Zhang v. Cheng





















Filed 1/28/13 Zhang v. Cheng CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
ONE




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SHUMIN ZHANG, Plaintiff and Appellant, v. PAUL P. CHENG et al., Defendants and Respondents.

B238290 (Los Angeles County Super. Ct. No. BC466079)

APPEAL from
orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Malcolm H. Mackey, Judge. Affirmed.

Shumin
Zhang, in pro. per.; Law Offices of Stefan R. Pancer and Stefan Robert
Pancer for Plaintiff and Appellant.

Law Offices
of Paul P. Cheng and Jie Lian for Defendants and Respondents.

__________________________________________
clear=all >

In a prior
action, two employees represented by successive attorneys sued their corporate
employer and two managerial employees — a husband and
wife — alleging violations of the Labor Code and other claims. At trial, the plaintiff-employees prevailed
on their Labor Code claims against the corporate employer and the husband, who
was found to be an alter ego of the corporation. The wife was exonerated on all claims.

The wife
then filed the present action against one of the employees, his spouse, and all
of his attorneys, alleging claims for malicious
prosecution, abuse of process, and defamation, among others. The attorneys, the employee, and his spouse
responded with special motions to strike, contending the action was a strategic
lawsuit against public participation (SLAPP) (Code Civ. Proc., § 425.16;
undesignated section references are to that code). The trial court granted the motions. This appeal followed.

We conclude
the trial court properly found that all of the causes of action fall within the
scope of the anti‑SLAPP statute and that the wife did not demonstrate a
reasonable likelihood of prevailing on her claims. We therefore affirm.

>I

>BACKGROUND

The facts
and allegations in this appeal are taken from the pleadings and the exhibits
submitted in connection with the anti-SLAPP motions.

A. Prior Lawsuits

On
June 3, 2009, Attorney Paul P. Cheng filed suit on behalf of Jia Nong
Guo against Guo’s employer, Hong Yei Group, Inc. (Guo v. Han (Super. Ct. L.A. County, 2011, No. BC415219)). The corporation operated the Hong Yei
Restaurant, where Guo worked. The
complaint also named as defendants two managerial employees, Jungfeng Han and Shumin
Zhang (husband and wife respectively), alleging they were alter egos of the
corporate defendant. The complaint
alleged that defendants had violated several provisions of the Labor Code; it
also included common law claims and a claim under the “Unfair Competition Law”
(Bus. & Prof. Code, §§ 17200–17210).

On
July 2, 2009, Attorney Cheng filed a virtually identical suit on behalf of
another employee, Jian Hui Han, against the same defendants (>Han v. Han (Super. Ct. L.A. County,
2011, No. BC417128)). The lawsuits
were consolidated. (For convenience and
clarity, we will refer to the consolidated lawsuits as the “prior action” and
to the two plaintiffs in the consolidated action as the “employees.”)

On or about
January 27, 2010, Attorney Cheng substituted out of the case and was
replaced by Attorney George L. Young.
Bryan Y. Wong is an attorney who works for Young. On or about June 21, 2010, Attorney
Young substituted out of the case and was replaced by Attorney Steven L.
Sugars. Sugars represented the employees
at trial.

Beginning
on July 19, 2010, the prior action was tried to the court, Judge
Robert L. Hess presiding. After a
seven-day trial, the court found in favor of the employees on their Labor Code
claims for the nonpayment of overtime compensation (see Lab. Code, § 1194), the
failure to provide meal periods (see id.,
§ 226.7),
and the failure to provide accurate wage statements (see id., § 226,
subd. (a)). The employees
did not prevail on their other claims.
On November 9, 2010, the trial court issued a statement of
decision. On January 5, 2011, the
trial court entered judgment in favor of Jia Nong Guo in the amount of
$63,292.13 and in favor of Jian Hui Han in the amount of $53,785.02. The judgment stated that the employees were
entitled to an award of costs and reasonable attorney fees. The trial court agreed with the employees
that defendant Jungfeng Han (husband) was the alter ego of the corporate
defendant and that he was liable for the corporation’s debts. The court found that defendant Shumin Zhang
(wife) was not an alter ego of the corporation and, thus, was not liable on any
claim. The judgment incorporated the
November 9, 2010 statement of decision.

