Glavinovich v. >Davis>



















Filed 3/4/13 Glavinovich v. Davis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

JOHN L. GLAVINOVICH, Plaintiff and Appellant, v. VINCENT W. DAVIS et al., Defendants and Respondents.

G046730 (Super. Ct. No. 30-2011-00516101) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Steven L. Perk, Judge.
Affirmed.

Voss, Silverman &
Braybrooke, David C. Voss, Jr., and Andrew T. Schoppe for Plaintiff and
Appellant.

Law Offices of Vincent
W. Davis & Associates, Artin DerOhanian and Vincent W. Davis for Defendants
and Respondents Vincent W. Davis and Vincent W. Davis & Associates.

Fleming & Fell,
George E. Fleming, Bibianne U. Fell and Tracy L. Angelopous for Defendants and
Respondents Ajay Meka, Yong Chun, Jaime Ludmir, Ashok Amin, Bharat Chauhan,
Surinder Dang, Joginder Jodhka, Sangamitra Kothapa, Anthony Lee, Robert
Melikian, Ahmed Salem, Praful Sarode, Grace Sein, Patrick Walsh and Jacob
Sweidan.

* * *



This
is one of a number of appeals from judgments after orders granting defense
motions pursuant to Code of Civil Procedure section 425.16,href="#_ftn1" name="_ftnref1" title="">[1] the anti-SLAPP statute,href="#_ftn2" name="_ftnref2" title="">[2] in a malicious prosecution action by
plaintiff John L. Glavinovich. All of the
anti-SLAPP motions relate to the same underlying case, Sweidan v. Orange> >County>
Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-00122142).

In this case, Glavinovich appeals the trial court’s decision to grant
three anti-SLAPP motions filed by 1) Vincent W. Davis and the Law Offices of
Vincent W. Davis & Associates (collectively Davis); 2) Jacob
Sweidan, and 3) Ajay Meka, Yong Chun, Jamie Ludmit, Ashok Amin, Bharat Chauhan,
Suringder Dang, Joginder Jodhka, Sandamitra Kothapa, Anthony Lee, Robert
Melikian, Ahmed Salem, Praful Sarode, Grace Sein, and Patrick Walsh
(collectively, with Sweidan, the OCPIN plaintiffs). Based on the minimal and nonspecific evidence
produced by Glavinovich in the trial court, he has not demonstrated that he can
establish a lack of probable cause or malice, two of the three requirements to
maintain a cause of action for malicious prosecution. We therefore affirm the trial court’s
decision to grant the anti-SLAPP motion.

I

FACTS

A. The Underlying Case

Orange
County Physicians Investment Network (OCPIN) was a Nevada
limited liability company formed by Glavinovich and approximately 19
others. Its primary purpose was as a
holding company for its members’ funds to be used for the acquisition of stock
in a company called Integrated Healthcare Holdings, Inc. (Integrated). This company, an investment entity, purchased
four hospitals in the Orange County
area from Tenet Healthcare Corporation.

In
April 2008, Glavinovich was elected as a manager of OCPIN, along with Anil V.
Shah, who had held that position since 2005.
According to Glavinovich’s complaint, acquiring Integrated stock was a
“complicated and difficult affair,” resulting in separate litigation that is
apparently still arguing.

In
early 2009, certain members of OCPIN began an effort to remove Shah and
Glavinovich as managers. Glavinovich
later alleged such actions were illegitimate and interrupted OCPIN’s business
operations. The dissident members then
instituted the underlying case (the OCPIN litigation). Six consecutive complaints then followed,
filed by three different law firms. The
initial complaint was a derivative action.
The first amended complaint alleged causes of action against Glavinovich
for breach of fiduciary
duty, constructive fraud, injunction, professional negligence, accounting, and
several declaratory relief claims.
Similar allegations followed in the second amended and third amended
complaints and he again demurred. In
each instance the demurrers were sustained with leave to amend.

