Filed 10/2/26 Heil v. Serpik CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PAULA M. HEIL, B342921
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 23STCV11085)
v.
ANDREI V. SERPIK,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Daniel S. Murphy, Judge. Affirmed.
Kousha Berokim for Plaintiff and Appellant.
Law Offices of Ilia Serpik and Ilia Serpik for Defendant and
Respondent.
_________________________
The Legislature enacted Code of Civil Procedure section
425.161 to provide a mechanism for the early dismissal of a civil
action deemed to be a strategic lawsuit against public
participation (SLAPP) that is brought “primarily to chill the valid
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.” (§ 425.16, subd. (a); Park
v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1060.) The statutory scheme allows a party to file
a special motion to strike, commonly referred to as an anti-
SLAPP motion. (§ 425.16, subd. (b).)
After prevailing in an underlying action arising from a
dispute related to real property, Paula M. Heil filed this action
for malicious prosecution and slander of title against the
attorneys for the opposing parties. One of the attorney
defendants, Andrei V. Serpik, appeared in the action and filed an
anti-SLAPP motion. Plaintiff appeals from the trial court’s order
granting defendant’s motion and entering judgment in his favor
with an award of statutory attorney’s fees. Plaintiff contends the
trial court erred in finding that her claims against defendant
arose from protected activity under section 425.16, and also in
finding that she failed to show a probability of success on the
merits.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
1. Background
The only parties to this appeal are plaintiff and appellant
Paula M. Heil and defendant and respondent Andrei V. Serpik.
1 All undesignated statutory references are to the Code of
Civil Procedure.
2
Their dispute arose from a complicated real estate transaction
involving several other individuals.
Plaintiff and her husband Jeffrey Heil (Jeffrey) owned
property in Pioneertown, California (property). In March 2017,
Tommie Lynn Moreau and Sandra Dee Merkow bought the
property. The purchase agreement lists Jeffrey as the seller, and
not plaintiff. Recitals in the purchase agreement state in
relevant part that the purchase price was $125,000, with Moreau
and Merkow providing a down payment of $50,000; Jeffrey
agreed to carry the $75,000 balance secured by a deed of trust
that would be subordinated to a construction loan of up to
$350,000 from a commercial lender; and Jeffrey would be the
contractor to complete construction of the home on the property
in accordance with a separate construction agreement.
Moreau and Merkow took title to the property subject to a
first deed of trust for the benefit of an institutional lender that
provided the construction loan, a second priority deed of trust for
the $75,000 seller-carry loan, and a third deed of trust for the
benefit of Sheila Joseph, a loan broker, to cover the amount
owing for her broker fees.
In November 2017, Moreau and Merkow executed the
separate construction contract with Jeffrey for the completion of
the home under development on the property.
In 2018, litigation ensued after a dispute arose regarding
the construction contract. Defendant was an associate attorney
at Anderson & Associates, the law firm that was hired to
represent Moreau and Merkow in the underlying proceedings.
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2. The underlying action
In June 2018, Jeffrey filed an action in San Bernardino
County Superior Court, case No. CIVDS1815889, for foreclosure
of a mechanic’s lien and breach of contract. Jeffrey contended
Moreau and Merkow failed to make payments under the
construction contract, while Moreau and Merkow claimed Jeffrey
abandoned the construction project without finishing a majority
of the planned work, and negligently performed the work that
had been completed.
Around this same time, plaintiff recorded a notice of default
against the property stating that Moreau and Merkow had
defaulted on the $25,371.37 that was owed on the seller-carry
loan (the second priority deed of trust).
In September 2018, defendant, on behalf of Moreau and
Merkow, appeared in the action and filed a cross-complaint.
The majority of the cross-claims were stated against Jeffrey for
negligent and defective work, including a cracked foundation, as
well as other alleged breaches of the construction contract.
The cross-complaint also named plaintiff as a cross-defendant in
claims for injunctive relief, declaratory relief, and quiet title.
