Opinion
B227844
11-28-2011
ARBI BABAEI, Plaintiff and Appellant, v. EDWIN MOVAGHARIAN, Defendant and Respondent.
Greenblatt & Associates, Fredric J. Greenblatt and Lisa L. Loveridge, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC439346)
APPEAL from an order of the Superior Court of Los Angeles County. John P. Shook, Judge. Affirmed.
Greenblatt & Associates, Fredric J. Greenblatt and Lisa L. Loveridge, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Arbi Babaei filed a malicious prosecution action against Edwin Movagharian. Babaei now appeals the trial court's order granting Movagharian's special motion to strike the malicious prosecution complaint pursuant to Code of Civil Procedure section 425.16 (section 425.16). We affirm the trial court order.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, Movagharian filed a civil suit against Jack and Sharon Sallakian, Efrain Barraza, Babaei, and Laboratory Instruments Specialists, Inc. (LIS). According to the complaint, in 2003, Movagharian, Jack Sallakian, and Barraza formed LIS, a company specializing in food quality testing equipment. Movagharian provided significant capital funds to start up the business, and incurred hundreds of thousands of dollars in personal debt on behalf of the company. LIS and its shareholders agreed to pay him back. At some point, Sallakian and Barraza prevented Movagharian from having any further involvement in the business. He realized they did not intend to repay the funds he had put into the company. The complaint alleged Sallakian and Barraza hired "a so-called 'business specialist,'" Babaei, "in [a] conspiracy to swindle [Movagharian] out of his investment in LIS." It further alleged that Babaei proposed an agreement on behalf of the other defendants that would provide for installment payments on the personal debt Movagharian had incurred on LIS's behalf. According to the complaint, the defendants tried to coerce Movagharian into accepting the proposal by failing to make payments on credit card debt and car loans he had guaranteed for LIS.
The complaint asserted 10 causes of action, including breach of fiduciary duty and breach of contract. Babaei was named in causes of action for conspiracy, false reports under Corporations Code section 1507, and "intentional interference with contract or other economic relationship." The complaint alleged the defendants conspired to unlawfully exclude Movagharian from participating in LIS to obtain his shares in the company for a nominal price, and to force him to accept a "discriminatory buy-out proposal." It further alleged that in 2007, the defendants, including Babaei, gave Movagharian reports containing what purported to be minutes from a board of directors meeting that never took place.
In August 2007, Babaei propounded 104 special interrogatories to Movagharian, requesting facts supporting the complaint's allegations, identification of witnesses with knowledge of such facts, and identification of relevant documents. Movagharian objected to the interrogatories as burdensome and oppressive. He provided responses to the first 35 interrogatories without asserting specific objections. In response to the remaining interrogatories, he again objected they were burdensome and oppressive. He also asserted Babaei's attorney had refused to limit the number or scope of the questions, or allow Movagharian more time to respond. Movagharian additionally objected based on lack of relevance. He broadly summarized his theory of Babaei's liability as part of the objection:
"Requesting party is accused in the complaint of fairly limited involvement in the underlying acts. Basically, the role of Arbi Babaei was to conspire with other shareholders and devise a scheme to improperly exclude plaintiff from LIS. However, the inquiry is made into every little aspect of LIS story including periods of time when requesting party had nothing to do with LIS and did not even know that LIS existed."
The special interrogatories directed to the complaint's allegations regarding Babaei began with interrogatory number 55 of 104. To answer these interrogatories, Movagharian objected as described above or stated that the "statement speaks for itself; identified the defendants in the case as having information regarding the allegations; and referred to exhibits attached to requests for production.
This set of special interrogatories did not inquire about the factual basis of the interference with contract claim.
In October 2008, Babaei took Movagharian's deposition. Movagharian testified that in December 2006, Babaei told him he should not contact Sallakian and that he (Babaei) would be in charge of settling the LIS shareholders' dispute. When asked if he had any facts "that Mr. Babaei ever participated in a conspiracy to swindle [him] out of [his] investment in LIS," or "facts that [Babaei] discriminated against [him] regarding a buyout proposal," Movagharian responded: "I don't know." He also responded "I don't know" to questions regarding whether he had any facts indicating Babaei "acted fraudulently" toward him; participated in creating any false documents; or acted to disrupt his "economic relationship with LIS." When asked what harm Babaei had caused him, Movagharian again responded he did not know. Yet, the deposition excerpts included in the record also contained the following colloquy:
"Q: Do you have any facts that LIS hired Arbi Babaei in order to improperly exclude you from participation in LIS affairs?
