Rezvani v. Sterwerf

Filed 10/6/08 Rezvani v. Sterwerf 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Albert M. Sterwerf, in pro. per., for Defendant and Appellant.

Law Offices of Christopher K. Jafari and Christopher K. Jafari for Plaintiff and Respondent.

Arezoo Rezvani was sued by her mother-in-law, Badri Tehrani, soon after Tehranis son and Rezvani initiated marital dissolution proceedings. Tehrani, who is a child daycare provider, claimed Rezvani was guilty of slander and caused her to lose a client. One year later, on the eve of trial, Tehrani dismissed her lawsuit. Rezvani immediately filed an action for malicious prosecution against Tehrani and her counsel, Albert M. Sterwerf. The trial court denied Sterwerfs anti-SLAPP motion, and he filed this appeal. We affirm the order.

I

In June 2006, Tehrani filed an action in propria persona against her daughter-in-law for: (1) slander; (2) tortious interference with contract; (3) intentional interference with prospective economic advantage; and (4) negligent interference with prospective economic advantage. It was alleged Rezvani, who was divorcing Tehranis son, made false accusations about the poor quality of child care Tehrani was providing to her clients. Specifically, Tehrani accused Rezvani of encouraging one client, Holly Pozzebon, to remove her son from Tehranis licensed daycare facility.

In the complaint, Tehrani alleged the following facts: Rezvanis children were visiting their father who was residing at Tehranis home. Rezvani collected her children at the same time Pozzebon arrived to drop off her 11-month-old son. Later, Tehrani saw Rezvani and Pozzebon speaking together on the street outside the house. Just a few hours later, Pozzebon called Tehrani to ask about her son. Tehrani stated this unusual call aroused her suspicion Rezvani had said something bad about her. Pozzebon picked up her son two hours earlier than usual and expressed anger to Tehrani. Thereafter, Pozzebon did not return her son to Tehranis daycare and she stopped payment on a $150 check. Based on these events, Tehrani became convinced Rezvani had made false statements about her child care abilities and caused Tehrani to lose a client.

Three months later, Tehrani was visited by an investigator from the California Department of Social Services Community Care Licensing Division (the Department) based on an anonymous complaint made against her. Tehrani believed Rezvani and/or Pozzebon (based on Rezvanis false claims) contacted the Department. Tehrani asserted she was harmed by the complaint because her plans to expand her daycare facility were stopped until the Departments investigation was completed. Moreover, the investigators report is still in her file, where it can be seen by potential clients, even though she was cleared by the Department.

The complaint also alleged there was additional proof of defamation, stating, An individual from the Law Office of Albert M. Sterwerf spoke to . . . Pozzebon. . . . Pozzebon confirmed to this person . . . Rezvani[,] who was involved in a divorce action with . . . Tehranis son[,] told . . . Pozzebon false and defamatory information regarding . . . Tehranis moral and personal fitness to provide care for young children. Accepting these accusations as true, . . . Pozzebon removed her child from . . . Tehranis care to protect her child.

The trial was set for April 13, 2007. The parties conducted discovery, and Tehrani retained Sterwerf. The day before trial, Tehrani filed an ex parte application to vacate and continue the trial date based on the disappearance of her key witness, Pozzebon. The record does not contain the ruling on this motion.

However, the next item in the record is a letter from Pozzebon sent to Tehranis counsel on April 20, 2007. She wrote, My husband and I took our son out of [Tehranis] daycare because [she] neglected to address our concerns. We had several conversations with her regarding her taking care of kids that are sick and exposing them to the other children. We also talked to her about our discomfort with her leaving the kids with her husband (who speaks very little English). The above information is what I explained when social services contacted me regarding [the] daycare. [] As for [Tehranis] daughter-in-law, I was approached the morning that I took my son out. She expressed the same concerns of taking in sick children and the aspect that when calling [Tehranis] house, there are times that the babies were crying in the background. [] I do not feel that [Tehrani] . . . harmed my son in any way, however, I do not think that her daughter-in-law was wrong in talking with me about her concerns. (Italics added.)