In addition to damages, Moreau and Merkow requested an
injunction to enjoin the then-pending foreclosure sale on the
grounds the notice of default on the seller-carry loan was
premature and the balance of their obligations did not become
due until construction at the property was complete. An
amended cross-complaint dropped Merkow as a cross-
complainant and added a claim for wrongful foreclosure based on
allegations that plaintiff and Jeffrey had engaged in a fraudulent
scheme to wrest title to the property from Moreau and Merkow.
The scheme allegedly involved collusion with Joseph to foreclose
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on her third position deed, in order to facilitate plaintiff and
Jeffrey’s foreclosure efforts.
In conjunction with the filing of the cross-complaint,
defendant recorded two lis pendens against the property.
Jeffrey’s motion to expunge the lis pendens was subsequently
denied.
Defendant also filed an application for an order enjoining
the foreclosure sale. The application for a temporary restraining
order was denied, but a writ of mandate filed by defendant
resulted in an alternative writ being issued which stayed the
proceedings, including the foreclosure sale. While proceedings
remained pending in the appellate court, the parties entered into
a stipulation for an order staying the foreclosure sale pending an
order to show cause on the requested injunction. The stay was
subsequently lifted and reinstated, and then ultimately lifted
again in October 2019.
In the meantime, Joseph foreclosed on her third position
deed of trust in July 2019 after Moreau and Merkow defaulted on
their obligations to her. Thereafter, in February 2020, plaintiff
and Jeffrey foreclosed on the second deed of trust. After the
foreclosure sale was completed, Jeffrey deeded his interest in the
property to plaintiff as her sole and separate property.
In October 2020, attorney Michael Anderson and his law
firm Anderson & Associates were granted leave to withdraw as
counsel for Merkow.
On September 27, 2021, shortly after the filing of the
second amended cross-complaint, defendant left Anderson’s firm
and performed no further work in the underlying action.
In May 2022, Anderson and his law firm were granted
leave to withdraw as counsel for Moreau.
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On August 5, 2022, the trial court entered judgment in
favor of Jeffrey on the complaint, and in favor of Jeffrey and
plaintiff on the cross-complaint.
3. Plaintiff’s complaint in this action
In May 2023, plaintiff filed her complaint for malicious
prosecution and slander of title against defendant and Anderson.
Plaintiff alleged she sold her interest in the property to
Moreau and Merkow in March 2017, that Moreau and Merkow
subsequently defaulted on payments due on the $75,000 seller-
carry loan, and that she recorded a notice of default in May 2018.
Plaintiff alleged the cross-complaint and amended cross-
complaints filed by defendant in the underlying action on behalf
of Moreau and Merkow were pursued maliciously and without
probable cause. Plaintiff alleged that defendant presented forged
and fraudulent filings without any authority to do so from his
purported clients. Plaintiff alleged that defendant also falsely
asserted a conspiracy between plaintiff and Joseph, the loan
broker and holder of the third priority deed of trust, to wrongfully
foreclose on the property. Plaintiff alleged the two lis pendens
recorded by defendant constituted slander of title and
unreasonably delayed her from reacquiring title to the property.
Plaintiff sought damages, including legal fees, for having to
defend against the cross-complaint and to remove the cloud on
title to the property.
4. The anti-SLAPP motion
Defendant argued that plaintiff’s complaint arose from
quintessential petitioning activity, i.e., the filing of a cross-
complaint in a judicial proceeding and the recording of a related
lis pendens. Defendant also argued plaintiff could not establish a
probability of prevailing on either of her two causes of action. In
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his supporting declaration, defendant said he acted in good faith
at all times and reasonably believed the foreclosure efforts by
plaintiff and Jeffrey were premature and wrongful because the
terms of the purchase and loan agreements specified that the
final payment was not due until construction at the property was
complete, and because the amount that was alleged to be owing
was inflated and inaccurate.