Davis
entered the case and eventually filed the fourth amended complaint. According to the declaration Davis
later filed in support of the anti-SLAPP motion, his review of the case showed
that in the fall of 2008, Shah and Glavinovich twice made “cash calls” to the
OCPIN plaintiffs in order to raise capital to indemnify Shah in litigation
initiated by Integrated. Davis
believed that Shah and Glavinovich diluted the ownership interest of the
members that failed to contribute in their own favor. The OCPIN operating agreement contained an
explicit prohibition against such cash calls.
Further, it was apparent to Davis
that the OCPIN plaintiffs were unaware of the dilution of their interests until
2009, and became aware only after they signed the settlement agreements that
ended the litigation against Shah.

Davis substituted out of the case prior to a
hearing on the fourth amended complaint, which was eventually sustained with
leave to amend. A fifth amended
complaint, alleging essentially the same causes of action against Glavinovich,
was filed thereafter. A demurrer was
filed, but the court, on its own motion, struck the entire complaint for
amending beyond the scope of the court’s prior order. A sixth amended complaint followed, alleging
similar claims. Glavinovich’s demurrer,
which primarily argued the OCPIN plaintiffs had failed to allege facts
sufficient to overcome Nevada’s business judgment rule, was sustained without further leave to
amend. The court noted that the OCPIN
plaintiffs had not “com[e] even close” to stating a cause of action against
him.



B. The Malicious Prosecution
Case

After
he was dismissed from the OCPIN litigation, Glavinovich filed the instant
action for malicious prosecution against the OCPIN plaintiffs and their
attorneys in the underlying case. The
first amended complaint, filed in December 2011, alleged malicious prosecution
and intentional infliction of emotional distress.

In
response, the defendants filed a number of separate motions to strike, three of
which are relevant to this appeal. All
three argued that Glavinovich could not establish the probability of success on
the merits, because he could not demonstrate either a lack of probable cause or
malice sufficient to sustain a cause of action for malicious prosecution. In opposition, Glavinovich relied on the
complaints and demurrers in the underlying case, and excerpts from the
depositions of Meka and Sweidan, taken in February 2010, to argue that none of
the OCPIN plaintiffs had probable cause to sustain the litigation. With respect to malice, Glavinovich argued
that “all of the inferences support Glavinovich’s contention that the ‘improper
motive’ and ‘ulterior purpose’. . . was to enable the OCPIN
[plaintiffs] . . . to take control of the OCPIN entity from Glavinovich and
Shah . . . .”

The court
heard the anti-SLAPP motions on March 23, 2012. The court granted the motions, concluding
the lawsuit was indeed a SLAPP, and that Glavinovich had not established
a prima facie case of either malicious prosecution or intentional infliction of
emotional distress.href="#_ftn3" name="_ftnref3"
title="">[3] The court also granted Glavinovich’s requests
for judicial notice, but not the truth of the matter included in the
documents. Glavinovich now appeals.

II

DISCUSSION

>A. Statutory Framework

The
anti-SLAPP statute states: “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).) The purpose of the anti-SLAPP statute
is to dismiss meritless lawsuits designed to chill the defendant’s free speech
rights at the earliest stage of the case.
(See Wilcox v. Superior Court (1994)
27 Cal.App.4th 809, 815, fn. 2.) The statute is to be “construed
broadly.” (§ 425.16, subd. (a).)

Section
425.16, subdivision (e), specifies the type of acts included within the
statute’s ambit. An “‘act in furtherance of a person’s right of petition or
free speech . . . 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.” (§ 425.16, subd. (e).)

Courts engage in a
two-step process to resolve anti-SLAPP motions.
“‘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).)’” (Jarrow Formulas, Inc. v.
LaMarche, supra, 31 Cal.4th at p.
733.)

“‘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.]”
(Jarrow Formulas,> Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.)
To establish the requisite probability of prevailing, the plaintiff must
state and substantiate a legally sufficient claim (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1122-1123), thereby demonstrating his case has at least minimal merit. (Cole v. Patricia A. Meyer & Associates,
APC (2012)
206 Cal.App.4th 1095, 1105 (Cole).) “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.’ [Citations.]”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821.) Glavinovich “must produce evidence that would be admissible at
trial. [Citation.]” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,
212.)