Approximately one month later, on May 24, 2007, Tehrani sent a letter to her counsel authorizing dismissal of the lawsuit. On June 4, 2007, the courts minute order stated, Upon the request of plaintiff, case dismissed.

The following month, Rezvani filed a lawsuit against Tehrani and her counsel, Sterwerf, for malicious prosecution. Rezvani alleged the Tehranis frivolous case against her was dismissed on the day of trial not because of technical grounds or procedural reasons, and not through any type of negotiated settlement or agreement between the parties.

The malicious prosecution action was based on the following accusations. Three months before dismissing the case, Tehrani requested a continuance to prepare for trial and rejected Rezvanis many demands to dismiss the case. During discovery, Tehrani learned none of her suspicions about Rezvani were true. Tehrani admitted during her deposition she did not actually hear Rezvani make any defamatory statements. She only possessed a videotape, without audio, showing Rezvani speaking with a client outside her home. Discovery revealed Tehranis purported damages consisted merely of $50 for over-the-counter headache medicine. She claimed to suffer a future loss of income in the amount of $20,000, based on the assumption Pozzebon would have used her child care services for three years.

In her declaration, Rezvani asserted the motivation for the frivolous suit was her ongoing bitter divorce proceedings. Tehrani filed the action just a few months after the marital dissolution case was initiated. Rezvani asserted Sterwerfs paralegal is best friends with her estranged husband. In his deposition, Rezvanis husband testified he contemplated investing $50,000 in the same location as Sterwerfs law firm. It was discovered Rezvanis husband took a $350,000 line of credit from their home. He purportedly sent the money to Iran and now claimed the money had disappeared.

Rezvani alleged Tehrani, who speaks very little English, and required a Farsi interpreter at her deposition, could have not possibly initiated this action on her own and she required Sterwerfs firms assistance. Rezvani asserted Tehrani had not incurred any attorney fees because the paralegal, her sons best friend, drafted all the pleadings. She believed the litigation tactics used by Sterwerfs firm were malicious and abusive. The court sanctioned Tehrani three times for abuse of discovery. Rezvani asserted the motive [for] filing such a frivolous lawsuit was to vex, annoy, and wrongfully pressure [her] to settle . . . [the] dissolution of marriage case by forcing Rezvani to deal with the expenses involved in having to defend two actions at once. Rezvani claimed the action was initiated to force her to also waive her community property share of the $350,000 taken by her estranged husband from their homes equity.

Sterwerf filed a motion to strike the first amended complaint pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16.^[1] The motion was supported by Sterwerfs declaration, which claimed he did not become involved with the action until November 2006. Sterwerf stated he learned about the case when his paralegal asked for help handling Rezvanis motions to compel discovery and for sanctions. Tehrani had not responded to interrogatories and a deposition notice, and she claimed Rezvanis counsel told her she did not need to worry about them.

Sterwerf stated his first court appearance was on November 15, 2006, and Tehrani was ordered to pay $900 for discovery abuses. Later that day, he learned about the divorce proceeding involving Tehranis son. He learned dismissal of Tehranis lawsuit had become part of the divorce settlement negotiations. Sterwerf declared he advised the divorce attorney for Tehranis son that if any dismissal was to be part of the settlement he must have an opportunity to review the settlement to ensure both

(1) Tehrani understands the consequences of dismissing her action, and (2) she and I were protected from frivolous actions . . . . Sterwerf stated he was aware a settlement agreement was drafted and signed by Rezvani, which included dismissal of Tehranis lawsuit as one of the terms. However, the settlement fell through and Sterwerf proceeded on with discovery in Tehranis case.