Zhang filed
a memorandum of costs, seeking filing fees and an award of $5,000 in attorney
fees on the ground that the claims against her, including the assertion of the
alter ego doctrine, were frivolous. The
employees filed a motion to tax costs.
At a hearing on or about July 7, 2011, the trial court granted the
motion. The following colloquy took
place between the trial court and Zhang:

“The
Court: The motion to tax costs is
granted. The costs allowed will be $470
for your filing fees. There is nothing
else in this that is properly supported.
In the face of an appropriate objection, I have to strike the costs
filed.

“Zhang: Can I ask you one more question? Now the case is over I just want to ask you,
I am entitled to recover my attorneys fees?

“The
Court: I don’t think you are, ma’am.

“Zhang: Why?
How can they sue people frivolously and maliciously?

“The
Court: It was not frivolous. You and your husband ran this
restaurant. You got up and testified
that it was really your husband’s business.
You were only an employee.
Although there was some doubt about that, they did not persuade me that
. . . you should be held liable.
That doesn’t make it frivolous.
They didn’t succeed, but it did not make it completely without merit.”

B. Present Lawsuit

On
July 25, 2011, Zhang, in propria persona, filed the present action against
(1) Jian Hui Han (Han), one of the two employees who brought the prior
action, (2) Han’s wife, (3) all of the attorneys who had represented
Han at any point in the prior action (Attorneys Cheng, Young, Wong, and
Sugars), and (4) the attorneys’ respective law offices (collectively
defendants).

The
complaint consisted of eight causes of action:
malicious prosecution, abuse of process, conspiracy, defamation,
intentional infliction of emotional distress, negligent infliction of emotional
distress, “intentional tort,” and violation of the Unfair Competition Law. It also contained a request for punitive
damages.

The
material portion of the complaint began by quoting four paragraphs from the
July 2, 2009 complaint Han had filed against Zhang. The quoted material alleged Zhang was the
alter ego of Hong Yei Group, Inc., and she had violated the Unfair Competition
Act and various provisions of the Labor Code in operating the Hong Yei
Restaurant. The remaining allegations
were based on what allegedly occurred in the prior action, as follows.

Attorney
Cheng conspired with Han to obtain a fraudulent waiver of “court fees.” An attorney representing Zhang offered to
settle the prior action, but Cheng rejected the offer. Zhang filed an answer. Cheng filed a “notice of settlement of entire
case” with respect to a “third party” in which he “declared that ‘[a] request
for dismissal will be filed no later than 3/22/10,’” and he thereafter
substituted out of the case. Cheng was
replaced by Attorney Young, who filed a notice stating that trial would
commence on June 30, 2010. Cheng
and Young “failed to keep their promises [to] dismiss[] [the] . . .
complaint by 3/22/10.” Young later
substituted out and was replaced by Attorney Sugars, who failed to appear on
the date set for trial. As a result, the
trial court imposed monetary sanctions on Sugars and ordered Zhang’s attorney
to submit an “‘Application for Sanctions, Attorney’s fees, and [the] cost of
[a] telephonic appearance.’” Zhang’s
attorney did so. Attorneys Young and
Wong filed a trial brief, falsely alleging that Zhang was liable to Han. Subsequently, Wong and Sugars filed a “Trial
Brief on the Issue of Alter Ego Liability,” falsely accusing Zhang of
“commingling . . . funds in the form of cash, . . . failing
to pay taxes, . . . failing to maintain accounting record, and
. . . using . . . the corporation as [a] subterfuge for
illegal transactions.” In the prior
action, Han did not sign the verifications on his responses to Zhang’s
discovery but falsely stated his wife had forged his signature even though
Cheng had forged Han’s signature. Sugars
and his client, Han, filed a frivolous motion for sanctions against Zhang, her
husband, her attorney, and Hong Yei Group, Inc.
The trial court denied the motion.
The court also entered judgment in Zhang’s favor.

C. Anti-SLAPP Motions

In response
to Zhang’s complaint, defendants filed anti-SLAPP motions, contending that all
of her claims were based on statements or writings “made before a
. . . judicial proceeding . . . [or] in connection with an
issue under consideration or review by a . . . judicial body” (§ 425.16,
subd. (e)(1), (2)) and that she was unlikely to prevail on her claims (see
id., subd. (b)(1)). In addressing Zhang’s likelihood of success,
defendants argued that the malicious prosecution claim was meritless because
they had probable cause to file the prior action. For that proposition, defendants relied on
excerpts from the statement of decision in the prior action and the statements
made by Judge Hess at the hearing on defendants’ motion to tax costs. With respect to Zhang’s other claims,
defendants asserted they were barred by the litigation privilege (Civ. Code, § 47,
subd. (b)).