A: I don't know.
Q: When you say you don't know, does that mean you don't know if you have any facts or you don't know if he was hired to improperly exclude you?
A: I don't know if I - I don't know if he was hired to - I know for a fact he was hired to exclude me because that's the type of businessman he is. But I don't have any facts right now as to the extent of that.
[¶] . . . [¶]
Q: And in that 15 or 20 times [that you talked to Babaei face to face or in person], you came to an opinion as to the type of businessman he was?
A: He told me he specializes in business acquisition and hostile takeovers, and just the time frame as to the friendship, all of a sudden changed. I was gone, [Babaei] was in the picture, agreement was here, guns was to my head. Take this deal, or we're not paying for your payments. I just put the two together -"
[¶] . . . [¶]
Q: What did Mr. Babaei do to improperly exclude you from participation in LIS affairs?
[¶] . . . [¶]
A: I don't understand the question.
Q: Okay. When you say that you were improperly excluded from participation in LIS affairs, tell me what you mean.
[¶] . . . [¶]
A: As far as the officers meetings, the board of directors meetings, I wasn't notified. And all of a sudden, I get a list of meetings that took place without my knowledge, and things were discussed that my name was mentioned in that supposed minutes.
Q: What facts do you have that Arbi was at all involved with meetings taking place without your knowledge?
A: I wasn't there, so I don't know.
[¶] . . . [¶]
Q: What facts do you have that LIS hired Arbi Babaei to force you to give up your shares in LIS?
A: Just the time frame, how he was hired, I was fired, the - the agreement came about.
Q: Okay. Anything else?
A: Jack [Sallakian] is not smart enough to come up with this scheme. I am telling you, it was someone who knew about the business structure, knew about hostile takeovers, and structured this deal where he is the good guy, trying to trick me into signing a deal, knowing I was desperate. . . ."
In early November 2008, Movagharian issued a settlement proposal to the defendants. Movagharian proposed LIS and its shareholders would be required to make monthly payments to Movagharian for a five-year period, "in exchange for mutual dismissal with the court retaining jurisdiction." The defendants, excepting Babaei, would be jointly liable for all payments. A few days after Movagharian advanced this proposal, his counsel and counsel for Babaei exchanged e-mails. It appears the exchange was precipitated by letters or e-mails not included in the record. But the included e-mail exchange began with Movagharian's counsel informing Babaei's counsel that he saw "no basis for your request to send a dismissal form. Accordingly: no such form will be filed." Babaei's counsel responded: "Your letter confirms that Mr. Babaei has no liability to your client. Why do you insist on exposing your client and yourself to a malicious prosecution action??? [¶] DO YOU REALLY WANT ME IN YOUR TRIAL AGAINST LIS et al.??????" Movagharian's counsel responded: "My letter confirms nothing. I will see you in February and Happy New Year! If your client wants out, may be [sic] he can make a settlement offer. I would certainly discuss it with my client immediately." Babaei's counsel asked what his client would be settling. In the final email of the exchange, Movagharian's counsel replied:
Babaei offered these e-mails in support of his opposition to the special motion to strike. Movagharian did not file evidentiary objections to challenge any of the evidence Babaei submitted in support of his opposition.
It is unclear if the letter referred to was the settlement proposal letter mentioned above, or other correspondence not included in the record.
"This is my last communication regarding this. If your client is not sure as to his liability, why did not you [sic] file a MSJ? Please read the complaint and my trial brief. [¶] You are correct, I would like you out of the case. But for a different reason. I think you are an obstructionist and you have proven so on many occasions. Your actions go beyond regular litigation techniques and are designed,
in my opinion, to delay and make more expensive the case. In any case only because of this, my client is offering to dismiss your client with prejudice for $5,000.00. Take it or leave it, there will be no more purposeless exchanges. . . . That is the best I can do. Otherwise, happy holidays, I wish you and your family well during holiday season."
