Zhang v. Cheng

 

 

 

 

 

 

 

 

Filed 7/25/13  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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

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

B241522         (Los Angeles County       Super. Ct. No. BC470179)

 

 

            APPEAL from
an order 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., for Plaintiff and Appellant.

            No
appearance for Defendants and Respondents.

 

__________________________________________
clear=all >

            In a prior
lawsuit, an employee represented by successive attorneys sued his corporate
employer and two managerial employees—a husband and wife—alleging
violations of wage and hour laws codified in the Labor Code and other
claims.  At trial, the employee prevailed
on his 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 the employee and all of his attorneys,
alleging claims for malicious prosecution,
abuse of process, and defamation, among others.  The attorneys and the employee responded with
a special motion 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 motion.  This appeal followed.

            We conclude
the trial court properly found that all of the wife’s causes of action fall
within the scope of the anti‑SLAPP statute and that she 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, the exhibits
submitted in connection with the anti-SLAPP motion, our prior opinion in this
case (B238290), and additional papers filed in the trial court regarding
various rulings.

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 wage and hour laws codified in 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 similar 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 two lawsuits were consolidated.

            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 lawsuit 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
was therefore 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. 
[¶] . . . [¶]

            “Ms. 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.

            “Ms. 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 Action

            On September 26, 2011, Zhang,
in propria persona, filed the present action against (1) Jia Nong
Guo, the employee who brought one of the prior wage and hour lawsuits
(No. BC415219) and (2) all of the attorneys who had represented him
at any point in the prior suit (Attorneys Cheng, Young, Wong, and Sugars), and
(3) 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
June 3, 2009 complaint Guo 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 Guo in the prior action 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 Guo, Sugars, and the Law Offices of
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 Guo. 
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, Guo did not sign the
verifications on his responses to Zhang’s discovery.  Sugars and his client, Guo, 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.

            1.  Consolidation of Malicious Prosecution
Actions

            The present case was not Zhang’s
first action for malicious prosecution. 
This action was filed on September 26, 2011.  Two months earlier, on July 25, 2011,
Zhang had filed a malicious prosecution action (No. BC466079) against the
same attorneys—Cheng, Young, Wong, and Sugars—based on their representation of
employee Han in his prior wage and hour lawsuit.  On October 19, 2011, the trial court,
Judge Malcolm H. Mackey presiding, ordered the two malicious prosecution
actions consolidated.

            2.  Attempts to Disqualify Trial Judge

            On October 31,
2011, Zhang filed a peremptory challenge to disqualify Judge Mackey.  (See § 170.6.)  On November 2, 2011, Judge Mackey denied
the challenge as untimely.

            On
November 7, 2011, Zhang filed a document entitled, “Objection to Judge
Malcolm H. Mackey Presiding In All Future Proceedings,” and also filed a
supporting declaration stating Judge Mackey had made several erroneous rulings
in the present case.  (See
§§ 170.1–170.2.)  On
November 29, 2011, Zhang filed another “objection” to Judge Mackey
supported by a declaration, again complaining about his rulings.  Both objections asserted that Judge Mackey
was “biased and prejudiced towards plaintiff.” 
On November 29, 2011, Judge Mackey ordered that the “Statement of
Disqualification” be stricken.

            3.  Anti-SLAPP Motion

            In response
to Zhang’s complaint, defendants filed an anti-SLAPP motion, 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 wage and hour lawsuit on Guo’s
behalf.  For that proposition, defendants
relied on excerpts from the statement of decision in the prior suit 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 anti-SLAPP motion should have been denied
because the hearing date was not within 30 days after the motion was served,
(2) defendants had filed the prior lawsuit without probable cause, and
(3) the litigation privilege did not apply to defendants’ communications.

            On
March 28, 2012, the trial court, Judge Mackey presiding, heard argument on
the anti-SLAPP motion and granted it by minute order of the same date.  On May 29, 2012, the court entered a
formal order to that effect.  Zhang
appealed.href="#_ftn1" name="_ftnref1" title="">[1]

>II

>DISCUSSION

            On appeal,
Zhang contends (1) the trial court should have denied the anti-SLAPP
motion because it was not set for hearing within 30 days after service,
(2) the trial court erred in consolidating this case with the other
malicious prosecution action that Zhang had brought against the same attorneys
(Zhang v. Young (Super. Ct. L.A.
County, 2011, No. BC466079), (3) Judge Mackey abused his discretion
in denying Zhang’s requests to disqualify himself, and (4) the trial court
erred in granting the anti-SLAPP motion because Zhang was likely to prevail on
her claims at trial.

