Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 465253
Sepulveda, J.
Appellant Demas Yan appeals an order granting the special motion to strike of respondents Marc Coopersmith and Sierra Point Lumber and Plywood Co., Inc. (Sierra) pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). He argues that his causes of action for libel, slander, and abuse of process did not arise from protected activity, and that he demonstrated a probability that he would prevail on his claims. We disagree and affirm.
All statutory references are to the Code of Civil Procedure unless otherwise specified. SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 & fn. 1.)
I. Factual and Procedural Background
According to the pleadings and declarations submitted to the trial court in connection with respondents’ anti-SLAPP motion, appellant and Dong Xing Fu (who is not a party to this action) were the sole shareholders in San Francisco Building Professionals, Inc. (SFBP). Respondent Sierra sued Fu and SFBP in connection with a dispute over money that Fu owed Sierra (Sierra Point Lumber and Plywood Company, Inc. v. Fu et al. (Super. Ct. S.F. City and County, 2004, No. 428983)). Sierra was represented by respondent Coopersmith. During trial in that matter, Fu testified that appellant used SFBP for his own personal benefit at Fu’s expense. Fu also testified that proceeds from a sale of real property that SFBP had performed work on were “locked in a bankruptcy account because Demas Yan filed Chapter 11.” On April 28, 2006, the trial court entered judgment for respondent Sierra against Fu and SFBP in the amount of $98,257.35. Appellant was not a party to the action and was not mentioned in the judgment.
In response to the trial court’s question about the focus on appellant (a nonparty to the lawsuit against Fu), respondent Coopersmith responded, “Your Honor, assuming after a closing argument and the Court’s had an opportunity to hear all the evidence, California Code of Civil Procedure Section 187 would allow this Court to find Mr. Demas Yan or someone else potentially as the alterego of the corporate defendant, in this case the defendant San Francisco Building Professional, Inc. [¶] We filed suit against that defendant. They—we got a default. We didn’t do a prove-up hearing. Instead we are doing this trial against that defendant and Mr. Dong Xing Fu personally. ¶ . . . ¶ [W]e believe we can get a judgment against Mr. Demas Yan, the alterego of that defendant [SFBP].”
According to appellant’s complaint, Sierra contacted appellant in August 2006 and demanded that appellant pay the judgment against Fu and SFBP. Respondent Coopersmith sent appellant letters demanding that he pay the judgment, according to appellant’s declaration submitted in opposition to respondents’ anti-SLAPP motion. Coopersmith also threatened appellant that he would “ ‘go after’ ” him unless he paid respondent Sierra money, and he told appellant that respondents would make it “costly and burdensome” to defend such an action.
On September 22, 2006, respondent Sierra filed a proof of claim in the then-ongoing bankruptcy proceedings involving Yan’s estate (In re Demas Wai Yan (Bankr. N.D.Cal., No. 04-33526 TEC 11 (appellant’s bankruptcy action)). Sierra sought to collect the judgment entered in its action against Fu and SFBP based on an alter ego theory. The trustee objected to the claim.
Fu executed a declaration dated September 25, 2006 (Fu declaration), stating that appellant took the assets of SFBP for his own personal benefit, that the company was at that time no longer a functioning business, that the company did not set aside assets to satisfy any of its liabilities, that it never held meetings of shareholders, and that it never elected or had a board of directors. Only one page of what appears to have been a two-page declaration by Fu is included in the record on appeal. The declaration was submitted to the trial court in this action in connection with respondents’ anti-SLAPP motion as an attachment to a declaration by respondent Coopersmith; Coopersmith simply stated that a “declaration executed by Dong Xing Fu” was attached. The case number for appellant’s bankruptcy action appears in the footer of the Fu declaration, but it is unclear in what context the declaration was prepared. There is nothing in the Fu declaration itself indicating that it was prepared by anyone affiliated with respondents.