On May 12, 2009, Sallakian, Barraza, and Movagharian signed a settlement agreement. The agreement identified all of the defendants, including Babaei, as settling parties. Under the agreement, Sallakian, Barraza, and LIS were to pay settlement funds to Movagharian. Babaei and Sharon Sallakian were to have no obligation to pay any sums under the agreement. Movagharian was to dismiss his claims against Babaei and Sharon Sallakian with prejudice in exchange for a waiver of costs.
The record does not reveal whether Babaei and his counsel were involved in the settlement discussions that resulted in the agreement described above. But neither Babaei nor his counsel signed the agreement. On May 15, 2009, Movagharian's counsel informed opposing counsel he planned to be in court to try the case the following Monday. A few days later, Movagharian's counsel indicated in a letter to opposing counsel that he was setting a deadline for the parties to accept the then current draft of the settlement agreement. He stated: "Unless we have it signed by ALL parties and ALL attorneys by May 22, 2009, there will be no settlement on the current terms. . . . I am setting the deadline, so I have time to prepare for trial over the week-end if there is no settlement."
Despite this exchange, Movagharian later dismissed his claims against Babaei without prejudice.
In his appellate briefing, Babaei further indicates the case was dismissed with prejudice as to all parties on July 2, 2009, but he provides no supporting authority for this statement. His opposition to the special motion to strike, filed in the court below, similarly provides the July 2 date without citation. The record includes a copy of a dismissal of the claims against Babaei, without prejudice. The dismissal is signed May 28, 2009, but bears no court filing stamp. No copy of a dismissal with prejudice was included in the record on appeal.
In June 2010, Babaei instituted a malicious prosecution lawsuit against Movagharian and his attorney in the underlying action. Movagharian filed a special motion to strike under section 425.16 (anti-SLAPP motion), asserting Babaei could not establish a probability of prevailing on the malicious prosecution claim. Movagharian submitted a declaration in support of the motion. Babaei filed evidentiary objections to much of the declaration, many of which the trial court sustained. In the portions not deemed objectionable, Movagharian declared he loaned LIS more than $100,000 and incurred personal credit card debt on behalf of the company. He declared Sallakian, Barraza, and Babaei informed him he was being terminated in August 2006, and Babaei communicated with him regarding a potential buyout of his stake in LIS. The defendants offered Movagharian a deal he described as resolving the debt he had incurred but not separately compensating him for his shares in LIS.
Movagharian stated he hired an attorney when he realized he would lose his stake in LIS. After reviewing the evidence and facts, the attorney recommended Movagharian file suit against the defendants. Movagharian declared the "main goal of the lawsuit was to secure [his] interest at LIS and/or obtain fair compensation for [his] investment." He explained that he had no previous experience in depositions and lacked understanding of "sophisticated legal concepts." He relied on the opinion of his attorney.
Movagharian also described the settlement: "When the case finally came to trial, we have reached a settlement with all defendants except for Mr. BABAEI. . . . As a result of the settlement, individual partners at LIS agreed to guarantee payments to me in excess of $3,000.00 per month until my investment (not only loans) is paid in full. It represented a compromise we reached with all defendants. Even more importantly, I regained LIS partners as friends. So far, more than a year later, the LIS and its partners made all their payments as agreed. . . . Through my attorney we offered to have Mr. BABAEI join in the settlement. We did not ask for any money from Mr. BABAEI, because the financial side was already taken care of."
Babaei, for his part, declared he had nothing to do with the decision to fire Movagharian, he did not participate in "ascertaining any proposed amount(s) (nominal or not) for the buy-out of Movagharian's interest in LIS," he did not agree to exclude Movagharian from participating in LIS to obtain his shares for a nominal price, and he was unaware of any agreement on the part of the other defendants to pay debts Movagharian had personally guaranteed on LIS's behalf. Babaei described pre-litigation negotiations in which Movagharian demanded a $500,000 payment from Sallakian, and Movagharian's attorney told Babaei he would personally be subjected to "costly litigation" if Movagharian's demands were not met. Babaei further declared that before the underlying litigation ensued, Movagharian rejected a buyout proposal of $288,000, more than the $250,000 he would eventually accept in resolution of his claims.