Plaintiff opposed defendant’s motion contending that
defendant’s conduct in filing the cross-complaint was not
protected conduct under section 425.16 because defendant acted
without authority from any client. Plaintiff argued that
defendant relied on forged and fraudulent client verifications and
pursued fabricated allegations of collusion with Joseph, the loan
broker, in an attempt to state a basis for claiming plaintiff’s
foreclosure was wrongful. Plaintiff alleged the lis pendens were
tainted by the same wrongful conduct.
After hearing argument, the trial court granted defendant’s
anti-SLAPP motion. The court found plaintiff’s complaint arose
from protected activity, concluding that any argument about
defendant’s conduct being unlawful was relevant to the second
prong of the anti-SLAPP analysis but did not demonstrate that
the cross-complaint did not arise from protected activity. The
court further reasoned that plaintiff failed to present evidence
demonstrating a probability of success on the merits. On the
element of probable cause, the court emphasized that plaintiff
failed to address the fact that the court in the underlying action
denied the motion to expunge the lis pendens “which necessarily
involved a finding that the cross-complaint had a reasonable
probability of success.” The court also found that plaintiff failed
to present evidence that raised an inference the cross-complaint
7
was prosecuted by defendant with malice. On the slander cause
of action, the court found the lis pendens privileged under Civil
Code section 47, subdivision (b)(4). The court concluded,
“[b]ecause the complaint targets protected activity, and Plaintiff
has failed to demonstrate a probability of success for either cause
of action, the complaint must be stricken under Code of Civil
Procedure section 425.16.” Judgment was entered in defendant’s
favor thereafter.
This appeal followed.
DISCUSSION
In resolving an anti-SLAPP motion under section 425.16,
subdivision (b), the trial court engages in a two-step analysis.
The court first determines whether the moving defendant has
shown that the challenged cause of action arises from protected
activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If the
court determines the defendant met this initial movant’s burden,
the burden shifts to the plaintiff, and the court “must then
determine whether the plaintiff has demonstrated a probability
of prevailing on the claim.” (Ibid.) Only those causes of action
that satisfy both prongs of the analysis, i.e., they arise from
protected activity and lack minimal merit, are properly stricken
under section 425.16, subdivision (b). (Navellier, at p. 89.)
We independently review a ruling on an anti-SLAPP
motion, applying the same two-step analysis as the trial court.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3 (Soukup); Bowen v. Lin (2022) 80 Cal.App.5th 155,
161.) We assess the pleadings, accepting as true all admissible
evidence favorable to the nonmoving plaintiff, and do not
compare the weight of the parties’ evidence or make credibility
determinations. (Soukup, at p. 269, fn. 3.) We only evaluate the
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moving defendant’s evidence to determine if it defeats the
plaintiff’s evidence as a matter of law. (Ibid.)
After reviewing the record, we conclude defendant’s anti-
SLAPP motion was properly granted.
1. Malicious prosecution
1.1 First prong—protected activity
Plaintiff’s malicious prosecution claim was based on
defendant’s filing of the cross-complaint in the underlying action.
Section 425.16, subdivision (e), provides in relevant part that an
“ ‘act in furtherance of a person’s right of petition or free speech
under the United States or California Constitution in connection
with a public issue’ includes: (1) any written or oral statement or
writing made before a … judicial proceeding, or any other official
proceeding authorized by law.” As our Supreme Court has
defined, malicious prosecution of a civil proceeding is a cause of
action arising from protected activity under section 425.16,
subdivision (e). (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 735 [every reviewing court “that has addressed
the question has concluded that malicious prosecution causes of
action fall within the purview of the anti-SLAPP statute”].)
“Under the plain language of section 425.16, subdivision
(e)(1) and (2), as well as the case law interpreting those
provisions, all communicative acts performed by attorneys as
part of their representation of a client in a judicial proceeding or
other petitioning context are per se protected as petitioning
activity.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479–
480 (Cabral), citing Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056 (Rusheen).)