In October 2006, respondents “published a letter or series of letters, which stated that [appellant] improperly, dishonestly, and illegally withdrew money from SFBP’s corporate checking account, and that [appellant] caused said corporation to become insolvent,” according to appellant’s complaint. The letters were “sent by Sierra to persons who had or has business relations with [appellant] apparently in an effort by Sierra to coerce [appellant] into paying off Sierra.” The only such person alleged to have read any letters or heard any false statements by respondents was Fu. According to appellant, the statements about his handling of SFBP were false.
Appellant claimed that Coopersmith admitted to him in January 2007 that respondents did not have sufficient evidence against him; Coopersmith nonetheless threatened appellant that unless he paid money to Sierra, he would make it expensive for the bankruptcy trustee to defend Sierra’s claim. Following a trial in appellant’s bankruptcy action, respondent Sierra’s claim was denied in its entirety on June 20, 2007. The trustee spent $70,000 to defend the claim.
Appellant filed the instant action on July 18, 2007. He alleged causes of action against respondents for slander and defamation in connection with respondents’ alleged false statements that appellant had mishandled SFBP’s assets. Appellant also alleged a cause of action for abuse of process, alleging that respondents “misused the bankruptcy claim process as an extortion tool,” and that the true reason for pursuing a claim against him in bankruptcy was to “harass and extort money” from him.
Respondents filed a special motion to strike the complaint pursuant to the anti-SLAPP statute. In support of his opposition to the motion, appellant submitted a declaration stating that he held meetings with Fu between August and October 2006, and that Fu told him that respondents “had asked him [Fu] to provide assistance and that in return for signing a declaration that was prepared by [respondents], they w[ould] drop their effort to collect their judgment from Fu.” Appellant also stated that “Fu republished the false and defamatory statements by [respondents] to [appellant’s] business associates and friends.” Respondents objected on hearsay grounds to the above-quoted statements, and the trial court sustained the objection.
On the day of the hearing on respondents’ special motion to strike, appellant filed a declaration executed by Min Jian Guan, who stated that around October 2006, he heard Fu “say that [appellant] owe[d] money to Sierra Point Lumbers [sic] (Sierra). Fu showed me a letter that Fu said was written by Sierra. Fu told me that the letter says that [appellant] mismanaged and misappropriated funds and stole money from a company. Fu told me that he is assisting Sierra in getting [appellant] to pay the money.” The trial court permitted appellant to file the declaration, and accepted it “as an offer of proof” to determine whether it established any evidence that appellant had a likelihood of succeeding on his claims. Respondents’ counsel objected to the filing of the declaration, and stated that even if it was considered, it did not support appellant’s arguments. There was no further discussion of Guan’s declaration at the hearing.
Respondents incorrectly assert on appeal that the trial court excluded Guan’s declaration as untimely.
At one point during the hearing, respondents’ counsel asked, “I’m curious to know did the Court sustain all objections to the declaration?” (Italics added.) The trial court responded, “All hearsay objections to the declaration were sustained.” (Italics added.) Although they did not specify to which declaration they were referring, we presume it was appellant’s declaration, because it was clear from other comments at the hearing that the trial court sustained respondents’ hearsay objections to it. Moreover, respondents did not object on hearsay grounds to Guan’s declaration. Having failed to secure a ruling on objections to Guan’s declaration, they are deemed forfeited. (Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 4.)
The trial court thereafter granted respondents’ anti-SLAPP motion, concluding that all of the activity alleged by appellant was protected conduct, and that appellant had not demonstrated any probability of prevailing. Appellant timely appealed.
Appellant had requested in his opposition to the anti-SLAPP motion that he be permitted to conduct discovery. The trial court denied the request, a ruling that appellant does not challenge on appeal.
Appellant separately appealed from an order granting respondents their attorney fees and costs. (Yan v. Coopersmith et al., A121166.) This court dismissed the appeal on April 30, 2008, after appellant failed to submit the filing fee or an application for a waiver of the fee. (Cal. Rules of Court, rule 8.100(c).) Appellant does not challenge in this appeal the trial court’s granting of attorney fees and costs.