Sterwerf declared he provided contact information for Pozzebon to Rezvani, and he stated Pozzebon had indicated to someone in his office she was willing to testify as to what . . . Rezvani told her in February, which was the basis of her complaint to [the Department]. Sterwerf stated his paralegal recalled Pozzebon saying she was told Tehrani beat the children, which caused her to remove her son and file a complaint with the Department.

At a deposition in January 2007, Sterwerf stated he objected when Rezvanis counsel questioned Tehrani about her professional relationship with his office. After the deposition, Rezvanis counsel indicated he had spoken to Pozzebon and opined Tehrani did not have a case. He threatened to file a malicious prosecution action and report Sterwerf to the California State Bar. Sterwerf then attempted to secure a written statement from Pozzebon. However, she stopped answering telephone calls from his office. When she finally returned his call, her story had changed. To prove this point, Sterwerf refers to several exhibits attached to his declaration. However, these exhibits are not contained in this record for us to review.

Sterwerf stated that on May 24, 2007, Tehrani decided to dismiss the case after she had a meeting with Rezvani and her husband about their children and their need to testify at the trial. Sterwerf claimed the children (ages 4 and 8) overheard Rezvanis conversation with Pozzebon. He asserts, Tehrani informed me that [Rezvani] and her husband both agreed that they did not want their children to testify in the case . . . and they reached an agreement that they wanted the case dismissed. [] . . . Tehrani informed me that [Rezvanis] husband, . . . Tehranis son, approached her and convinced her to dismiss the matter so that her grandchildren would not have to testify against their mother. Sterwerf stated he was unable to inform the court of the dismissal until June 4, 2007, due to a medical situation. Sterwerfs oldest child had surgery that week.

Rezvani filed opposition to the anti-SLAPP motion, and objected to portions of Sterwerfs declaration. Rezvani filed exhibits and another declaration protesting many of Sterwerfs statements as untrue. She clarified, There was never a conversation about any of the children testifying in court. There was no settlement reached on this frivolous lawsuit . . . .

Sterwerf filed a reply to the opposition and responded to Rezvanis objections to his declaration. He also objected to portions of Rezvanis declaration and requested sanctions.

The court refused to rule on Rezvanis generalized blanket objections to Sterwerfs declaration. Nevertheless, the court denied the special motion to strike, stating, Although the action involves protected activity (Jarrow Formulas, Inc. v. LaMarche [(2003)] 31 Cal.4th 728, 734-735 . . .[(Jarrow)]), [Rezvani] has produced sufficient evidence to demonstrate a probability of prevailing on her claim. (Navellier v. Sletten [(2002)] 29 Cal.4th 82, 88 . . . .)

The court sustained seven objections to Rezvanis declaration and overruled all the others. It excluded statements concerning allegations Rezvanis

husband stole money from the community, several legal conclusions, and commentary on portions of Tehranis deposition. However, the court noted Sterwerf had not objected to any of Rezvanis exhibits, including Tehranis deposition transcript. The court determined this evidence, along with the relevant portions of Rezvanis declaration, were sufficient to defeat the anti-SLAPP motion.

II

A. The general law regarding anti-SLAPP motions.

Whether section 425.16 applies, and whether the plaintiff has shown a probability of prevailing, are both questions we review independently on appeal. [Citations.] [] Section 425.16 provides in pertinent part: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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).) (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1396-1397 (Sycamore).)

Resolution of a special motion to strike 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. The moving defendants 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. [Citation.] 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.] (Sycamore, supra, 157 Cal.App.4th at p. 1397.)

For purposes of an anti-SLAPP motion, [t]he court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the courts responsibility is to accept as true the evidence favorable to the plaintiff . . . . [Citation.] A plaintiff need only establish that his or her claim has minimal merit [citation] to avoid being stricken as a SLAPP. [Citation.] [Citation.] (Sycamore, supra, 157 Cal.App.4th at p. 1397.)

