prosecution in the
anti-SLAPP context. We do however discuss below the causation
issue, i.e., whether Grant had facts to show his clients were
damaged as a result of the Gretzkys’ alleged fraud.
8
1. The prior actions were resolved in favor
of the Gretzkys6
The Gretzkys note that this issue—whether the fraud
actions were terminated in their favor—was not argued below
and so is forfeited on appeal. The trial court noted the issue was
not disputed. We agree: the issue is forfeited here. (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 699.)
But Grant loses on this issue in any event.
The parties agree that the underlying fraud actions were
voluntarily dismissed. Grant maintains there is no evidence,
however that they were “favorably terminated on the merits,”
because the lawyers who dismissed the fraud cases have not
said why they did so.
Grant points out that a voluntary dismissal may or may not
qualify as a favorable termination, citing Citizens of Humanity,
LLC v. Ramirez (2021) 63 Cal.App.5th 117, 129. The Gretzkys
note cases which suggest voluntary dismissals often are indeed
“favorable” in the relevant sense. (E.g., Sycamore, supra, 157
Cal.App.4th at p. 1400 [relying on Lackner v. LaCroix (1979)
25 Cal.3d 747, 750–751 (Lackner) to note the natural assumption
that one does not simply abandon a meritorious action once
instituted]; Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808
[“ ‘In most cases, a voluntary unilateral dismissal is considered
a termination in favor of the defendant in the underlying
action . . . .’ ”].)
6 The Gretzkys argue that Grant, as counsel (i.e., not
a party) was actively involved in and directed the dismissed
lawsuits, making him an eligible defendant for a malicious
prosecution suit. Grant’s reply brief does not contest this point.
9
The decisive point is this: did the voluntary termination
“relate to the merits” as opposed to “technical or procedural”
reasons? (Lackner, supra, 25 Cal.3d at p. 751.) “Technical”
reasons include, e.g., statute of limitations, dismissal pursuant
to settlement, and laches. (Casa Herrera, Inc. v. Beydoun (2004)
32 Cal.4th 336, 342; Detrick v. Shimada (2026) 120 Cal.App.5th
170, 176.)
The Gretzkys point here to the repeated successful
demurrers. As they note, “Mahajan and Feldman collectively
filed more than seven complaints and amended complaints,
none of which survived demurrer.” In the Mahajan case, there
was no opposition to the final demurrer and the dismissal came
shortly before the hearing date. Feldman dismissed his case with
prejudice after the trial court had sustained multiple demurrers
to both his complaint and Mahajan’s complaints. The grounds
for demurrer, sustained by the trial court, also figure here:
they were not on the basis of “technical” issues such as laches
or statutes of limitation. Rather, they zeroed in on failures
to specify facts to support the fraud allegations.
This evidence clearly favors the Gretzkys. The many
attempts to plead fraud causes of action were ineffective. The
demurrers were sustained for a failure to state facts. The timing
of the dismissals is also suggestive, following closely on the
court’s orders sustaining demurrers or just before hearings on
the demurrers. Also pertinent is the failure to oppose the last
demurrer in the Mahajan case and the dismissal with prejudice
in the Feldman case. This record, together with the fact that a
“voluntary dismissal is presumed to be a favorable termination
on the merits” (Sycamore, supra, 157 Cal.App.4th at p. 1400),
is enough to support a finding of termination on the merits.
10
Grant only argues that no one knows why the suits were
dismissed. That won’t overcome the circumstantial evidence
and presumption in favor of the Gretzkys. In any event, even
if Grant’s “lack of reasons” argument weighed in his favor,
courts make inferences for the plaintiff on the second prong
of anti-SLAPP motions; juries decide conflicts in the facts and
inferences later, at trial. (Medley Capital Corp. v. Security
National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 47–48.)
2. The prior actions were not supported
by probable cause
Courts must be cautious in finding that a lawyer acted
without probable cause. Threats by disgruntled adversaries may
inhibit lawyers’ duty to represent clients. But lawyers’ duties
in this respect are bounded by their obligation to proceed only
with evidence and a good faith belief that the law as it is, or
should be, supports the claims. (Rules Prof. Conduct, rule 3.1.)