II. Discussion
A. The Anti-SLAPP Statute and Standard of Review.
“The anti-SLAPP statute, section 425.16, allows a court to strike any cause of action that arises from the defendant’s exercise of his or her constitutionally protected rights of free speech or petition for redress of grievances.” (Flatley v. Mauro, supra, 39 Cal.4th at pp. 311-312; § 425.16, subd. (b)(1).) “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 . . . shall be subject to a special motion to strike . . . .” (§ 425.16, subd. (b)(1).)
“In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see also Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) “ ‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ [Citations.] ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation.” (Rusheen at p. 1056.) Statements made in anticipation of litigation are “ ‘equally entitled to the benefits of section 425.16.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
“If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) “[T]he 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., supra, 29 Cal.4th at p. 67, quoting § 425.16, subd. (b).) “The filing of a notice of motion under the anti-SLAPP statute generally will stay all discovery in the action. (§ 425.16, subd. (g).) Nonetheless, a plaintiff opposing an anti-SLAPP motion cannot rely on allegations in the complaint, but must set forth evidence that would be admissible at trial. [Citation.] Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff’s burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. [Citation.] Only a cause of action that lacks ‘even minimal merit’ constitutes a SLAPP.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.) We independently review the trial court’s order granting a special motion to strike under section 425.16. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)
B. Slander and Libel Causes of Action.
Defamation is effected by either libel or slander, each of which is defined as a false and unprivileged communication. (Civ. Code, §§ 44, 45 [libel is false and unprivileged publication by writing], 46 [slander is false and unprivileged oral publication].) Appellant alleged that respondents defamed him by telling Fu (and other unspecified business associates) that he “improperly, dishonestly, and illegally withdrew money from SFBP’s corporate checking account, and that [appellant] caused said corporation to become insolvent.” The parties here dispute whether this conduct met the following definitions of protected activity set forth in the anti-SLAPP statute: “(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.” (§ 425.16, subd. (e).)
Respondents argue in passing that section 425.16, subdivision (e), which protects “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,” also is applicable. (Italics added.) Subdivision (e), by its terms, applies only to conduct relating to “an issue of public interest.” (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th 1106 at p. 1117.) Respondents did not rely on this subdivision in the trial court, so there was never a determination of whether respondents’ conduct related to “an issue of public interest.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 321, fn. 10 [party may not change theory of anti-SLAPP protection on appeal].)
We first note that it is somewhat unclear from the record in what context the defamatory statements at issue were made, and whether respondents or Fu first made them. Respondents submitted evidence that Fu testified on April 17, 2006 (during the court trial in respondent Sierra’s action against him and SFBP) that appellant used SFBP for his own personal benefit at Fu’s expense and that SFBP never had any minutes. They also submitted a declaration signed by Fu (for some unspecified purpose) on September 25, 2006; the declaration was consistent with Fu’s trial testimony and contained additional information about SFBP’s failure to follow corporate formalities. Respondents pursued a claim in appellant’s bankruptcy action for the judgment against Fu based on an alter ego theory. Although it is not clear whether respondents specifically relied on the Fu declaration in the bankruptcy action, they did rely on an expert report that claimed that SFBP violated state and federal tax laws over a period of six years.
Rather than refer to this specific evidence, the parties often generalize (without citation to the record) about statements made about appellant. Respondents claim, without evidentiary support, that respondent Coopersmith “consulted with Fu in preparing a declaration,” and that the Fu declaration “was a proposed statement of facts which Fu could either affirm or disaffirm.” They also claim, again without citation to the record, that their “conduct in obtaining the declaration was directly related to two different legal proceedings”—their trial against Fu and SFBP and appellant’s bankruptcy action. However, they direct us to nothing in the record to indicate in what context (if any) the Fu declaration was actually used, or whether it was actually prepared by respondents. The expert report prepared in the bankruptcy action does not refer to the Fu declaration or any other statements by him. Although respondents repeatedly refer to contact they had with Fu, they direct us to no evidence in the record that such contact actually took place, let alone evidence of what they discussed with Fu.