B. Rezvanis claim arises from a protected activity.

We agree with the trial courts conclusions that Sterwerf met his burden of showing Rezvanis malicious prosecution action arose from protected petitioning activities. A protected activity is any act that is completed in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue. ( 425.16, subd. (b)(1).) Filing a lawsuit is an exercise of a partys constitutional right of petition [citation], and claims for malicious prosecution may thus be subject to the anti-SLAPP statute. ([Jarrow, supra,] 31 Cal.4th [at pp.] 733-741 . . . .) (Sycamore, supra, 157 Cal.App.4th at pp. 1397-1398.)

C. Rezvani demonstrated a probability of prevailing on her malicious prosecution claimagainst both defendants.

Rezvani had the burden to 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.] (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) To establish her malicious prosecution claim, Rezvani was required to plead and prove the prior action: (1) was commenced by or at the direction of the defendant[s] and was pursued to a legal termination in [her] favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]. [Citation.] (Crowley v. Katleman (1994) 8 Cal.4th 666, 676 (Crowley).) [C]ontinuing to prosecute a lawsuit discovered to lack probable cause[] also provides grounds for a malicious prosecution claim. (Zamos v. Stroud (2004)

32 Cal.4th 958, 973 (Zamos).) Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset. (Id. at p. 969.)

(i) The first element commencement and favorable termination

As for the commencement factor, there was no dispute Tehrani filed the action against Rezvani in June 2006, and Sterwerf admitted he was actively involved in the case by November 2006. The parties dispute whether Sterwerfs firm was involved earlier. Nevertheless, A person who had no part in the commencement of the action, but who participated in it at a later time, may be held liable for malicious prosecution. [Citations.] (Sycamore, supra, 157 Cal.App.4th at p. 1398.) The dismissal was requested one year later in June 2007.

Rezvani also met her burden of demonstrating facts showing the underlying litigation was terminated in her favor. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort . . . [of malicious prosecution]. [Citation.] . . . . [] A favorable termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the meritsreflecting on neither innocence of nor responsibility for the alleged misconductthe termination is not favorable in the sense it would support a subsequent action for malicious prosecution. [Citation.] [W]hen the underlying action is terminated in some manner other than by a judgment on the merits, the court examines the record to see if the disposition reflects the opinion of the court or the prosecuting party that the action would not succeed. [Citations.] [Citation.] Should a conflict arise as to the circumstances of the termination, the determination of the reasons underlying the dismissal is a question of fact. [Citation.] [Citation.] (Sycamore, supra, 157 Cal.App.4th at p. 1399.)

Sterwerf contends the trial court erred in concluding the voluntary dismissal of Tehranis claims should be considered a favorable termination because the courts order did not reflect Rezvanis innocence. The signed minute order simply stated, Upon the request of the plaintiff, case dismissed. Sterwerf asserts the case is like Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1049 (Contemporary Services), where there was a lack of adverse evidentiary or procedural rulings to indicate the case was untenable.

However, the holding in Contemporary Services was based on other factors not discussed by Sterwerf. In that case, the appellate court determined the record showed defendants dismissed the case because they could not afford to pursue the matter, not that they lost faith in the merit of their claims. The record does not show defendants sustained any adverse rulings in the case, or otherwise had reason to believe their claims would be unsuccessful. (Contemporary Services, supra, 152 Cal.App.4that p. 1057.) It is well settled that a voluntary dismissal of a complaint to avoid further fees and costs does not constitute a termination in the defendants favor. (Ibid., citing Oprian v. Goldrich Kest & Associates (1990) 220 Cal.App.3d 337, 343.)