Babaei's counsel from the underlying action continued to represent him in the malpractice suit. Counsel also filed a declaration in opposition to the anti-SLAPP motion. Counsel declared he repeatedly asked Movagharian's counsel to dismiss Babaei from the underlying lawsuit, but Movagharian refused to entertain a dismissal without a monetary settlement. Counsel asserted Movagharian never articulated a factual basis for his claims. He cited the interrogatory responses and deposition transcript described above.
The trial court granted the anti-SLAPP motion. The court concluded Babaei did not establish a probability of prevailing on the favorable termination prong of his malicious prosecution claim because the dismissal was based on a settlement. This appeal timely followed.
DISCUSSION
I. Applicable Legal Principles
A. Section 425.16: The Anti-SLAPP Statute
"The Legislature enacted the anti-SLAPP statute to address the societal ills caused by meritless lawsuits that are filed to chill the exercise of First Amendment rights. (§ 425.16, subd. (a).) The statute accomplishes this end by providing a special procedure for striking meritless, chilling causes of action at the earliest possible stages of litigation." (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443.) "The analysis of an anti-SLAPP motion . . . involves two steps. 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.' [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 (Oasis).)
"To satisfy the second prong, 'a plaintiff responding to an anti-SLAPP motion must " 'state[ ] and substantiate[ ] a legally sufficient claim.' " [Citations.] 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." ' [Citation.] 'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) 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.]" (Oasis, supra, 51 Cal.4th at p. 820.)
"We review an order granting or denying a motion to strike under section 425.16 de novo. [Citation.]" (Oasis, supra, 51 Cal.4th at p. 820.) "In other words, we employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted." (Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1652.)
B. Malicious Prosecution
To establish a malicious prosecution claim, the plaintiff must show that the prior action was pursued to a legal termination in the plaintiff's favor, was brought without probable cause, and was initiated with malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup).)
II. Babaei Did Not Establish a Probability of Prevailing on His Claim
A malicious prosecution action generally "arises from" protected activity, as defined by section 425.16. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 741.) This point was undisputed below. We therefore turn to the second step in evaluating the anti-SLAPP motion. In order to defeat Movagharian's anti-SLAPP motion, Babaei was required to establish a probability of prevailing on all three elements of a malicious prosecution cause of action: favorable termination, lack of probable cause, and malice. We begin our discussion with the malice element and find it dispositive.
A. The Malice Element of Malicious Prosecution
" '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.' [Citations.] Malice 'may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause.' [Citation.]" (Soukup, supra, 39 Cal.4th at p. 292.) "[A] lack of probable cause in the underlying action, by itself, is insufficient to show malice. [Citation.]" (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225 (Daniels).) However, "proof of malice can consist of evidence a party knowingly brings an action without probable cause." (Id. at p. 226.) Further, "malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause." (Ibid.) "Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence. [Citation.]" (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 (HMS Capital).)
B. Babaei Did Not Establish a Prima Facie Case of Malice
On appeal, Babaei contends he met his burden in opposing the anti-SLAPP motion by showing Movagharian had no evidence to support the allegations in his complaint and therefore lacked probable cause to prosecute his claims. He also asserts he presented sufficient evidence to show Movagharian included Babaei in the underlying action to force a monetary settlement that had no relation to the merits of his claims. We address these contentions in turn.
i. Lack of Probable Cause
Even if Babaei established Movagharian objectively lacked probable cause to prosecute the claims against him, this would not be enough on its own to demonstrate malice. (Daniels, supra, 182 Cal.App.4th at p. 225.) Objective lack of probable cause is only one factor considered in determining malice. It must be supplemented by other evidence that proves either actual hostility or ill will, or a " ' subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant. [Citation.]' [Citation.]" (HMS Capital, supra, 118 Cal.App.4th at p. 218.)
Although "[a]dditional proof of malice can consist of evidence a party knowingly brings an action without probable cause[,]" Babaei did not produce such evidence. (Daniel, supra, 182 Cal.App.4th at p. 226.) His evidence of lack of probable cause consisted of Movagharian's interrogatory responses and excerpts from his deposition. The interrogatory responses failed to create an inference of lack of probable cause. They were primarily objections and a refusal to provide more detailed answers because the requests were objectionable in number and scope. The record does not reflect that Babaei moved to compel further or more satisfactory responses to the interrogatories. (See Code Civ. Proc., § 2030.300 [propounding party may move for an order compelling further response if answer is evasive or incomplete, or if an objection is without merit or too general].) Standing alone, the interrogatory responses demonstrated only Movagharian's refusal to provide a complete answer to the questions related to Babaei, rather than an admission that he knowingly sued Babaei without probable cause.