Respondents state on appeal: “The only person with whom the draft declaration was shared was Fu, and even then it was presented for his affirmation or denial. The statements therein were never represented as facts to any third party, and indeed were never even shown to anyone other than the potential declarant by respondents. Fu did eventually sign the declaration, adopting and affirming the statements therein as his own.”
For his part, appellant repeatedly refers to evidence that was in fact excluded by the trial court. Appellant submitted a declaration below stating that Fu told him during meetings from August to October 2006 that respondents had asked him (Fu) to sign a false declaration in return for dropping their efforts to collect their judgment against Fu, and that Fu republished false and defamatory statements about appellant to appellant’s business associates and friends. The trial court sustained respondents’ hearsay objections to these statements.
Appellant claims on appeal that the statements in his declaration were, in fact, admissible. “[A] plaintiff opposing a section 425.16 motion must support [his] claim with admissible evidence.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237.) We review the trial court’s evidentiary rulings in connection with a ruling on an anti-SLAPP motion for abuse of discretion and find no abuse of discretion. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.) Appellant argues that the statements at issue were not offered for the truth of the matter asserted. Although it is true that words that constitute defamation are not hearsay (2 McCormick on Evidence (6th ed. 2006) § 249, p. 133), appellant’s declaration contained multiple levels of hearsay (Evid. Code, § 1201), which made the statements inadmissible. (E.g. Russell v. Geis (1967) 251 Cal.App.2d 560, 568 [interrogatory response stating that defendant made defamatory remark to third person was inadmissible hearsay where third person was not called as a witness].) Appellant stated in his declaration that it was Fu—a third party—who told him that respondents made false statements about him. The trial court did not err in excluding these hearsay statements. (Ibid.)
We also reject appellant’s argument that the excluded statements were admissible as admissions of a party opponent (Evid. Code, § 1220), because Fu was not a party to this action. The statements likewise were not admissible as statements of a party agent (Evid. Code, § 1222), because there was no evidence that Fu was respondents’ agent.
Appellant also submitted a declaration from Guan stating that around October 2006, Fu showed him a letter written by Sierra that said appellant mismanaged and misappropriated funds and stole money from a company (presumably, SFBP). Although it is not clear whether the trial court even read the late-filed declaration or that it contained blatant hearsay, the trial court did permit the declaration to be filed.
Even assuming that Guan’s declaration was admissible and was considered, we agree with the trial court that respondents met their initial burden to show that appellant’s slander and libel causes of action arose from protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) In determining whether respondents made a threshold showing that appellant’s libel and slander causes of action arose from protected activity under the anti-SLAPP statute, we may look to the litigation privilege (Civ. Code, § 47, subd. (b)) to help construe the scope of section 425.16, subdivision (e). (Flatley v. Mauro, supra, 39 Cal.4th at pp. 322-323; A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125.) The litigation privilege “is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] 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. [Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) “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.” (Ibid.) The privilege “extends to preliminary conversations and interviews between a prospective witness and an attorney if they are some way related to or connected with a pending or contemplated action.” (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865.)
The statute provides in part that a privileged publication is one made “[i]n any . . . (2) judicial proceeding [or] (3) in any other official proceeding authorized by law.” (Civ. Code, § 47, subd. (b).)