These countervailing aspects are noted by our Supreme Court:
“ ‘A litigant or attorney who possesses competent
evidence to substantiate a legally cognizable claim
for relief does not act tortiously by bringing the claim,
even if also aware of evidence that will weigh against
the claim. Plaintiffs and their attorneys are not
required, on penalty of tort liability, to attempt to
predict how a trier of fact will weigh the competing
evidence, or to abandon their claim if they think
it likely the evidence will ultimately weigh against
them. They have the right to bring a claim they
think unlikely to succeed, so long as it is arguably
meritorious.’ ” (Parrish, supra, 3 Cal.5th at pp. 777–
778, italics added.)
11
Our review in the context of the anti-SLAPP motion is
only to determine if the Gretzkys made a prima facie case that
Grant acted without probable cause. (Cuevas-Martinez v. Sun
Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1119.)
The thrust of the two fraud complaints (these included a
negligent misrepresentation claim, which the parties here have
not separately discussed) was the same: that Wayne Gretzky
said he’d lost weight by using the BuChew gum, that he intended
to inveigle plaintiffs Feldman and Mahajan to invest in BuChew,
that BuChew used the weight loss statement to secure investors
(including Feldman and Mahajan) who acted on those
representations, that the weight loss claim wasn’t true, and
the plaintiffs lost their investments as a result of the falsity.
i. Flaws in certain of the Gretzkys’
arguments
We make preliminary observations on some of the
Gretzkys’ arguments.
Much of the Gretzkys’ brief assumes lawyers in this context
have a duty to investigate. Grant ignored red flags, which gave
rise to a “heightened obligation.” The investigation would have
revealed the claims to be without a basis. It is in this context
that the Gretzkys note that Grant did not speak with his new
clients or read deposition transcripts.
The Gretzkys offer no authority for this duty. In the
context of malicious prosecution, the duty to investigate is owed
to the client, not to the opposing parties, and since 1989 the
failure to investigate is not as such part of the probable cause
analysis.7 That was the year the Supreme Court decided
7 There are of course duties to the court as well, found in
the Rules of Professional Conduct such as rules 3.1 (meritorious
12
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 882–
883 (Sheldon), which disapproved the contrary holding of Tool
Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d
675, 683. (See Ecker v. Raging Waters Group, Inc. (2001) 87
Cal.App.4th 1320, 1331 [“Whether the malicious prosecution
defendant conducted a sufficient or adequate investigation is
legally irrelevant to the probable cause determination.”]; Litinsky
v. Kaplan (2019) 40 Cal.App.5th 970, 987.) It is for this reason
that arguments noting evidence was “available” to Grant are
not decisive in the probable cause context. The issue is what
evidence Grant actually had. (Below, we resurrect the adequacy
of Grant’s investigation in the specific context of malice.)
Next, the Gretzkys cite the fact that Grant took over as
counsel after Killian was disciplined by the State Bar. This was
a red flag, the Gretzkys say. But the discipline was unrelated
to the fraud cases here, and the Gretzkys offer no authority to
suggest this ought to have factored into Grant’s probable cause
analysis.
Finally, it did not matter in the probable cause context that
there had been successive demurrers sustained—each with leave
to amend. That sort of record is also compatible with (eventually)
meritorious actions. Indeed in the Sparks case, with similar
claims, a demurrer had been overruled.
claims and contentions), 3.2 (delay of litigation), and 3.3 (candor
towards tribunal). “ ‘[A]n attorney’s ethical duty to advance
the interests of his client is limited by an equally solemn duty
to comply with the law and standards of professional conduct.’ ”
(Jerman v. Carlisle, McNellie, Rini, Kramer (2010) 559 U.S.
573, 600; see also Noland v. Land of the Free, L.P. (2025)
114 Cal.App.5th 426, 447–448 [sanctions payable to court].)
13
ii. Fraud
We turn to the elements of fraud, and determine if
there was probable cause for each. As noted, we examine the
materials Grant had, not what he should have had under a duty
to investigate. This follows because courts look to the “facts
known to the defendant.” (Sheldon, supra, 47 Cal.3d at p. 878;
Whitaker, supra, 116 Cal.App.5th at pp. 741–742 [“defendant’s
knowledge”].)