On
appeal, we “review an order granting an anti-SLAPP motion de novo,
applying the same two-step procedure as the trial court. [Citation.]”
(Cole, supra, 206 Cal.App.4th
at p. 1105.) In conducting our review, “[w]e consider ‘the
pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.’ [Citation.] However, we neither ‘weigh credibility [nor]
compare the weight of the evidence.
Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.’ [Citation.]”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3 (Soukup).)

The
first step of the anti-SLAPP analysis is readily satisfied here, as it is in
nearly all claims for malicious prosecution.
(See Jarrow Formulas,> Inc. v. LaMarche, supra, 31 Cal.4th at pp. 734-735.)
“It is well established that filing a lawsuit is an
exercise of a party’s constitutional right of petition. [Citations.]
‘“‘[T]he constitutional right to petition . . . includes the basic act
of filing litigation or otherwise seeking administrative action.’”’ [Citations.]”
(Chavez v. Mendoza
(2001) 94 Cal.App.4th 1083, 1087.) “Under
these accepted principles, a cause of action arising from a defendant’s alleged
improper filing of a lawsuit may appropriately be the subject of a section
425.16 motion to strike.
[Citation.] The essence of the
[plaintiffs’] malicious prosecution claim is that the plaintiff in the
underlying action . . . filed litigation that was improper because it was
allegedly filed with a malicious motive and without probable cause. This claim ‘aris[es] from’ the defendant’s
constitutionally protected petitioning activity, and therefore is subject to
the anti-SLAPP statute.
[Citation.]” (>Id. at p. 1087-1088; >see also Cole, supra, 206 Cal.App.4th at
p. 1105.) We therefore turn to
the question of whether Glavinovich has established the requisite probability
of prevailing on his claim.



B. Malicious Prosecution

“To
prevail on a malicious prosecution claim, the plaintiff must show that the
prior action (1) was commenced by or at the direction of the defendant and was
pursued to a legal termination favorable to the plaintiff; (2) was brought
without probable cause; and (3) was initiated with malice. [Citation.]”
(Soukup, supra, 39 Cal.4th at
p. 292.) Continuing an already filed
lawsuit without probable cause may also be the basis for a malicious
prosecution claim. (Zamos v. Stroud (2004) 32
Cal.4th 958, 969 (Zamos); see also >Daniels v. Robbins (2010) 182
Cal.App.4th 204, 226.)

We
examine the evidence produced in the trial court to determine if Glavinovich’s
claim passes muster under the anti-SLAPP statute. With the exception of prior pleadings and
court rulings, the only evidence Glavinovich submitted were deposition excerpts
from two of the OCPIN plaintiffs. In
Meka’s deposition,href="#_ftn4" name="_ftnref4"
title="">[4]
he was asked questions such as “what fiduciary duties did those two doctors
[Shah and Glavinovich] have?” The
question was objected to on the grounds of attorney-client privilege, and Meka
answered that he did not have information other than what his attorney had told
him. When asked for facts underlying the
fiduciary duty claims, he repeatedly answered that he only knew what his
counsel at the time, Kenneth Catanzarite, had told him. Questions regarding other claims were
answered similarly, and Sweidan answered in a consistent manner.

In
support of their motions, Davis and the OCPIN plaintiffs submitted a number of
documents, including the OCPIN operating agreement and various rulings. Additionally, Davis submitted a declaration
including a recounting of the facts he had learned from his investigation of
the case.