Divorced from any context, respondents’ statements to Fu about alleged mismanagement of SFBP might fall outside the scope of protected activity under the anti-SLAPP statute. However, we may infer from the record that communication between respondents and Fu related to Fu’s testimony in Sierra’s action against him, as well as Sierra’s efforts to pursue a claim in appellant’s bankruptcy action. Although the communication may have been made outside the courtroom with no involvement of the court, we conclude it had “some connection or logical relation to the action” against appellant and was therefore subject to the litigation privilege. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) As the trial court stated, the “complaint arises out of litigation conduct.” As communication that was “made in connection with an issue under consideration or review by a . . . judicial body” (Code Civ. Proc., § 425.16, subd. (e)), it was protected activity under the anti-SLAPP statute.
The fact that Fu may have repeated his privileged communication with respondents to Guan and other (unspecified) third parties who were not parties to ongoing judicial proceedings does not mean that respondents’ statements were not protected by the anti-SLAPP statute or litigation privilege, as appellant claims. Although appellant is correct that the litigation privilege does not protect the republication of otherwise privileged material (Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 93), the cases upon which he relies examined whether a party could be liable for his own republication of otherwise privileged material. (Ibid.; Shahvar v. Superior Court (1994) 25 Cal.App.4th 653, 658, abrogated as stated in Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1144, fn. 3.) Susan A. and Shahvar did not address a situation such as the one here, where appellant claims that respondents should be liable for the republication of privileged material by a person who is not a party to the litigation (Fu).
In arguing whether respondents should be liable for Fu’s “republication” of statements allegedly made by respondents, the parties focus on whether Fu was acting as respondents’ agent. We agree with the trial court that the “allegation of agency is entirely unsupported by any evidence.” That is, there is no evidence that there was a “ ‘relationship which result[ed] from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ ” (Edwards v. Freeman (1949) 34 Cal.2d 589, 592, quoting Rest. Agency, § 1.)
“The publication of a libel or slander is a legal cause of any special harm resulting from its repetition by a third person if, but only if, [¶] . . .¶ (b) the repetition was authorized or intended by the original defamer, . . . .” (Rest.2d Torts, § 576, p. 200.) Although neither side explains why agency principles are relevant here, presumably their arguments are directed at whether Fu was “authorized” to repeat defamatory statements, or whether respondents “intended” that he repeat them. (Ibid.; see also Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 272 [defendant liable for republication where it authorized, consented to, or participated in republication].)
Appellant points to the fact that Fu told him respondents would drop their collection efforts if he cooperated by signing the Fu declaration, and that Fu tried to extort money from appellant by threatening to cooperate with respondents. As the trial court observed, far from showing that Fu was respondents’ agent, such evidence tends to show that Fu would not have cooperated with respondents had appellant paid him, and was therefore not acting as their agent. The allegation in Guan’s declaration that Fu told him that he was helping Sierra to get appellant to pay money likewise does not support appellant’s agency allegation. Even though Fu may have agreed to assist respondents in appellant’s bankruptcy action, it does not necessarily follow that he was their agent. (Edwards v. Freeman, supra, 34 Cal.2d at pp. 591-592 [fact that someone performs favor for another, without being subject to legal duty of service and without agreeing to right of control, does not establish agency relationship].) Appellant correctly notes that the court’s duty, in considering an anti-SLAPP motion, is not to weigh the evidence. (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at pp. 699-700.) Again, however, the record reveals no evidence that Fu was respondents’ agent.
Appellant argues for the first time in his reply brief that respondents are liable for Fu’s republication of their remarks because such republication was reasonably foreseeable. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1243 [“the repetition by a new party of another person’s earlier defamatory remark also gives rise to a separate cause of action for defamation against the original defamer, when the repetition was reasonably foreseeable”], original italics; Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 75 [original defamer is liable if “ ‘ “repetition was reasonably to be expected” ’ ”].) We first note that appellant did not plead a cause of action against respondents on this theory. (Di Giorgio Corp. v. Valley Labor Citizen, supra, 260 Cal.App.2d at pp. 273-274 [because cause of action not pleaded on theory of foreseeable republication, arguable that jury’s verdict could not be supported on that ground].)