The appellate court also determined the Contemporary Services plaintiffs failed to make a showing of facts that would refute the claim the case was dismissed to avoid fees and costs. (Contemporary Services, supra, 152 Cal.App.4th at p. 1057.) Plaintiffs speculated the case was dismissed before a key witness was due to be deposed because his deposition testimony would necessarily reveal defendants claims lacked merit. (Ibid.) Specifically, plaintiffs argued a key witness had cancelled a prior deposition date, claiming to be ill, but he had been seen conducting business later that same day at a convention. (Ibid.) However, defendants presented solid proof the key witness had in fact suffered from the flu that day and was prescribed bed rest. (Id.at

pp. 1057-1058.) They submitted the treating doctors declaration in addition to the key witnesss declaration stating he went to the convention for only a short time before returning home to bed. (Ibid.) The appellate court concluded the evidence showed the deposition was canceled due to illness, not because defendants feared the deposition testimony would show their claims lacked merit. (Id. at p. 1058.)

Contemporary Services is not analogous to the case before us. Rezvani made a prima facie showing of facts sufficient to prove the voluntary dismissal of the complaint constituted a favorable termination on the merits. She presented evidence Tehrani and her counsel had reason to believe the lawsuit would not be successful. As noted by the trial court, discovery in the underlying action established the claim was not well founded. Tehrani stated at her deposition she merely suspected, but had no direct proof, Rezvani had spoken negatively to Pozzebon. A videotape showed the two women spoke briefly, but it lacked sound. Sterwerf declared he had not spoken personally to Pozzebon, but she had spoken to his office and was willing to testify as to what . . . Rezvani said. However, when he later attempted to secure a written statement, Pozzebon indicated she left Tehranis daycare because Tehrani had failed to address her concerns. In other words, although Rezvani expressed some of Pozzebons same concerns, the statements did not effect her decision to remove her son from the daycare. Pozzebon, acting alone, made the complaint to the daycare licensing department. Moreover, during discovery Tehrani admitted her damages amounted to only $50 for over-the-counter headache medicine. The loss of income claim essentially evaporated once Pozzebon stated she had her own reasons for leaving the daycare. Based on the above evidence, Rezvani asserts it can be reasonably inferred Tehranis case was instigated to pressure her into settling her divorce with Tehranis son. We agree the evidence supports the argument Tehrani and her counsel dismissed the case on the eve of trial because they knew it was meritless.

In Sterwerfs opposition, he offered a different reason for the dismissal, creating an issue of fact. In his declaration, Sterwerf refused to admit the dismissal was due to the lack of evidence, or because the key witness (Pozzebon) had produced a written statement that did not support the case. Rather, Sterwerf suggests Pozzebon changed her story due to witness tampering, and he believed her written statement perhaps supported a claim of slander. He declared the lawsuit was dismissed solely because Tehrani told him she was pressured by her son and Rezvani to drop the lawsuit so that her grandchildren would not be forced to testify against their mother. Sterwerf was advised they reached an agreement and that they wanted the case dismissed. But unlike the Contemporary Services case, Sterwerf failed to submit evidence from someone with first hand knowledge of the purported verbal agreement, such as a declaration from Tehrani or her son.

In her reply, Rezvani directly refuted Sterwerfs contention with her first hand knowledge of the events. Rezvani declared the action was not dismissed to spare the children from testifying. Specifically, she stated, I never entered into any type of settlement discussion with any of the defendants to settle this case, because I know I was innocent. There was never a conversation about any of the children testifying in court. There was no settlement reached on this frivolous lawsuit brought by the defendants.

Neither this court nor the trial court, in considering a special motion to strike can weigh the evidence or make credibility determinations. [Citations.] (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.) Rather, once the plaintiff makes a prima facie showing of facts which would support a judgment in his or her favor, the court will consider[] the defendants opposing evidence, but only to determine if it defeats the plaintiffs showing as a matter of law. [Citation.] [Citation.] (Ross v. Kish (2006) 145 Cal.App.4th 188, 197 (Ross).) Whether the parties met and agreed the case should be dismissed to protect the children is a question of fact. We must accept as true the evidence favorable to the plaintiff, and we agree with the trial court that by her declaration she demonstrated a favorable termination. (See Sycamore, supra,

157 Cal.App.4th at p. 1397 [A plaintiff need only establish that his or her claim has minimal merit [citation] to avoid being stricken as a SLAPP. [Citation.]].)