Fraud requires evidence that the Gretzkys made a
“ ‘(a) misrepresentation (false representation, concealment,
or nondisclosure); (b) [with] knowledge of falsity (or “scienter”);
(c) intent to defraud, i.e., to induce reliance; (d) justifiable
reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court
(1996) 12 Cal.4th 631, 638.)
We assess each element in turn.
(a) Misrepresentation. Grant reviewed the prior pleadings,
which alleged that Wayne Gretzky had made false statements
concerning his weight loss. These were based on statements
from Steven Sparks, including his sworn discovery responses.
The assertedly false statements were in the investor decks.
Grant says he was entitled to rely on Sparks, including on
his discovery responses.
Grant argues that the materials in the record support the
notion that Gretzky approved the investor materials.8 None of
8 It is impossible to know precisely which facts Grant means
to cite. His opening brief refers to his declaration in support of
the anti-SLAPP motion and Sparks’ discovery responses we note.
The declaration in turn refers to three documents: Feldman’s
first amended complaint, Mahajan’s third amended complaint,
and (again) Sparks’ supplemental discovery responses. The cited
pages of the Feldman and Mahajan complaints do no more than
14
those materials has to do with any approval or authorization:
they only display the statements in the investor materials.
The items cited by Grant (discovery responses and the investor
decks) do not show Gretzky authorized the statements.
Perhaps one might infer that the existence of the
statements attributed to Gretzky in the investor decks at least
suggested Gretzky authorized the use of the statements for
promotional purposes. But here we are required to make
inferences in favor of the malicious prosecution plaintiffs,
and so we decline the inference in Grant’s favor.
Thus there is at least minimal merit to the allegation
that Grant did not have a basis to allege that Gretzky made
or authorized the statements in the investor materials.9
(b) Knowledge of falsity. Grant relied on Sparks’ testimony
that the statements about weight loss were untrue. The
Gretzkys protest that Grant should not have relied on non-party
Sparks but they do not provide a reason. Counsel may rely on
mimic the Sparks discovery responses. The various references
are just repeat cites to the same thing, i.e., Sparks’ discovery
responses. Those don’t show Gretzky approved anything.
9 We note that some of the fraud allegations (e.g., Mahajan’s
fourth amended complaint) assert the Gretzkys made false
statements in other venues as well, such as in conversations.
But Grant does not argue he had a basis for alleging those
statements were made to induce investments in BuChew, or
that his clients relied on those statements when they made
their investments. Nor does Grant point to facts in support of
the notion that the Gretzkys’ comments outside of the investor
promotional materials were intended by the Gretzkys to be relied
on by the fraud plaintiffs in their decisions to invest in BuChew.
15
even weak evidence, or evidence which might be contradicted,
when evaluating probable cause. (Tuft et al., Cal. Practice Guide:
Professional Responsibility and Liability (The Rutter Group
2026) ¶ 6:1727 [no liability for reliance on contradicted
evidence].) There was a basis for Grant to allege this element.
(c) Intent to defraud (induce reliance). Just as there
was no evidence that Gretzky authorized the use of his name or
likeness in any promotional materials, concomitantly there was
no evidence that by doing so he sought to induce any investor
(including Feldman and Mahajan) to rely on those statements.
Grant advances the theory that the inducements to invest
ran from Gretzky to Sparks, who relayed them to Feldman and
Majahan. It may well be true that a fraudster can be liable for
passing his false statement through an intermediary, but that
does not, of course, obviate the need to prove intent to induce
reliance.
Grant’s general reference to the materials he says he
reviewed and relied on again invokes Sparks’ discovery responses
and Feldman’s deposition, none of which supports the notion that
Gretzky intended to induce Feldman and Mahajan to invest in
BuChew. Grant does not call out any evidence specific to this
element of intent to defraud.
There was no basis for Grant to allege this element.