In her
opposition, Zhang argued (1) the motions should be denied because the
hearing date was not within 30 days after the motions were served,
(2) defendants had engaged in “abusive discovery,” and (3) the
litigation privilege did not apply.
Zhang also submitted several exhibits, all of which — with
the exception of a Chinese advertisement for the restaurant — were
created in connection with the prior action.

On
October 12, 2011, the trial court, Judge Malcolm H. Mackey presiding,
heard argument on the motions and granted them.
On November 4, 2011, the court entered a formal order to that
effect. By minute order dated
June 14, 2012, the trial court awarded defendants $13,300 in attorney fees
and $1,975 in costs. Zhang appealed.

>II

>DISCUSSION

name="citeas((Cite_as:_2012_WL_3679639,_*4_(Ca">Our review of an order
granting an anti-SLAPP motion is de novo. (See Flatley v. Mauro (2006)
39 Cal.4th 299, 325.)

On appeal,
Zhang contends (1) the trial court should have denied the anti-SLAPP
motions because they were not set for hearing within 30 days after they were
served, (2) her claims did not fall within the scope of the anti-SLAPP
statute, and (3) the evidence showed that defendants had committed
extortion.

We agree
with the arguments advanced by defendants:
(1) the motions were timely set for hearing; (2) all of
Zhang’s claims fall within the scope of the anti-SLAPP statute; and
(3) Zhang is not likely to prevail on any of her claims.

A. Timeliness of Hearing Date on Anti-SLAPP Motions

Zhang
contends the anti-SLAPP motions should have been denied because the hearing
date was not within 30 days after the motions were served. We disagree.

>Former section 425.16,
subdivision (f), stated: “The
special motion may be filed within 60 days of the service of the complaint or,
in the court’s discretion, at any later time upon terms it deems proper. The motion shall be noticed for hearing> not more than 30 days after service
unless the docket conditions of the court require a later hearing.” (Stats. 1999, ch. 960, § 1, italics
added.)

On
October 5, 2005, the Legislature amended section 425.16,
subdivision (f), as an urgency statute effective on that date. (Stats. 2005, ch. 535, §§ 1,
4.) Subdivision (f), as amended,
states: “The special motion may be filed
within 60 days of the service of the complaint or, in the court’s discretion,
at any later time upon terms it deems proper.
The motion shall be scheduled
by the clerk of the court for a hearing not more than 30 days after the service of the motion >unless
the docket conditions of the court require a later hearing.”
(Italics & boldface added.)

“Thus, the
Legislature expressly abrogated the rule on which [Zhang] relies. Section 425.16, subdivision (f), as
amended, requires the court clerk to schedule a special motion to strike for a
hearing no more than 30 days after the motion is served if such a hearing date
is available on the court’s docket, but does not require the moving party to
ensure that the hearing is so scheduled and does not justify the denial of a
special motion to strike solely because the motion was not scheduled for a
hearing within 30 days after the motion was served.” (Hall
v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.)

B. Anti-SLAPP Law

“‘The
Legislature enacted the anti-SLAPP statute to protect defendants
. . . from interference with the valid exercise of their
constitutional rights, particularly the right of freedom of speech and the
right to petition the government for the redress of grievances.’” (Contemporary Services Corp. v. Staff Pro
Inc. (2007) 152 Cal.App.4th 1043, 1052.)

The statute provides that “[a] cause
of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability
that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1), italics added.) The statute is to “be broadly construed to
encourage continued participation in free speech and petition activities.” (Wanland v. Law Offices of Mastagni,
Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22; accord,
§ 425.16, subd. (a).)

“[T]he statutory phrase ‘cause of
action . . . arising from’ means simply that the defendant’s
act underlying the plaintiff’s cause of action must itself have been
an act in furtherance of the right of petition or free speech. . . . In the anti-name="SR;2603">SLAPP context, the critical point is whether the plaintiff’s
cause of action itself was based on an act in furtherance of the
defendant’s right of petition or free speech. . . . ‘A defendant meets this burden by
demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e).’” (City of Cotati v. Cashman (2002)
29 Cal.4th 69, 78, some italics added, citations omitted; accord, Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734 [“‘arising
from’” encompasses any act “based on” speech or petitioning activity]; Episcopal
Church Cases (2009) 45 Cal.4th 467, 477 [same]; City of Santa
Monica v. Stewart (2005) 126 Cal.App.4th 43, 72 [same].)