>1.
Probable Cause

“Probable
cause exists when a lawsuit is based on facts reasonably believed to be true,
and all asserted theories are legally tenable under the known facts.” (Cole,
supra, 206 Cal.App.4th at p. 1106.) Whether the facts known to an attorney
constituted probable cause to prosecute an action is a question of law. (Zamos,
supra, 32 Cal.4th at p. 971.) More
specifically, “‘[t]he presence or absence of probable cause is viewed under an
objective standard applied to the facts upon which the defendant acted in
prosecuting the prior case. [Citation.] The test of determining probable cause is
whether any reasonable attorney would have thought the claim to be tenable.
[Citation.] . . . [¶] Hence, “probable
cause to bring an action does not depend on it being meritorious, as such, but
upon it being arguably tenable, i.e., not so completely lacking in merit
that no reasonable attorney would have thought the claim tenable. [Citation.]”’
[Citation.] Probable cause exists if the claim is legally sufficient and can be
substantiated by competent evidence. [Citation.]” (Antounian v. Louis
Vuitton Malletier (2010) 189 Cal.App.4th 438, 448-449.)

Glavinovich
bears the burden of establishing a prima facie case. (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821.) His
argument on this point in his opening brief is sparse. It primarily consists of the following. “As
illustrated in the above-cited excerpts from the depositions of lead OCPIN
Defendant Meka, neither Meka, Sweiden nor any other OCPIN Defendant had
probable cause to bring any of their claims against Glavinovich. This includes
the ‘cash call’-related claims cited by the Court in its earlier order granting
the motions to strike filed by Hewitt & Wolensky and Syed Naqvi, and
extends to the other claims—for breach of fiduciary duty, fraud,
misrepresentation, constructive fraud, professional negligence, etc. — which
were alleged in the OCPIN Defendants’ Second through Sixth Amended
Complaints. [¶] In view of the fact that the OCPIN Defendants
and the Attorney Defendants had merely to reveal some portion of the facts
which were allegedly known only to Catanzarite in order to survive the
demurrers which eventually extinguished their claims against Glavinovich, it is
even more reasonable to infer that those facts never existed in the first
instance, and that the claims alleged against Glavinovich were assuredly ‘based
upon suspicion, imagination, speculation, surmise, conjecture or
guesswork.’”

We
address the defendants separately as three different groups: Meka and Sweiden,
the other OCPIN plaintiffs, and Davis.
With regard to Meka and Sweidan, Glavinovich’s reliance on their
deposition testimony as the key evidence of lack of probable cause is
misplaced. They did not, as Glavinovich
claimed below, acknowledge that all of their claims were baseless. The sum of their testimony is merely that
they did not know certain facts, or were only aware of what their attorney had
told them. Given the complexity of the
allegations here, that is not at all unreasonable, nor can we draw
Glavinovich’s desired inferences from their testimony. Glavinovich’s sparse evidence does not
support a prima facie case of a lack of probable cause.

The
case is even thinner with respect to the remaining OCPIN plaintiffs, and again,
Glavinovich has not met his burden. He
cites no evidence (or authority) that would support attributing Meka and
Sweidan’s knowledge, or lack thereof, to all other OCPIN plaintiffs. Simply put, he produced no evidence against
the remaining plaintiffs.

With
respect to Davis, Glavinovich’s
reliance on the deposition testimony of two plaintiffs
does not speak to the relevant standard applied to attorneys in malicious prosecution actions, specifically, “‘whether
any reasonable attorney would have thought the claim to be tenable.’” (Antounian v. Louis Vuitton Malletier,
supra, 189 Cal.App.4th at pp. 448-449.)
Indeed, Glavinovich submitted no evidence on this point. As a matter of law, Glavinovich has not
established a lack of probable cause.



>2. Malice

Even if we
had found that Glavinovich established probable cause, he must also demonstrate
a prima facie case supporting the last element of a malicious prosecution
action, malice. “The ‘malice’
element . . . relates to the subjective intent or purpose with
which the defendant acted in initiating the prior action. [Citation.] The motive
of the defendant must have been something other than that of bringing a
perceived guilty person to justice or the satisfaction in a civil action of
some personal or financial purpose. [Citation.]
The plaintiff must plead and prove actual ill will or some improper ulterior
motive.” (Downey Venture v. LMI Ins.
Co. (1998) 66 Cal.App.4th 478, 494 (Downey
Venture).)