(d) Justifiable reliance. Grant did not speak with his
clients Feldman and Mahajan and so had no direct evidence of
their reliance. Direct evidence may not be required, but Grant
himself points out that Mahajan relied directly on Sparks;10
10 E.g., Grant quotes Mahajan’s declaration dated August 11,
2025 as follows: “All of my investment decisions in BuChew were
16
similarly, Feldman relied on Sparks. This is materially different
from relying on the investor materials.
There was no basis for Grant to allege this element.
(e) Resulting damage. Causation in the fraud complaints
traced a line from (i) the Gretzkys’ asserted misrepresentations,
causing (ii) investment in BuChew, then to the loss of the
investments as a result of (iii) the truth coming out (that the
gum had not produced weight loss), which in turn (iv) caused
BuChew to fail.
Setting aside the source of the alleged falsity, there is
evidence that Mahajan invested some money after learning
of Gretzky’s weight loss. So too Feldman alleged he invested
after hearing the weight loss statements. This is the evidence
Grant notes in his reply brief.11
While there is now conflicting evidence—for example,
Mahajan filed a declaration that she did not rely on the
assertedly false statements—Grant did have some evidence
suggesting the alleged false statements caused some investment.
But neither in his opening nor reply brief does Grant
call out any specific evidence that the alleged statement’s
falsity led to the demise of BuChew, and so to the loss of the
based on my conversations with [Sparks] and the information
he provided me about BuChew and the Gretzkys.”
11 But at the time pertinent to the malicious prosecution
claim, Grant didn’t have the Mahajan declaration, which was
created much later in August 2025 for the anti-SLAPP motion.
And it’s not clear if one may rely on just an allegation in a
complaint as evidence of probable cause, i.e., as the requisite
“factual support.” (Daniels, supra, 182 Cal.App.4th at p. 227.)
The parties did not address that issue.
17
investment.12 For their part, the Gretzkys attribute the failure
of BuChew to Sparks’ “lavish” spending and mismanagement,
which ended with his removal as BuChew’s manager. The
Gretzkys point out that Grant had documentation for this view.
In any event, there was no basis for Grant to allege this
element, i.e., that BuChew imploded, and investments vanished,
because of the weight loss statement or its ultimate retraction.
3. There is evidence of malice
The third element is malice. “Malice ‘may range anywhere
from open hostility to indifference. [Citations.] Malice may also
be inferred from the facts establishing lack of probable cause.’ ”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
292.) Malice is a subjective mental state, and so is usually shown
with circumstantial evidence. (HMS Capital, Inc. v. Lawyers
Title Co. (2004) 118 Cal.App.4th 204, 218 (HMS Capital);
Tuft et al., Cal. Practice Guide: Professional Responsibility
and Liability, supra, ¶ 6:1723.)
There is such circumstantial evidence here.
First, of course, is the lack of probable cause, as to
more than one element of fraud. (HMS Capital, supra, 118
Cal.App.4th at p. 218 [“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.”].)
12 Again, long after Grant was involved in the fraud cases,
Mahajan filed a declaration in support of the opposition to the
anti-SLAPP motion in which she reported that Sparks thought
BuChew failed when the Gretzkys directed Wayne Gretzky’s
name and likeness not be used.
18
Second is the limited investigation conducted by Grant:
while not pertinent to the probable cause element, it is pertinent
to malice. (Sheldon, supra, 47 Cal.3d at p. 883 [“extent of a
defendant attorney’s investigation and research may be relevant
to the further question of whether or not the attorney acted
with malice”].) Grant didn’t interview his clients on the merits
of the case. Grant does not claim he did; he only suggests
it’s speculation to suggest he did not interview them. That’s
not true. Mahajan filed a declaration saying he didn’t.
Grant apparently ignored an email from his other client
Sparks (on whom Feldman and Mahajan say they relied) to the
effect that the fraud suits could be used to squeeze out a few
million dollars in settlement, which we quoted at length above.
The plan apparently was to create bad publicity that would force
the Gretzkys to settle. This is a third piece of circumstantial
evidence. Suing to force “ ‘ “a settlement which has no relation
to the merits of the claim” ’ ” is classic malice. (Sierra Club
Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157, quoting
Albertson v. Raboff (1956) 46 Cal.2d 375, 383.) While a lawyer
can’t be blamed for his client’s malice (see Dunning v. Clews
(2021) 64 Cal.App.5th 156, 176–177), knowledge of, or
indifference to, the client’s malice may be circumstantial
evidence of the lawyer’s state of mind.