The trial court found that defendant met his burden in
showing that the malicious prosecution claim arose from
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protected activity. Plaintiff argues this was error because this is
not a “typical” malicious prosecution claim against an attorney
for pursuing a frivolous claim on behalf of a client. Rather,
plaintiff argues this is a claim based on the attorney knowingly
litigating on behalf of non-existent clients through fraud and
forgery in violation of Business and Professions Code section
6104, which states that “[c]orruptly or wilfully and without
authority appearing as attorney for a party to an action or
proceeding constitutes a cause for disbarment or suspension.”
Plaintiff urges us to find that section 425.16 does not apply
because defendant’s wrongful conduct was unprotected activity as
a matter of law.
We are not persuaded.
“ ‘[C]onduct that would otherwise come within the scope of
the anti-SLAPP statute does not lose its coverage … simply
because it is alleged to have been unlawful or unethical.’ ”
(Birkner v. Lam (2007) 156 Cal.App.4th 275, 285 (Birkner).)
The Supreme Court recognized a narrow exception to this general
rule in Flatley v. Mauro (2006) 39 Cal.4th 299, 305 (Flatley).
Flatley held that where the undisputed evidence demonstrated
an attorney had engaged in conduct that constituted criminal
extortion as a matter of law, that attorney could not use the anti-
SLAPP statute to strike the plaintiff’s complaint. (Ibid.)
But the illegality exception recognized in Flatley is narrow.
Flatley instructs that a defendant is precluded from using an
anti-SLAPP motion to strike a plaintiff’s complaint only where
“either the defendant concedes, or the evidence conclusively
establishes, that the assertedly protected speech or petition
activity was illegal as a matter of law.” (Flatley, supra,
39 Cal.4th at p. 320.) Flatley also emphasized that its conclusion
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the defendant attorney’s conduct constituted criminal extortion
as a matter of law was “based on the specific and extreme
circumstances” presented by the factual record there which
included a concession by the attorney that he sent the
threatening letter and his failure to contest the version of his
threatening phone calls contained in the opposing parties’
declarations. (Id. at pp. 328–329, 332 at fn. 16.)
Post-Flatley, courts have consistently recognized the
illegality exception is narrow. (See, e.g., Soukup, supra,
39 Cal.4th at p. 285; Bergstein v. Stroock & Stroock & Lavan LLP
(2015) 236 Cal.App.4th 793, 804–806; G.R. v. Intelligator (2010)
185 Cal.App.4th 606, 612–616; Cabral, supra, 177 Cal.App.4th at
pp. 480–482; Birkner, supra, 156 Cal.App.4th at p. 285.)
Even if we assume, without finding, that conduct by an
attorney in violation of Business and Professions Code
section 6104 is the type of conduct where the Flatley illegality
exception could apply, we reject plaintiff’s argument it applies
here. The record contains no concession by defendant that his
conduct in filing the cross-complaint in the underlying action or
in recording the lis pendens was illegal as a matter of law. Nor is
there other uncontroverted evidence in the record establishing
the filing was illegal as a matter of law.
1.2 Second prong—minimal merit
The burden shifted to plaintiff to demonstrate a probability
of prevailing on her claim for malicious prosecution. In other
words, to prevail on the motion, she had to demonstrate a legally
sufficient claim supported by a prima facie showing of facts in her
favor, if her evidence was credited. (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820; Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821 (Wilson), superseded by
11
statute in part on other grounds as stated in Hart v. Darwish
(2017) 12 Cal.App.5th 218, 226, fn. 3.)
A cause of action for malicious prosecution consists of three
elements: (1) initiation of the underlying action by defendant
with a favorable termination in plaintiff’s favor; (2) the
underlying action was brought or maintained without probable
cause; and (3) the underlying action was brought or maintained
with malice. (Sheldon Appel Co. v. Albert & Oliker (1989)
47 Cal.3d 863, 871; accord, Parrish v. Latham & Watkins (2017)
3 Cal.5th 767, 775 (Parrish).)
If plaintiff was unable to show a probability of establishing
even one element of her cause of action, defendant’s motion was
properly granted. As we explain, we find that plaintiff failed to
show a probability of prevailing on whether there was probable
cause to pursue the cross-complaint.