            We conclude
that (1) the anti-SLAPP motion was timely set for hearing; (2) Zhang
cannot challenge, by way of appeal, the trial court’s rulings on
disqualification; (3) the trial court did not err in consolidating Zhang’s
two malicious prosecution actions; (4) all of Zhang’s claims fall within
the scope of the anti-SLAPP statute; and (5) Zhang is not likely to
prevail on any of her claims.

A.        Timeliness of Hearing Date on Anti-SLAPP Motion

            Zhang
contends the anti-SLAPP motion should have been denied because the hearing date
was not noticed within 30 days after the motion was served.  According to the docket entries on the “Case
Summary” for the present action, Cheng filed the anti-SLAPP motion on October 25,
2011, with a hearing date of March 28, 2012.href="#_ftn2" name="_ftnref2" title="">[2]  Thus, the hearing for the anti-SLAPP motion
was 155 days after the motion was served. 
Nevertheless, we reject Zhang’s contention that the motion had to be
noticed for hearing within 30 days of service.

            >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.        Attempts to Disqualify
Trial Judge

            Zhang
sought to disqualify Judge Mackey by filing a peremptory challenge (see
§ 170.6) and by filing two objections based on Judge Mackey’s alleged bias
and prejudice against her (see § 170.3). 
Judge Mackey denied the peremptory challenge and the objections.

            We cannot
review any of these rulings on appeal. 
The peremptory challenge can be reviewed only by a petition for writ of
mandate.  (County of San Diego v. State of California (1997) 15 Cal.4th
68, 110.)  “Writ review is the exclusive
avenue of appellate review for such rulings.” 
(Sears, Roebuck & Co. v.
National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th
1342, 1348.)  The same holds true for
Zhang’s objections to Judge Mackey.  (See
§ 170.3, subd. (d).)

C.        Consolidation of Zhang’s
Malicious Prosecution Actions

            The trial
court consolidated Zhang’s two malicious prosecution actions, both of which
were based on the prior wage and hour lawsuits against Hong Yei Group, Inc.,
Hong Yei Restaurant, Zhang, and her husband. 
More specifically, the trial court ordered that the present case
(No. BC470179), filed on September 26, 2011, be consolidated with >Zhang v. Sugars (Super. Ct. L.A. County,
2011, No. BC466079), filed on July 25, 2011.

            We have reviewed
Zhang’s complaints in both of her malicious prosecution actions, and conclude
the material allegations are identical. 
In the underlying suits—on which Zhang based her malicious prosecution
actions—two employees of the Hong Yei Restaurant filed separate lawsuits
against Hong Yei Group, Inc., the restaurant, Zhang, and her husband, alleging
violations of wage and hour laws codified in the Labor Code.  As noted, the employees’ suits were
consolidated in the trial court, and the employees prevailed against all
defendants with the exception of Zhang.

            In both
malicious prosecution actions, Zhang sued the same attorneys:  Cheng, Young, Wong, and Sugars.  Those attorneys had represented the employees
in the prior wage and hour lawsuits.  The
two malicious prosecution complaints differed only with respect to the
individuals sued.  In the present case,
Zhang sued Jia Nong Guo, one of the employees who brought a prior wage and hour
suit (No. BC415219).  In the other
case, Zhang did not sue Guo but instead named the other employee, Jian Hui Han,
who had filed the other wage and hour suit (No. BC417128); Zhang also
named Han’s wife, Jun Lian, as a defendant. 
Both malicious prosecution actions contained the same causes of action.

            “When
actions involving a common question of law or fact are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue
in the actions; it may order all the actions consolidated and it may make such
orders concerning proceedings therein as may tend to avoid unnecessary costs or
delay.”  (§ 1048,
subd. (a).)  The purpose of
consolidation is to promote trial convenience and economy.  (Mueller
v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 722.)  We review the trial court’s consolidation
order for an abuse of discretion.  (See >Estate of Baker (1982)
131 Cal.App.3d 471, 484–485.)