The Gretzkys’ counsel wrote to Grant and his predecessor
(in correspondence that was sent to Grant) stating the cases
were frivolous and asking for dismissal. There was apparently
no response. “Again, indifference.” (Jenkins v. Brandt-Hawley
(2022) 86 Cal.App.5th 1357, 1386.) This is a fourth piece of
circumstantial evidence.
19
The Gretzkys presented enough to show minimal merit
to the malice element of malicious prosecution.
In so doing, the Gretzkys completed their showing of
at least “minimal merit” to the malicious prosecution claim.
II. Attorney Client Privilege
Grant contends that he cannot defend a malicious
prosecution suit because of the attorney-client privilege.
He says that the reason for dismissing the underlying suits
remains a mystery and must remain so, as a result of the secrecy
obligations imposed on the lawyers for Feldman and Mahajan.
Perhaps the suits were not dismissed for reasons related to
the merits, Grant intimates, which would defeat the malicious
prosecution cause of action. The existence of the privilege
is enough to show the malicious prosecution case must be
dismissed, he says, quoting Solin v. O’Melveny & Myers (2001)
89 Cal.App.4th 451, 467 (Solin) (“because this lawsuit ‘is
incapable of complete resolution without breaching the
attorney-client privilege, the suit may not proceed’ ”). Grant
also relies on McDermott, Will & Emery v. Superior Court (2000)
83 Cal.App.4th 378 (McDermott) and Dietz v. Meisenheimer
& Herron (2009) 177 Cal.App.4th 771 (Dietz).
Grant makes a claim of striking breadth. If it were valid,
one would expect to see it defeat most malicious prosecution cases
where the underlying case was voluntarily dismissed, and so too
in the context of anti-SLAPP motions brought in malicious
prosecution cases. But none of the three cases relied on by Grant
is cited in any published California anti-SLAPP opinion. Indeed,
20
none is cited in any published California case on malicious
prosecution.13
In Solin the plaintiff sued his former law firm based
on communications he had with them, but in effect refused
to let them defend, invoking the attorney-client privilege.
(Solin, supra, 89 Cal.App.4th at pp. 455–456.) “It strikes us
as fundamentally unfair for a client to sue a law firm for the
advice obtained and then to seek to forbid the attorney who
gave that advice from reciting verbatim, as nearly as memory
permits, the words spoken by his accuser during the consultation.
Simple notions of due process counsel against such a procedure.”
(Id. at p. 463.) It was a similar story in Dietz. The claim
against the attorney may be barred when a “defendant attorney’s
due process right to present a defense would be violated by the
defendant’s inability to disclose a client’s confidential information
if the action were allowed to proceed.” (Dietz, supra, 177
Cal.App.4th at p. 792.)
So too in McDermott: “We simply cannot conceive how
an attorney is to mount a defense in a shareholder derivative
action alleging a breach of duty to the corporate client, where,
by the very nature of such an action, the attorney is foreclosed,
in the absence of any waiver by the corporation, from disclosing
the very communications which are alleged to constitute a breach
of that duty.” (McDermott, supra, 83 Cal.App.4th at p. 385.)
In all these cases the courts called out the basic unfairness
of allowing a plaintiff to prosecute a claim and simultaneously
13 One malicious prosecution case names Solin, but it’s not
precedential. (Siebel v. Mittlesteadt, review granted and opn.
superseded Sept. 1, 2004, S125590 [18 Cal.Rptr.3d 667], affd.
on other grounds (2007) 41 Cal.4th 735.)
21
refuse permission for the defendant law firm to present on
that claim. Plaintiffs here, the Gretzkys, are not Grant’s former
clients and have done nothing to prevent Grant from discussing
the reasons for the voluntary dismissal; indeed, we don’t know if
the former clients (Feldman and Majahan) would object. Grant
says he can’t even say if he’s asked them, although in the cases
on which he relies, the position of the clients—to not waive the
privilege—was recited without any suggestion that violated
the privilege. In fact, the client’s expressed refusal to waive is
an essential part of the analysis. (Dietz, supra, 177 Cal.App.4th
at p. 792 [“the client must be insisting that the information
remain confidential”].)