The probable cause element of a malicious prosecution
claim requires “ ‘the trial court to make an objective
determination of the “reasonableness” of the defendant’s conduct,
i.e., to determine whether, on the basis of the facts known to the
defendant, the institution [or maintenance] of the prior action
was legally tenable.’ ” (Parrish, supra, 3 Cal.5th at p. 776.) The
question is a legal one for the court to resolve to protect litigants
and their attorneys from “the danger that a lay jury would
mistake a merely unsuccessful claim for a legally untenable one.”
(Wilson, supra, 28 Cal.4th at p. 817.)
In other words, “[a] claim is unsupported by probable cause
only if ‘ “ ‘any reasonable attorney would agree [that it is] totally
and completely without merit.’ ” ’ ” (Parrish, supra, 3 Cal.5th at
p. 776, italics added.) “This rather lenient standard for bringing
a civil action reflects ‘the important public policy of avoiding the
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chilling of novel or debatable legal claims.’ ” (Wilson, supra,
28 Cal.4th at p. 817.)
The claims against plaintiff in the cross-complaint sought
to enjoin plaintiff and Jeffrey’s efforts to foreclose on the
property. Defendant relied on language in the purchase and
construction agreements reasonably supporting a colorable claim
that the attempted foreclosure by plaintiff and Jeffrey on the
second trust deed was premature. “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.” (Wilson, supra, 28 Cal.4th at
p. 822.)
Moreover, the court in the underlying action denied
Jeffrey’s motion to expunge the lis pendens. The denial order
reflected the court’s determination that defendant had
established the probable validity of the real property claim
asserted in the cross-complaint. (Code Civ. Proc., § 405.32 [“the
court shall order that the notice be expunged if the court finds
that the claimant has not established by a preponderance of the
evidence the probable validity of the real property claim”].)
“Claims that have succeeded at a hearing on the merits, even if
that result is subsequently reversed by the trial or appellate
court, are not so lacking in potential merit that a reasonable
attorney or litigant would necessarily have recognized their
13
frivolousness.” (Wilson, supra, 28 Cal.4th at pp. 817–818; see
also Fleishman v. Superior Court (2002) 102 Cal.App.4th 350,
354–355 [finding that issuance of preliminary injunction
conclusively established probable cause for bringing underlying
claims].)
To the extent events subsequent to the initial filing of the
cross-complaint may have rendered the continued prosecution of
the cross-complaint improper, plaintiff forfeited any argument by
failing to assert it. Plaintiff failed to demonstrate any probability
of establishing lack of probable cause.
2. Slander of title
2.1 First prong—protected activity
The slander of title cause of action was based solely on
defendant’s filing and recording of the lis pendens in conjunction
with the cross-complaint in the underlying action. An attorney’s
filing and recording of a notice of lis pendens falls squarely
within the statutory definition of protected activity. (Park 100
Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795,
806 (Park); Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009)
173 Cal.App.4th 1040, 1050.) Plaintiff offers no argument why
defendant’s recording of the lis pendens here is not properly
considered protected activity, other than her argument that
defendant’s conduct was unlawful which we already rejected.
2.2 Second prong—probability of prevailing
Plaintiff also offered no evidence or authority
demonstrating a reasonable probability of prevailing on her
slander of title cause of action.
In denying Jeffrey’s motion to expunge, the court in the
underlying action determined that the lis pendens alleged a real
property claim. Moreover, the lis pendens identified the action,
14
the parties to the action, and the property. It was properly
deemed a privileged publication under Civil Code section 47,
subdivision (b)(4). (Park, supra, 180 Cal.App.4th at pp. 813–814;
Rusheen, supra, 37 Cal.4th at p. 1057.)
DISPOSITION
The judgment in favor of Andrei V. Serpik is affirmed.
Serpik shall recover his costs of appeal.
VIRAMONTES, J.
WE CONCUR:
WILEY, Acting P. J.
SCHERB, J.
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