            Here, the
two malicious prosecution actions presented the same questions of fact and law,
and were brought against the same attorneys. 
Zhang argues that the trial court erred because it ordered the
consolidation after Sugars’s
anti-SLAPP motion in case No. BC466079 had been granted.  According to the record, the order of
consolidation was filed on October 19, 2011.  Although Judge Mackey had granted >Sugars’s anti-SLAPP motion at a hearing
on October 12, 2011, a signed appealable order was not filed until
November 4, 2011.  At the time of
consolidation, the trial court had not ruled on Cheng’s anti-SLAPP motion. 
As noted, the order granting his anti-SLAPP motion was not filed until
May 29, 2012.  By consolidating the
malicious prosecution actions, the trial court ensured that the rulings on the
two anti-SLAPP motions—by Sugars and Cheng, respectively—would be consistent.  And it is well established that one of the
purposes of consolidation is to avoid inconsistent or conflicting rulings.  (See Rylaarsdam et al., Cal. Practice Guide: name="SR;3633"> Civil Procedure Before Trial (The Rutter Group 2013)
¶ 12:340, p. 12(I)‑63.)

D.        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 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, supra, ¶ 7:601, p. 7(II)‑11.)

            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.)

E.        Protected Activity and
Likelihood of Prevailing

            For
purposes of determining whether Zhang’s claims are based on activity protected
by the anti-SLAPP statute and whether she is likely to prevail at trial, 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
wage and hour lawsuits.  Her malicious
prosecution claim, by its very nature, falls within the scope of the anti-name="SR;2905">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 name="SR;3324">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.)  “Malicious name="SR;3353">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 â€” that is, those
which lack probable cause â€” 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 relied on the statement of
decision in the prior wage and hour lawsuits. 
As Judge Hess found: 
“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 wage and hour suits, 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
appellate brief, Zhang cites the record with respect to only two assertions
regarding the merits of her claims. 
First, she says, “[i]n the instant case, as the facts and evidence
show[ ] (p. 4/10-26; >p. 5/1-9), the trial court erred
in granting [defendants’] special motion[ ] to strike the complaint when
[they] failed to present facts and evidence supporting their allegations
(Exhibits 14, 15, 16).”  (Boldface added.)  Second, she asserts that, “as shown by
Exhibits 14, 15, and 16[,
defendants], and each of them, were engaged in extortion.  Thus, the trial court erred in granting
[defendants’] meritless and untimely motion[ ] to strike because the
statutes did not apply to [defendants’] evil motive.”  (Boldface added.)href="#_ftn3" name="_ftnref3" title="">[3]

            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.)  Although Zhang provided
citations to the record—either by page or exhibit number—she did not explain
the relevance of the evidence 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.)  “We will not develop
the appellant[’s] arguments for [her].”  (Schoendorf
v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 237–238.)  Further, Zhang’s assertions are nothing more
than legal conclusions.  But to defeat
defendants’ anti-SLAPP motion, Zhang had to make a “showing of >facts . . . that would be
. . . sufficient to support a judgment in the plaintiff’s favor as a
matter of law.”  (Hall v. Time Warner,
Inc., supra,
153 Cal.App.4th at p. 1346, italics added.)

            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 motion as to the malicious prosecution claim.

            2.  Remaining
Claims

            Although a
malicious prosecution claim is, by definition, based on activity protected by
the anti-SLAPP statute, defendants must make an affirmative showing that
Zhang’s other claims—abuse of process, conspiracy, defamation, intentional
infliction of emotional distress, negligent infliction of emotional distress,
“intentional tort,” and violation of the Unfair Competition Law—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 wage and hour lawsuits or in connection with
them.

            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 href="http://www.mcmillanlaw.com/">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)‑15
to 7(II)‑16, 7(II)‑54.)

            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 1‑149.) 
Zhang’s remaining claims are therefore barred by the litigation
privilege.

            Finally,
even if the litigation privilege does not bar the remaining claims, Zhang has
failed to demonstrate a likelihood of prevailing on any of them for the same
reason she failed in that respect on the malicious prosecution claim:  In her appellate brief, Zhang merely asserted
two legal conclusions:  (1) â€œthe
facts and evidence show[ ] (p. 4/10-26; p. 5/1-9), the trial
court erred in granting [defendants’] special motion[ ] to strike the
complaint”; and (2) â€œas shown by Exhibits 14, 15, and 16[,
defendants], and each of them, were engaged in extortion.”  (See pt. II.E.1, ante.)  These conclusory
statements are 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, italics added in >Rezec.)

            Accordingly,
the remaining claims are without merit because the litigation privilege bars
liability based on defendants’ communications, and Zhang failed to cite and
analyze evidence that established a reasonable likelihood she would prevail at
trial.  It follows that the trial court
properly granted the anti-SLAPP motion as to Zhang’s remaining claims as well
as the malicious prosecution claim.

>III

>DISPOSITION

            The order is affirmed.

            NOT TO BE PUBLISHED.

 

                                                                                    MALLANO,
P. J.

We concur:

 

            ROTHSCHILD, J.

 

            CHANEY, J.