Glavinovich
argues that malice can be inferred from nothing more than the lack of probable
cause, but the lack of probable cause
alone is insufficient. (Drummond v.
Desmarais (2009) 176 Cal.App.4th 439, 452.) Were it otherwise, the
malice requirement would simply disappear.
“A lack of probable cause is a factor that may be considered in
determining if the claim was prosecuted with malice [citation], but the lack of
probable cause must be supplemented by other, additional evidence.” (HMS Capital, Inc. v. Lawyers Title Co.>, supra, 118 Cal.App.4th at p.
218.) “Merely because the prior action
lacked legal tenability, as measured objectively (i.e., by the standard of
whether any reasonable attorney would have thought the claim tenable
[citation]), without more, would not logically or reasonably permit the
inference that such lack of probable cause was accompanied by the actor’s
subjective malicious state of mind. In other words, the presence of malice must
be established by other, additional evidence.”
(Downey Venture, supra, 66 Cal.App.4th at p. 498, fn.
omitted.)

“[T]hat
evidence must include proof of either actual hostility or ill will on the part
of the defendant or a subjective intent to deliberately misuse the legal system
for personal gain or satisfaction at the expense of the wrongfully sued
defendant. [Citation.]” (>Downey Venture, supra, at
pp. 498-499; see also Daniels v.
Robbins, supra, 182 Cal.App.4th
at p. 225.) While malice may be inferred
from circumstantial evidence such as the lack of probable cause, such evidence
must be “supplemented with proof that the prior case was instituted largely for
an improper purpose.” (>Cole, supra, 206 Cal.App.4th at p. 1114.)

Moreover,
we keep in mind that malicious prosecution is a “disfavored action.” (Leonardini v. Shell Oil Co. (1989)
216 Cal.App.3d 547, 566.) “[T]he elements of [malicious prosecution] have
historically been carefully circumscribed so that litigants with potentially
valid claims will not be deterred from bringing their claims to court by the
prospect of a subsequent malicious prosecution claim.” (Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 872.) We are therefore
entirely disinclined to read out the malice requirement from a malicious
prosecution cause of action, as Glavinovich would have us do.

The
evidence is completely insufficient to establish a prima facie case of malice
against any of the defendants.href="#_ftn5" name="_ftnref5" title="">[5] He
had the burden of establishing that defendants sued him not to vindicate any
legal right, but with the intent to injure him.
Neither the pleadings nor rulings in the underlying case nor the
deposition excerpts of Meka and Sweiden meet this threshold. Indeed, the excerpts speak almost entirely to
the issue of probable cause, but unlike the cases he cites (see, e.g., >Zamos, supra, 32 Cal.4th 958), the facts here do not demonstrate that
defendants actually knew the case lacked probable cause. Glavinovich has simply not met
his burden here. Thus, defendants
anti-SLAPP motions were properly granted by the trial court.



C. Judicial Notice

Glavinovich
also argues, briefly, that the trial court “should have taken judicial notice
of the fact that [the judge in the underlying case] made the asserted findings
of fact even where judicial notice of the truth of said findings of fact may
not have been proper.” Specifically, he
refers to the finding of fact that the OCPIN litigants were “not even close” to
pleading facts sufficient to sustain their claims against Glavinovich. Confusingly, he then suggests those findings
“should have been received and credited” to him as “their existence tends to
reinforce the inference that the OCPIN [litigants] and their attorneys lacked
probable cause for the OCPIN litigation.”

It appears
to us that the court did exactly as Glavinovich initially suggests, taking
judicial notice of the existence of the findings, but not their truth. Giving any additional credence to the truth
of a judge’s factual finding, as Glavinovich then argues, would have been
improper. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568.)

III

DISPOSITION

The
judgment is affirmed. Pursuant to
section 425.16, subdivision (c)(1), defendants may file the appropriate motion
for attorney fees with the trial court.
They are also entitled to their costs
on appeal.







MOORE,
J.



WE CONCUR:







BEDSWORTH, ACTING P. J.







IKOLA, J.