Even assuming that appellant could advance this theory for the first time on appeal, we conclude that he did not present sufficient evidence to the trial court that it was reasonably foreseeable that Fu would repeat allegations by respondents about the way appellant managed SFBP’s assets. Fu was appellant’s business partner, so it may very well have been foreseeable that he would discuss their jointly owned company’s affairs with others. However, there is no evidence that it was reasonably foreseeable that Fu would republish his communication with respondents about the subject. In Schneider v. United Airlines, Inc., supra, 208 Cal.App.3d 71, relied on by appellant, the court held that it was reasonably foreseeable that a credit reporting agency would republish allegedly defamatory information about plaintiffs’ credit, “as that is the function of a credit reporting agency.” (Id. at p. 75.) Here, by contrast, Fu was apparently a potential witness for respondents, and we see no reason to depart from the general rule that “the author or originator of a libelous statement incurs no liability from an unauthorized repetition or republication of the statement by a third person.” (50 Am.Jur.2d Libel & Slander, § 244, p. 578.) Were we to conclude otherwise, attorneys who write to potential witnesses about testimony would be subject to liability simply because it is possible that the witness may show the letter to others. This would be particularly unfair here, where the evidence suggests that it was Fu (not respondents) who first made statements about appellant’s supposed mismanagement of SFBP (the company he owned with appellant), when he testified at trial in Sierra’s action against him.
We also reject appellant’s argument that the litigation privilege (and, by extension, the anti-SLAPP statute) does not apply to respondents’ statements because they were made “when no lawsuit was seriously being considered,” or when the litigation was not being considered in good faith. In considering whether prelitigation statements are subject to the litigation privilege, courts consider whether they were made “with a good faith belief in a legally viable claim and in serious contemplation of litigation.” (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 266; see also A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc., supra, 137 Cal.App.4th at p. 1128.) However, all of the statements alleged by appellant were made around the time that respondent Sierra in fact pursued a claim against appellant in his bankruptcy action, so there is no dispute that the statements were made when litigation was seriously being considered. For example, respondent Coopersmith threatened that he would “ ‘go after’ ” appellant unless he paid Sierra “[a]round September 2006,” the same month that Sierra filed a proof of claim in appellant’s bankruptcy action. The Fu declaration was signed three days after Sierra filed its proof of claim in appellant’s bankruptcy action. Guan declared that Fu showed him correspondence from respondents “[a]round October 2006,” which is after Sierra filed its claim. A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc., supra, 137 Cal.App.4th at pages 1127-1128, upon which appellant relies, is distinguishable, because there, no lawsuit was ever filed.
Finally, appellant argues that the challenged statements here are not protected because respondents’ conduct could “be fairly characterized as extortion,” speech that is not protected by the anti-SLAPP statute. (Flatley v. Mauro, supra, 39 Cal.4th at pp. 332-333.) “ ‘Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear . . . .’ (Pen. Code, § 518.) Fear, for purposes of extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or [¶] 3. To expose, or to impute to him . . . any deformity, disgrace or crime[.]’ (Pen. Code, § 519.)” (Id. at p. 326.) It is a “rare case[] where the defendant’s assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law.” (Id. at p. 320, italics added.) Indeed, the Supreme Court emphasized in Flatley that “our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion.” (Id. at p. 332, fn. 16.) We conclude that Coopersmith’s demand that appellant pay the judgment against Fu, as well as his statement that Sierra would make it “costly and burdensome” for appellant to defend any action against him, while perhaps “rude, aggressive, or even belligerent” (ibid.), did not amount to extortion as a mater of law as appellant claims.