Section 425.16,
subdivision (e) states: “As used in
[the anti-SLAPP statute,] ‘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 legislative, executive, or judicial proceeding, or any other official proceeding
authorized by law, (2) any written or oral statement or writing
made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in connection with
a public issue or an issue of public interest.”
(Italics added; see Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1117–1118, 1123.)

name="SDU_5">“Clauses (3)
and (4) of section 425.16, subdivision (e), concerning statements
made in public fora and ‘other conduct’ implicating speech or petition rights,
include an express ‘issue of public interest’ limitation; clauses (1) and
(2), concerning statements made before or in connection with issues under
review by official proceedings, contain no such limitation.” (Briggs v. Eden Council for Hope &
Opportunity, supra,
19 Cal.4th at p. 1117.) Thus,
if a communication falls within either of the “official proceeding” clauses,
the anti-SLAPP statute applies without a separate showing
that a public issue or an issue of public interest is present. (See Briggs, at pp. 1117–1121, 1123; Moore v. Shaw (2004)
116 Cal.App.4th 182, 196.) In
drafting the statute, the Legislature concluded that authorized official
proceedings necessarily involve a public issue or an issue of public
interest. (Briggs, at p. 1118.)

“The anti-SLAPP
statute’s definitional focus is not the form of the plaintiff’s cause of action
but, rather, the defendant’s activity that gives rise to his or her
asserted liability — and whether that activity constitutes protected
speech or petitioning. Evidently, ‘[t]he
Legislature recognized that “all kinds of claims could achieve the objective of
a SLAPP suit — to interfere with and burden the
defendant’s exercise of his or her rights.”’ . . . ‘Considering the
purpose of the [anti-SLAPP] provision, . . .
the nature or form of the action is not what is critical but rather that it is
against a person who has exercised certain rights.’” (Navellier v. Sletten (2002)
29 Cal.4th 82, 92–93, citation omitted.)

In ruling on an anti-name="SR;3175">SLAPP motion, a trial court “engage[s] in a two-name="SR;3185">step process. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from href="http://www.mcmillanlaw.com/">protected
activity. The
moving defendant’s burden is to demonstrate that the act or acts of which the
plaintiff complains were taken ‘in furtherance of the [defendant]’s right of
petition or free speech under the United States or California Constitution in
connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) 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. Under section 425.16,
subdivision (b)(2), the trial court in making these determinations
considers ‘the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)
“The term ‘probability [of prevailing]’ is synonymous with ‘reasonable
probability.’” (Schoendorf v.
U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 238.)

“The party making a special motion
to strike must make a prima facie showing that the plaintiff’s cause of action
arises from the defendant’s free speech or petition
activity. . . . Once the
defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to . . .
“make a prima facie showing of facts which would, if proved at trial,
support a judgment in plaintiff’s favor.”’”
(Rezec v. Sony Pictures Entertainment, Inc. (2004)
116 Cal.App.4th 135, 139, citations omitted; accord, Club Members for
an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315–316; McGarry
v. University of San Diego (2007) 154 Cal.App.4th 97, 108.)

“In order to establish a probability
of prevailing on the claim . . . , a plaintiff responding to an
anti-SLAPP motion must ‘“state[ ] and
substantiate[ ] a legally sufficient claim.”’ . . . 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.’” (Wilson v. Parker,
Covert & Chidester (2002) 28 Cal.4th 811, 821, citation
omitted.)

An attorney
who has made statements or writings on behalf of his or her client in
connection with litigation is entitled to the protection of the anti‑SLAPP
statute to the same extent as the client.
(See Simpson Strong-Tie Company,
Inc. v. Gore (2010) 49 Cal.4th 12 [affirming judgment granting
anti-SLAPP motion brought by attorney]; Taheri
Law Group v. Evans (2008) 160 Cal.App.4th 482, 485–489; >Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th
624, 629; White v. Lieberman (2002)
103 Cal.App.4th 210, 220–221; Rylaarsdam et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2012) ¶ 7:601,
p. 7(II)‑10.)