The excerpts from Movagharian's deposition suggested he lacked personal knowledge of direct evidence to support his claims. However, the excerpts also established Movagharian had circumstantial evidence supporting his theory of Babaei's involvement in the alleged wrongful actions of the other defendants. Movagharian explained he came to the conclusion Babaei was involved in the efforts to oust him from LIS because of representations Babaei made to him about the nature of his expertise— hostile takeovers and restructuring. He was suspicious of minutes of board meetings purportedly held in his absence. Movagharian also believed Babaei was involved because of the timing of Babaei's hire in relation to the proposals the defendants made to Movagharian. Circumstantial evidence may properly be used to prove a conspiracy; in this case, a conspiracy to breach LIS's agreement to pay the debts Movagharian had personally incurred or guaranteed on behalf of the company as a means to secure his interest in LIS for little or no compensation. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [elements of conspiracy " ' " 'may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.' " ' "].) The excerpts from Movagharian's deposition did not create an inference that he knowingly brought or maintained his claims against Babaei without probable cause.
Several of Movagharian's interrogatory responses indicated the defendants possessed information relevant to his claims. Babaei offered no evidence this was untrue, or that Movagharian knew it was untrue. Babaei did not assert that Movagharian failed to conduct his own discovery. He also did not demonstrate that prior to the resolution of the case, Movagharian's claims were explicitly disproved. (Daniels, supra, 182 Cal.App.4th at p. 227 [attorneys' sustained inability to provide support for client's allegations, on its own, did not allow an inference they knew there was no probable cause for continuing to prosecute the underlying action].) Even accepted as true, Babaei's evidence in support of his opposition did not create an inference that Movagharian knowingly brought his action without probable cause, or continued to prosecute it after discovering new information or law that made clear the suit was objectively untenable. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1031.)
Babaei's counsel declared that proposed stipulations Movagharian circulated shortly before trial was set to begin established the claims against Babaei were not viable. The stipulations do not support counsel's assertion. At least two of the proposed stipulations specifically concerned Babaei, and several others may have been relevant to claims against him.
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ii. Forcing a Settlement
The only other evidence Babaei offered to show malice concerned various settlement discussions in the underlying action. Babaei declared that before Movagharian filed suit he demanded $500,000 from the other defendants as payment for his interest in LIS. Sallakian made a counteroffer, which Movagharian rejected. Babaei then suggested that the parties attempt to sell LIS at Movagharian's suggested price, but Movagharian and his counsel refused. According to Babaei, Movagharian's attorney told him if Sallakian did not pay the requested $500,000, " 'costly litigation was to follow against [Babaei] personally." Babaei's counsel declared he repeatedly asked that Babaei be dismissed from the lawsuit, but Movagharian's counsel refused to dismiss Babaei without a monetary settlement.
Evidence that a plaintiff has commenced a suit merely to force a settlement unrelated to the merits of the claims may demonstrate malice. (HMS Capital, supra, 118 Cal.App.4th at p. 218; Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.) But even when credited, Babaei's proffered evidence did not create this inference. Babaei's declaration indicates Movagharian was engaged in negotiations with the other defendants regarding payment for his interest in the company. Babaei admitted minimal involvement in the negotiations as a conduit. Further, his own consulting proposal for LIS indicated he would be making recommendations to LIS regarding changes in the company and restructuring. Babaei provided no facts suggesting Movagharian knew Babaei was uninvolved in what appeared to be a concerted effort to force Movagharian to relinquish his interest for less than its fair value. The satisfaction of a personal or financial purpose is not improper. (Soukup, supra, 39 Cal.4th at p. 292.) Here, even Babaei's account indicated the parties were engaged in a bona fide dispute tied to Movagharian's financial interest in LIS. Babaei was involved in some form. That Movagharian's counsel warned Babaei that litigation would ensue, and would involve him, if a pre-litigation resolution could not be reached, is not an indication that Movagharian instituted claims against Babaei with malice.