(ii) The second element lack of probable cause

An action is deemed to have been pursued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted. The court must determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. [Citation.] The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted. [Citation.] [Citation.] The test the court is to apply is whether any reasonable attorney would have thought the claim tenable . . . . [Citation.] The tort of malicious prosecution also includes the act of continuing to prosecute a lawsuit discovered to lack probable cause. [Citation.] In determining the probable cause issue, the same standard applies to the continuation as to the initiation of a suit. [Citation.] (Sycamore, supra, 157 Cal.App.4th at p. 1402.)

In analyzing the issue of probable cause in a malicious prosecution context, the trial court must consider both the factual circumstances established by the evidence and the legal theory upon which relief is sought. A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him. [Citation.] [] In determining whether the prior action was legally tenable, i.e., whether the action was supported by probable cause, the court is to construe the allegations of the underlying complaint liberally, in a light most favorable to the malicious prosecution defendant. [Citation.] (Sycamore, supra, 157 Cal.App.4th

at p. 1402.)

Construing the allegations of Tehranis underlying complaint in the light most favorable to her, a reasonable attorney may have initially believed the claims were tenable. However, as discussed above, discovery quickly revealed the claim was not well founded. Tehrani merely suspected wrongdoing, but had no actual proof. More importantly, there was strong evidence suggesting an ulterior motive for Tehranis lawsuit.

Specifically, Rezvani presented evidence Sterwerfs paralegal and Tehranis son were best friends and Rezvani discovered Tehrani was not paying any litigation costs. Rezvani declared Tehrani told her they would break me down financially until I give [sic] up on the divorce case. Sterwerf admitted in his declaration that he was involved in the divorce settlement negotiations between Rezvani and her husband because Tehranis lawsuit was being used as a bargaining chip. Sterwerf acknowledged dismissal of Tehranis lawsuit plus $100,000 to Rezvani was drafted in one proposed settlement agreement. Thus, early on Tehrani appeared willing and ready to drop her lawsuit if Rezvani settled the divorce. The above evidence supports Rezvanis claim the lawsuit was a sham, initiated to place financial pressure on her to settle. An objective, reasonable attorney would certainly question whether Tehranis claim was tenable given the lack of evidence and Tehranis eagerness to drop her lawsuit and give up her damages to help her son with his divorce.

It was not as if Tehrani and her counsel were not warned Rezvani knew the lawsuit was a sham. Rezvanis counsel repeatedly requested Tehrani dismiss her meritless lawsuit. After Tehranis deposition, Rezvanis counsel specifically advised Tehranis counsel that his key witness, Pozzebon, was not going to help the case. He threatened to report Sterwerf to the California State Bar, and to file a malicious prosecution action, if the case was not immediately dropped. Sterwerf declared this was simply a temper tantrum. Yet, Sterwerf who had not yet personally spoken to Pozzebon admitted he then decided to secure a written statement from her. It had been six months since the case was filed. Pozzebon was uncooperative and after four months, he finally received her written statement and discovered it utterly failed to support the crux of Tehranis case. Approximately one month later, Tehrani requested Sterwerf dismiss the case. It is a question for the trier of fact if the excuses Sterwerf offers for the failure to dismiss the action earlier are viable. At this stage of the proceedings, we agree with the trial court that Rezvani met her burden of proving a reasonable attorney would have thought the claim was untenable after conducting minimal discovery in the case.

(iii) The third element malice

The malice element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action

. . . . The malice required in an action for malicious prosecution is not limited to actual hostility or ill will toward [the] plaintiff but exists when the proceedings are instituted primarily for an improper purpose. [Citations.] [Citation.] [Citation.] Although lack of probable cause alone does not automatically equate to a finding of malice, it is a factor that may be considered. [Citation.] [M]alice may still be inferred when a party knowingly brings an action without probable cause. [Citations.] [Citation.] (Ross, supra, 145 Cal.App.4th at p. 204.)