B. Protected Activity

For
purposes of determining whether Zhang’s claims are based on activity protected
by the anti-SLAPP statute, we first examine the malicious prosecution claim and
then turn our attention to the other claims.

1. Malicious Prosecution

Zhang’s
claim for malicious prosecution is
based on defendants’ filing and pursuit of civil litigation, that is, the prior
action. Her malicious prosecution claim,
by its very nature, falls within the scope of the anti-SLAPP
statute. (See Jarrow Formulas, Inc.
v. LaMarche, supra,
31 Cal.4th 728, 736–741 & fn. 6; Briggs v. Eden Council
for Hope & Opportunity, supra,
19 Cal.4th at p. 1115.)

name="SDU_6">name="citeas((Cite_as:_2011_WL_590595,_*6_(Cal">Thus, Zhang has the burden — in
the words of the statute — “[to] establish[ ]
that there is a probability that [she] will prevail on [her] claim.” (§ 425.16, subd. (b)(1).) “The plaintiff’s showing of facts must
consist of evidence that would be admissible at trial. . . . The
court cannot weigh the evidence, but must determine whether the evidence is
sufficient to support a judgment in the plaintiff’s favor as a matter of law,
as on a motion for summary judgment. . . . If the plaintiff
presents a sufficient prima facie showing of facts, the moving defendant can
defeat the plaintiff’s evidentiary showing only if the defendant’s evidence
establishes as a matter of law that the plaintiff cannot prevail.” (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th
at p. 1346, citations omitted.)
“[T]he court’s responsibility is to accept as true the evidence
favorable to the plaintiff.” (HMS
Capital, Inc. v. Lawyers Title Co.
(2004) 118 Cal.App.4th 204, 212.)

To prevail on her
cause of action for malicious prosecution,
Zhang must prove she was previously sued on a claim brought without probable
cause, initiated with malice, and pursued to a termination in her favor. (See Slaney v. Ranger Ins. Co. (2004)
115 Cal.App.4th 306, 318.) There is
no dispute here that the prior action terminated in her favor.

“Probable cause is a
low threshold designed to protect a litigant’s right to assert arguable legal
claims even if the claims are extremely unlikely to succeed. ‘[T]he standard of probable cause to bring a
civil suit [is] equivalent to that for determining the frivolousness of an
appeal . . . , i.e., probable cause exists if “any reasonable
attorney would have thought the claim tenable.” . . . This rather
lenient standard for bringing a civil action reflects “the important public
policy of avoiding the chilling of novel or debatable legal claims.”
. . . Attorneys and litigants . . . “‘have a right to present
issues that are arguably correct, even if it is extremely unlikely that they
will win . . . .’” . . . Only those actions that “‘any
reasonable attorney would agree [are] totally and completely without merit’”
may form the basis for a malicious prosecution
suit.’” (Plumley v. Mockett (2008)
164 Cal.App.4th 1031, 1047–1048, citations omitted; accord, Wilson v.
Parker, Covert & Chidester, supra,
28 Cal.4th at p. 822.) “name="SR;3352">Malicious prosecution . . .
includes continuing to prosecute a lawsuit discovered to lack probable
cause.” (Zamos v. Stroud (2004)
32 Cal.4th 958, 973.)

“‘Probable
cause may be present even where a suit lacks merit. Favorable termination of the suit often
establishes lack of merit, yet the plaintiff in a malicious
prosecution action must separately show lack of
probable cause. Reasonable lawyers can
differ, some seeing as meritless suits which others believe have merit, and
some seeing as totally and completely without merit suits which others see as
only marginally meritless. Suits which all
reasonable lawyers agree totally lack merit — that is, those
which lack probable cause — are the least meritorious
of all meritless suits. Only this
subgroup of meritless suits present[s] no probable cause.’” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at
p. 743, fn. 13.)