In any event, the issue cannot be resolved in the context of
this anti-SLAPP motion. Invoking our Supreme Court’s opinion
in General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th
1164, the Dietz court listed four factors to be considered:
“First, the evidence at issue must be the client’s confidential
information, and the client must be insisting that the information
remain confidential.” (Dietz, supra, 177 Cal.App.4th at p. 792.)
Second, the evidence must relate to a central issue and must
be necessary to try those issues. (Id. at pp. 792–793).14 Third,
14 With respect to this second factor, there seems to be an
unannounced assumption in Grant’s approach. It is that the
evaluation of whether a voluntary dismissal is on the merits
(or not) is a subjective one. That’s why he argues he needs to
have the lawyers testify on their reasons for dismissing the cases.
Presumably if a lawyer said, for example, he’d dismissed because
the client was bored with the case, that might show the dismissal
was not on the merits, in turn obviating a malicious prosecution
claim. If valid, one might expect lawyers to invoke this sort of
subjective explanation whenever sued for malicious prosecution.
22
the trial court considers various measures, such as sealing
and in camera proceedings, to allow the action to proceed. (Id.
at p. 793.) Finally the court considers whether it would be
“ ‘fundamentally unfair’ ” to allow the action to proceed. (Ibid.)
These factors are all briefed to the trial court which then
conducts an “evidentiary hearing.” (Rickley v. Goodfriend
(2013) 212 Cal.App.4th 1136, 1165.)
No such hearing was done in this case. No party asked
for one. In his one paragraph discussion of the attorney-client
issue in the anti-SLAPP motion below, Grant mentions the Dietz
case but makes no attempt to walk through the four-part test.
His reply brief in the trial court does no more.15
And it would not have been practical to conduct the Dietz
analysis in the context of this anti-SLAPP motion. These motions
are very early tests of the “minimal merit” of a plaintiff’s case,
often done before any discovery, designed to screen out
essentially frivolous litigation: the law “only provides a
procedure for weeding out, at an early stage, meritless claims
In any event, the issue of whether the test is subjective or
objective, e.g., based on the objectively verifiable circumstances
of the dismissal, has not been briefed to us. We express no
opinion on the matter. As Grant presents no authority that
subjective reasons are material, our discussion on favorable
termination above (§ I.B(1)) relies on the objective circumstances
of the dismissal. (Compare Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 65 (Equilon) [the “anti-SLAPP
statute utilizes a reasonable, objective test that lends itself
to adjudication on pretrial motion”].)
15 The trial court knew what the four factors were, and
correctly pointed out that Grant had neither identified them
nor addressed the showing they require.
23
arising from protected activity.” (Baral v. Schnitt (2016) 1
Cal.5th 376, 384.) Whether a privilege will ultimately block
a claim is not directly implicated in this review of “minimal
merit” of plaintiff’s complaint. This is especially true with the
sort of privilege claim now made by Grant: many of the issues
to be reviewed under the four-part test set out above require an
understanding of the alternative ways in which a claim might
be proven or rebutted, an evaluation of what is a central issue
and what evidence is essential to such an issue; and so on. This
sort of investigation is difficult, if not impossible, to carry out
at the outset of litigation. But postponing the resolution of an
anti-SLAPP motion to accommodate the hearing is not in keeping
with the point of the procedure. (Equilon, supra, 29 Cal.4th
at p. 66 [noting “the Legislature’s carefully crafted scheme
for disposing of SLAPP’s quickly and at minimal expense
to taxpayers and litigants”].)
The attorney-client issue here does not warrant granting
the anti-SLAPP motion.
24
DISPOSITION
The order denying Grant’s anti-SLAPP motion is affirmed.
Costs on appeal are awarded to the Gretzkys.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KARNOW, J.
We concur:
ADAMS, P. J.
HANASONO, J.
Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
25