In short, we agree with the trial court that respondents met their initial burden to show that appellant’s libel and slander causes of action arose from protected activity. We next consider whether appellant demonstrated a probability of prevailing on those causes of action. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
Although the trial court’s order did not state its reason for concluding that appellant had not shown a probability of prevailing, the court stated at the hearing that appellant had “failed to show any likelihood of success and cannot because the activity by the defendant is all privileged.” We agree. Just as there is a relationship between the litigation privilege and the anti-SLAPP statute when construing the scope of section 425.16, subdivision (e) with respect to determining whether communication is protected activity, “[t]he 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.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 323.) In arguing that he has shown a probability of prevailing on his libel and slander claims, appellant advances the same arguments that he did for the first prong of the two-step analysis of anti-SLAPP motions. For the same reasons set forth above, we conclude that any statements by respondents were protected by the litigation privilege, and we reject appellant’s arguments that the trial court erred in granting respondents’ anti-SLAPP motion with respect to appellant’s libel and slander causes of action.
C. Abuse of Process Cause of Action.
“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. [Citations.] It has been ‘interpreted broadly to encompass the entire range of “procedures” incident to litigation.’ ” (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1056-1057 [trial court properly granted anti-SLAPP motion on abuse of process claim].) “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Id. at p. 1057.) The litigation privilege protects “communicative” conduct in the context of abuse of process claims. (Id. at p. 1058.)
Appellant’s complaint alleged that defendants threatened to sue him if he did not pay the judgment Sierra held against Fu and SFBP, and that respondents thereafter “misused the bankruptcy claim process as an extortion tool.” He also alleged that the real purpose of filing a claim in appellant’s bankruptcy action was to “harass” appellant and to cause appellant to incur “great legal expenses, trouble, and mental anguish.”
Respondents’ “act of filing the [proof of claim] in [appellant’s bankruptcy] action squarely falls within section 425.16, subdivision (e)(1).” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055 [affirming granting of anti-SLAPP motion for abuse of process cause of action].) Appellant’s attempt to characterize respondents’ filing of their claim against appellant as “noncommunicative” conduct is clearly contrary to case law. (Ibid.; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058 [filing of pleadings in litigation is communicative].) Respondents met their burden of showing that appellant’s abuse of process claim is based on conduct and statements protected by the anti-SLAPP law. (Contemporary Services Corp. at p. 1055.)
Appellant has not established a probability that he would prevail on his abuse of process cause of action. It is well settled that “the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169 and cases cited therein, italics added; see also Contemporary Services Corp. v. Staff Pro Inc., supra, 152 Cal.App.4th at p. 1059; Ramona Unified School Dist v. Tsiknas (2005) 135 Cal.App.4th 510, 520 [affirming grant of anti-SLAPP motion].)
Perhaps recognizing that his abuse of process claim fails as a matter of law, appellant argues on appeal that he could have “labeled” this cause of action as one for malicious prosecution. We agree, but we nonetheless affirm the trial court’s striking of the cause of action.
We note that this argument is inconsistent with statements he made in the trial court. In their special motion to strike, respondents argued that they had probable cause to file a proof of claim in appellant’s bankruptcy action. In a section titled “Malicious Prosecution Distinguished,” appellant argued in his opposition that respondents’ argument was “misguided” because probable cause is not an element of an abuse of process cause of action. In other words, appellant made clear that he was not pursuing a cause of action for malicious prosecution, even though his complaint alleged the elements of such a claim.
In order to establish a cause of action for malicious prosecution, “a plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ ” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) “The gravamen of [appellant’s] claim asserts [he] was injured by [respondents’] initiation or continued pursuit of meritless litigation for malicious purposes. We disregard [appellant’s] labeling and instead conclude the gravamen of [appellant’s] claim, although labeled a claim for abuse of process, is for malicious prosecution . . . .” (Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at p. 522.)
As to the first prong of our two-step analysis, we conclude that appellant’s malicious prosecution cause of action arose from protected activity. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 741 [by definition, malicious prosecution suit alleges that defendant committed tort by filing lawsuit, which is protected activity under anti-SLAPP statute].) Although it is true, as appellant argues, that the litigation privilege does not bar an action for malicious prosecution, such a claim is not similarly exempt from the anti-SLAPP statute. (Id. at p. 736.)