In
asserting they had probable cause to file the prior action against Zhang,
defendants point out they succeeded in establishing that her husband was an
alter ego of the corporation and therefore liable under the judgment. Defendants also rely on excerpts from the
statement of decision in the prior action, as follows: “Ms. Zhang testified she was one of the
managers of [the] Hong Yei [Restaurant], and received salary checks twice a
month. She stated she began work at the
restaurant on June 24, 2007[, the day it opened for business]. Her duties may be summarized as partially
waitress, partially cashier, partially bookkeeper, and partially on-site
manager. Ms. Zhang was responsible
for signing checks to pay for the routine bills, including checks for wages,
and she delivered those pay checks to the employees. Ms. Zhang testified [that her husband]
bought the food, which he paid for by credit card or checks she had
signed. . . . [¶] . . . [¶]

“With respect to the alter
ego issue, . . . [¶] . . . the evidence was not
sufficient to persuade the Court that Ms. Zhang was . . . the
alter ego of [the corporation]. While
she had significant responsibilities
for the operation of the restaurant, the evidence did not show that she had or
claimed an ownership interest, or that she had a position as an officer or
director of [the corporation].” (Italics
added.)

And defendants emphasize that, in
the prior action, when Judge Hess granted their motion to deny Zhang’s request
for attorney fees, he said their claims against her were “not frivolous” and
“not . . . completely without merit.”
As Judge Hess explained, directing his comments to Zhang: “You and your husband ran this restaurant. You got up and testified that it was really
your husband’s business. You were only
an employee. Although there was some
doubt about that, they did not persuade me that . . . you should be
held liable. That doesn’t make it
frivolous. They didn’t succeed, but it
did not make it completely without merit.”

Nevertheless,
as previously stated, under the anti-SLAPP statute, a malicious prosecution
claim, by definition, is based on protected activity. Defendants’ evidence on the issue of probable
cause is considered only if Zhang first satisfies her burden of demonstrating
she is likely to prevail on the claim.

In her
opening brief — and only brief — Zhang cites the
record with respect to only one factual assertion arguably regarding the merits
of her claims: “In the instant case, as
shown by [Zhang’s] Exhibits, [on] pages 351, 363, 364 thru 367, 369, 382
thru 399 [of the record], [defendants], and each of them, were engaged in
extortion. Thus, the trial court erred
in granting [defendants’] meritless and untimely motions to strike . . . .”

For three
reasons, we conclude Zhang did not “‘“make a prima facie showing of facts
which would, if proved at trial, support a judgment in [her] favor.”’” (Rezec v. Sony Pictures Entertainment,
Inc., supra, 116 Cal.App.4th
at p. 139.) First, we do not
consider factual assertions in Zhang’s appellate brief unless they were
supported by a citation to the record.
(See Cal. Rules of Court, rule 8.204(a)(1)(C); Grant–Burton v.
Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; Warren–Guthrie
v. Health Net (2000) 84 Cal.App.4th 804, 808, fn. 4, disapproved
on another point in Cronus Investments, Inc. v. Concierge Services
(2005) 35 Cal.4th 376, 393, fn. 8.)
Second, even if a factual assertion is supported by a citation to the
record, its relevance must be explained in an adequately developed argument. (See Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865;
Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700.) Here, Zhang flatly asserted, in a single
sentence, that her claims were supported by specified pages of the record. She did not provide an adequate argument as
to how the evidence on those pages
demonstrated she was likely to prevail on one or more of her claims, and our
independent examination of those pages sheds no light on the issue. Third, assuming Zhang had presented an
adequately developed argument that defendants engaged in “extortion,” such an
argument would have been irrelevant in determining whether defendants had
probable cause to bring the prior action, which alleged she had violated the
Unfair Competition Law and certain provisions of the Labor Code.

In sum,
Zhang failed to establish a reasonable likelihood she would prevail on her
malicious prosecution claim. We
therefore do not consider any evidence submitted by defendants on that point. The trial court properly granted the
anti-SLAPP motions as to the malicious prosecution claim.

2. Remaining
Claims

Although a
malicious prosecution claim is always based on activity protected by the
anti-SLAPP statute, defendants must make an affirmative showing that Zhang’s
other claims are based on statements or writings protected by the statute.

We conclude
defendants satisfied that requirement.
We have already described the allegations in Zhang’s complaint. (See pt. I.B., ante.) Her remaining claims
are based on statements or writings “made [by defendants] before a
. . . judicial proceeding . . . [or] in connection with an
issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(1), (2).) In short, Zhang’s claims are based on communications
made by defendants in the prior action or in connection with it. Consequently, the burden shifts to Zhang to
show she is likely to prevail on her remaining claims. She has failed in that respect because the
claims are barred by the litigation privilege.