As previously discussed, the record in this case is sufficient to permit a reasonable trier of fact to infer Tehrani sued her daughter-in-law in retaliation for a perceived personal slight, and to assert pressure for her sons divorce settlement. The evidence suggests both Tehrani and her counsel knew the claims for slander, tortious interference with contract, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage lacked factual and legal support. We reach this conclusion because the evidence suggests Tehrani was ready early on in the case to file a dismissal in exchange for a favorable divorce settlement for her son. She was not paying legal fees, and Tehrani admitted she suffered no real damages. Thus, a trier of fact reasonably could infer Tehrani filed the action with malice and both parties continued to prosecute the action with malice.

D. The courts rulings

Sterwerf asserts the trial court was confused about the facts of this case, it abused its discretion, and it failed to properly apply the law when denying the anti-SLAPP motion. Apparently, we need to remind Sterwerf the issue of whether section 425.16 applies, and whether Rezvani has shown a probability of prevailing, are both questions we review independently on appeal. (Sycamore, supra,

157 Cal.App.4th at p. 1396.) This means we are not concerned with reviewing the trial courts discretion or legal analysis. As shown in the previous sections, we have independently reviewed the record, and applicable case law, and have concluded

(1) section 425.16 applies, and (2) Rezvani met her burden of proof to defeat the motion.

Sterwerf criticizes the trial court for relying on facts that lacked substantial evidence to support them. In our independent review of the record, we have relied on many of the same facts/evidence, consisting of deposition transcripts, declarations, letters, and other written documents. We found no basis to exclude any of the relevant evidence from our determination.

Finally, we do not agree Sterwerfs claim Rezvanis declaration was entirely irrelevant and, therefore, should not have been considered. The trial court properly sustained evidentiary objections to seven statements in Rezvanis declaration for relating to facts Rezvani lacked personal knowledge.

Objections to the remaining statements were correctly overruled. For example, Sterwerf asserts Rezvanis statement Tehranis case was not dismissed by settlement or to spare the children from testifying is inadmissible opinion testimony. He maintains Contemporary Services, supra, 152 Cal.App.4th at pages 1056-1057, clearly held Rezvanis opinions about why the action was dismissed are irrelevant. He has misconstrued the testimony and the case law.

First, Contemporary Services simply stated the general rule that a termination by dismissal is favorable when it reflects the opinion of the dismissing party the action lacked merit and other opinions are irrelevant. (Id. at p. 1057.) In that case, the court considered the reasons given by both sides for the dismissal and determined the evidence only supported the dismissing partys version that it was dismissed to save money. In our case, the dismissing party asserted the action was dismissed because Rezvani and her husband asked Tehrani to dismiss the case to protect the children from testifying. The evidence was presented by Sterwerfs declaration recounting what Tehrani had told him. Rezvani refuted this claim based on her personal knowledge she did not meet with her husband to discuss settlement with Tehrani. She declared, There was never a conversation about any of the children testifying in court, and there was no agreement on the matter. Such testimony was properly considered as proof of the dismissing partys opinion the action lacked merit.

Sterwerf also asserts the trial court improperly relied solely on Tehranis deposition as providing substantial evidence her lawsuit was not well founded. This argument misrepresents the courts ruling. But more importantly, in our independent review, we considered Tehranis entire deposition in conjunction with the other depositions and documentary evidence. As described in more detail above, we conclude the evidence supports denial of the anti-SLAPP motion.

III

The order is affirmed. Sterwerfs motion for judicial notice is granted. Rezvanis motion to strike several exhibits from the appellants appendix is denied. Respondent (Rezvani) shall recover her costs on appeal.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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^[1] All further statutory references are to the Code of Civil Procedure.