As to whether appellant demonstrated a probability of prevailing on a malicious prosecution claim, we agree with respondents that appellant failed to adequately demonstrate that they lacked probable cause in pursuing their action in appellant’s bankruptcy action. “[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury.” (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875.) “A plaintiff has probable cause to bring a civil suit if his claim is legally tenable. This question is addressed objectively, without regard to the mental state of plaintiff or his attorney.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382.) “Probable cause is present unless any reasonable attorney would agree that the action is totally and completely without merit.” (Ibid., original italics.) “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.” (Ibid., original italics.)
The trustee in appellant’s bankruptcy action filed a motion for summary judgment on March 30, 2007. It advanced two separate arguments: it claimed that (1) Sierra could not amend its judgment against Fu and SFBP to add appellant as a judgment debtor, and (2) Sierra could not “sustain its heavy burden to prove that Yan was the alter ego of SFBP.” In its opposition, Sierra argued that the court had the authority to add appellant as a judgment debtor, and that appellant was the alter ego of SFBP. In the bankruptcy court’s order on respondent Sierra’s motion (which is included in the record on appeal), the court granted summary judgment on the first issue, prohibiting amendment of Sierra’s state-court judgment against SFBP and Fu. As to the second issue, the court stated: “The court determines that the debt owed by SFBP, Inc. to Sierra (Debt) was conclusively established by the Judgment, and that the only remaining issue regarding Trustee’s objection to the proof of claim filed by Sierra in this case on September 22, 2006 (Claim) is whether Debtor Yan is liable to Sierra for the Debt under an alter-ego theory.” The case proceeded to trial, and the trustee prevailed.
That motion is not contained in the record on appeal. On its own motion, the court takes judicial notice of the motion; Sierra’s April 12, 2007 opposition; the trustee’s April 20, 2007 reply; and Sierra’s April 25, 2007 supplemental opposition. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
“[D]enial of defendant’s summary judgment in an earlier case normally establishes there was probable cause to sue, thus barring a later malicious prosecution suit.” (Roberts v. Sentry Life Insurance, supra, 76 Cal.App.4th at p. 384.) “A federal judge denies summary judgment if there are ‘genuine issues of material fact’ for trial, and the moving party is not ‘entitled to judgment as a matter of law.’ (Fed. Rules Civ. Proc., rule 56(c), 28 U.S.C.).” (Id. at p. 383.) “Because denial of summary judgment is a sound indicator of probable cause, it is sensible to accept it as establishing probable cause defeating a later malicious prosecution suit. Doing so serves the policy expressed in Sheldon Appel to discourage dubious malicious prosecution suits.” (Id. at p. 384.) Appellant argues that respondents knew that they did not have a valid basis for claiming he was liable for the judgment against SFBP and Fu. In light of the fact that the bankruptcy court concluded that a trial on whether appellant was the alter ego of SFBP was appropriate, it follows that appellant failed to show that Sierra’s claim was not “objectively tenable” (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 883), and he therefore has not established a probability of prevailing. The fact that the trustee’s motion for summary judgment was granted on the related issue of whether Sierra could amend its judgment against SFBP to add appellant “does not establish lack of probable cause as a matter of law. ‘ “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . .” ’ ” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 742.)
Appellant claims that the denial of summary judgment does not preclude a finding of lack of probable cause where a summary judgment is denied because “materially false facts [were] submitted in opposition.” There is no evidentiary support, however, for his claim that the trustee’s motion for summary judgment was denied because respondents “submitted false accusations in the form of a perjured declaration that was authored by Respondents themselves.”
The trial court concluded that all the alleged conduct by respondents was protected and that appellant had not shown any probability of prevailing. This is true whether the third cause of action is construed as one for abuse of process or malicious prosecution.
III. Disposition
The order granting respondents’ special motion to strike is affirmed. Respondents shall recover their costs on appeal.
We concur: Reardon, Acting P.J. Rivera, J.