“The usual
formulation is that the privilege applies to any communication (1) made in
judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical relation to the
action.” (Silberg v. Anderson
(1990) 50 Cal.3d 205, 212.)
“Because the privilege applies without regard to malice or evil motives,
it has been characterized as ‘absolute.’” . . .

“The
principal purpose of [the litigation privilege]
is to afford litigants and witnesses . . . the utmost freedom of
access to the courts without fear of being harassed subsequently by derivative
tort actions. . . . [¶] . . . [¶]

“[I]n
immunizing participants from liability for torts arising from communications
made during judicial proceedings, the law places upon litigants the burden of
exposing during trial the bias of witnesses and the falsity of evidence,
thereby enhancing the finality of judgments and avoiding an unending roundelay
of litigation, an evil far worse than an occasional unfair result.” (Silberg v. Anderson, supra, 50 Cal.3d at
pp. 213–214, citations omitted.)
“‘In other words, the litigation privilege
is intended to encourage parties to feel free to exercise their fundamental
right of resort to the courts for assistance in the resolution of their
disputes, without being chilled from exercising this right by the fear that
they may subsequently be sued in a derivative tort action arising out of
something said or done in the context of the litigation.’” (Aronson v. Kinsella (1997) 58 Cal.App.4th 254,
262.)

“In
furtherance of the public policy purposes it is designed to serve, the
privilege . . . has been given broad application. Although originally enacted with reference to
defamation . . . , the privilege is now held applicable to any
communication, whether or not it amounts to a publication
. . . , and all torts except malicious
prosecution. . . . Further, it applies to any publication
required or permitted by law in the course of a judicial proceeding to achieve
the objects of the litigation, even though the publication is made outside the
courtroom and no function of the court or its officers is
involved. . . .” (Silberg
v. Anderson, supra,
50 Cal.3d at pp. 211–212, citations omitted.)

We
acknowledge that in comparing the anti-SLAPP statute with the litigation
privilege, our Supreme Court has stated, “[T]he two
statutes are not substantively the same” and they do not “serve the same
purposes.” (Flatley
v. Mauro, supra,
39 Cal.4th at pp. 323–324.)
Yet, in many cases, a defendant’s communications will fall within the
scope of the anti-SLAPP statute and will also be protected by the litigation
privilege. (See, e.g., >Flatley, at p. 323 [“The litigation
privilege is also relevant to the second step in the anti-SLAPP analysis in
that it may present a substantive defense a plaintiff must overcome to
demonstrate a probability of prevailing.”]; JSJ
Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1520–1522;
Alpha & Omega Development, LP v.
Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 663–667; >Dove Audio, Inc. v. Rosenfeld,
Meyer & Susman (1996) 47 Cal.App.4th 777, 781–785; Rylaarsdam
et al., Cal. Practice Guide: Civil
Procedure Before Trial, supra, ¶¶ 7:630 to
7:631, 7:1015, pp. 7(II)‑13 to 7(II)‑14, 7(II)‑49 to
7(II)‑50.)

Zhang’s
remaining claims are based on communications made by defendants in a prior
judicial proceeding; defendants were participants in that proceeding; the
communications were made to establish Zhang’s liability; and the communications
had some connection or logical relation to the action. (See Silberg v. Anderson, supra, 50 Cal.3d at
p. 212.) The litigation privilege
therefore applies and precludes liability as to all of defendants’ alleged
communications. (See Rylaarsdam et al.,
Cal. Practice Guide: Civil Procedure
Before Trial, supra, ¶¶ 1:604 to
1:634, pp. 1‑134 to 1‑147.)
Zhang’s remaining claims are barred by the litigation privilege. And even if we assume otherwise, Zhang has
failed to demonstrate a likelihood of prevailing on her remaining claims for
the same reasons she failed in that respect on the malicious prosecution
claim: The one sentence reference in her
appellate brief to certain pages of the record for the proposition that
defendants committed “extortion” is insufficient to “‘“make a prima facie
showing of facts which would, if proved at trial, support a judgment in
[her] favor [on any of her claims].”’” (Rezec
v. Sony Pictures Entertainment, Inc.,
supra, 116 Cal.App.4th at p. 139; see pt. II.B.1, >ante.)

Accordingly,
the litigation privilege bars Zhang’s remaining claims, and the trial court
properly granted the anti-SLAPP motions as to those claims.

>III

>DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED.



MALLANO,
P. J.

We concur:



ROTHSCHILD, J.



CHANEY, J.