Moreover, as noted above, Babaei did not provide facts that, if true, would establish Movagharian knowingly brought or maintained claims against Babaei without probable cause. Without such evidence, Movagharian's refusal to dismiss Babaei during the litigation and before any resolution of his claims, did not create the inference that the litigation was commenced or maintained for an improper purpose. Babaei's counsel's statements to Movagharian's counsel that the case had no merit simply informed Movagharian's counsel of his adversary's position. Babaei did not show that his counsel's assertions were supported or accompanied by evidence disproving Movagharian's claims. (Daniels, supra, 182 Cal.App.4th at p. 223; Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 627, disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn.7 and Zamos v. Stroud (2004) 32 Cal.4th 958, 968-970 [letter stating counsel for other side was "substantially misinformed regarding the facts" did not put attorneys on notice of any specific fatal flaw in claim and did not negate probable cause for filing the action; such letters are commonly exchanged between counsel in "almost every civil dispute"].)
Nothing in the settlement discussions Babaei described, Movagharian's refusal to dismiss Babaei from the case, or the eventual dismissal of claims against Babaei once a settlement was reached, created an inference that Movagharian's claims were intended to force a settlement unrelated to the merits of his claims. HMS Capital, supra, 118 Cal.App.4th 204, provides an instructive contrast to this case. In HMS Capital, the plaintiff in the underlying dispute, Lawyers Title, demanded cancellation fees from HMS arising out of the termination of a contract relating to title insurance and escrow services. (Id. at p. 208.) After judgment was entered for HMS, it sued Lawyers Title for malicious prosecution. (Id. at p. 209.) Lawyers Title filed an anti-SLAPP motion. In opposition to the motion, HMS offered evidence showing that in the underlying action, it sent Lawyers Title a letter attaching the escrow instructions at issue. The escrow instructions clearly stated no cancellation fees would be charged. (Id. at pp. 209, 218.) HMS also produced evidence indicating Lawyers Title took no depositions and propounded only one set of form interrogatories. On several occasions, HMS's counsel told Lawyers Title that its case was unfounded, but counsel for Lawyers Title insisted on a monetary payment to settle the case. (Id. at p. 209.)
The Court of Appeal found HMS made a sufficient prima facie showing of malice to withstand an anti-SLAPP motion. Given the evidence from the escrow instructions and the lack of any discussion between the parties of cancellation fees, there was an inference that the underlying action was frivolous. The Court of Appeal concluded the above facts "could support a conclusion that Lawyers Title was simply trying to squeeze a settlement from HMS on a baseless case, and hence evidence of malice." (HMS Capital, supra, 118 Cal.App.4th at p. 218.)
Here, there was no evidence that Movagharian failed to propound any discovery. There was no indication that Babaei's counsel supported his requests for Babaei's dismissal from the underlying action with evidence establishing Movagharian's claims were unfounded, as was the case in HMS Capital. No evidence created an inference that Movagharian's claims were frivolous. In opposing the anti-SLAPP motion, it was Babaei's burden to produce admissible evidence creating a sufficient prima facie case of malice. The evidence he offered did not meet that burden. The trial court properly granted the anti-SLAPP motion.
III. Attorneys' Fees
Under section 425.16, subdivision (c), a defendant who prevails on an anti-SLAPP motion is entitled to attorneys' fees. Movagharian requested attorneys' fees in his anti-SLAPP motion, and supported the request with a declaration from his attorney. The trial court's order granting Movagharian's anti-SLAPP motion did not specifically mention a fee award. On appeal, Babaei contends that to the extent the trial court order awarded the entirety of the attorneys' fees Movagharian requested, the trial court abused its discretion.
Although the trial court granted Movagharian's anti-SLAPP motion, the court's order is entirely silent as to his request for attorneys' fees. There is also no indication in the record that the court addressed the fee request in a subsequent proceeding subject to this appeal. (See, e.g., Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1245.) At this juncture there is no trial court exercise of discretion with respect to fees for us to review.
DISPOSITION
The trial court order is affirmed. As there has been no appearance for respondent, no costs will be awarded on appeal.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.