Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Terry A. Green, Judge.
Richland & Associates and Felipa R. Richland for Plaintiff and Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, John R. Clifford, Allison L. Jones; Greines, Martin, Stein & Richland, Timothy T. Coates, and Jens B. Koepke for Defendant and Respondent.
MANELLA, J.
INTRODUCTION
Nathan Enterprises Corporation (NEC) sued Darren D. Chaker for malicious prosecution, abuse of process, and negligent and intentional infliction of emotional distress based on two lawsuits Chaker had filed against NEC in federal court. In response, Chaker moved to strike those causes of action pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP statute. The superior court granted Chaker’s anti-SLAPP motion in its entirety and later awarded Chaker attorney fees because he had prevailed on the anti-SLAPP motion. NEC appeals from the trial court’s orders. After independently reviewing the record, we conclude that the cause of action for malicious prosecution relating to one of the lawsuits should not be stricken. The remaining causes of action, however, should be stricken. In light of our ruling, the trial court’s order awarding attorney fees must be reconsidered. Thus, we will remand the case for further proceedings.
All further section citations are to the Code of Civil Procedure, unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
On February 13, 2008, NEC and its counsel, Felipa R. Richland, filed the underlying action against Chaker and his attorneys, asserting five causes of action. In the first two causes of action, NEC and Richland alleged malicious prosecution based upon the filing of two federal lawsuits (hereinafter referred to as Chaker I and Chaker II) and abuse of process for filing Chaker II. In the third and fourth causes of action, plaintiffs sued for negligent and intentional infliction of emotional distress suffered by Richland arising from the filing of Chaker II and from Chaker’s having slashed the tires of Richland’s car. In the fifth cause of action, plaintiffs sued for property damage to Richland’s car.
Chaker’s attorneys were subsequently dismissed from the case, and neither NEC nor Richland has appealed that dismissal.
Chaker filed an anti-SLAPP motion to strike the first four causes of action in the complaint. In that motion, he contended that the causes of action should be stricken because they were based upon protected activities, the filing of lawsuits. He also contended that the causes of action were barred by the applicable statute of limitations and that plaintiffs had not presented sufficient evidence to substantiate their claims.
In response, NEC and Richland filed an opposition to the anti-SLAPP motion. In support of the opposition, Richland filed a declaration with 15 documents, labeled as exhibits A through J.
1. Chaker I
Exhibits A, C, F, G, and H consist of documents related to Chaker I. Exhibit A is the federal docket for Chaker I. It shows that Chaker filed a complaint against NEC, that NEC moved for summary judgment, and that the district court granted summary judgment to NEC.
Exhibit F consisted of the various complaints filed by Chaker against NEC for allegedly violating the federal Fair Credit Reporting Act (FCRA), Title 15 United States Code section § 1681 et seq. In the original complaint, Chaker alleged that on or about October 8, 2003, NEC requested, obtained, and used Chaker’s consumer credit report without a lawful purpose. He further alleged that, “[a]t no time did [he] authorize [NEC] to request, obtain, or use [his] consumer report.” The complaint was subsequently amended to allege that NEC also had violated California’s Holden Credit Denial Disclosure Act of 1976 (former Civ. Code, § 1787), and that it had taken adverse action against Chaker (as defined by the statutes) without proper notice to him.
In response to Chaker’s complaint, NEC filed motions to dismiss and for summary judgment. In support of its motion for summary judgment, NEC filed documents purporting to show that Chaker had requested that NEC initiate the credit inquiry on October 8, 2003. Some of these documents were filed with the superior court as parts of exhibits G and H.
Exhibit H consisted of two documents: an e-mail from Chaker to NEC stating that he was sending a letter about the status of his student loans and a declaration by a student loan officer stating that Chaker had requested that she send him a letter on the status of his student loans. Exhibit G also consisted of two documents: an online credit application and a declaration by Chaker disputing that he had initiated the online credit application and objecting to the documents filed in exhibit H. In the declaration, Chaker stated that he never authorized NEC “to request, obtain, or use, [his] consumer report either in person, by mail, by email, or by facsimile.” He also identified specific evidentiary defects with the online credit application and with the documents in exhibit H.
The district court denied the motion to dismiss, but entered an order granting summary judgment on March 24, 2006. Exhibit C is the summary judgment order in which the district court found that NEC had a permissible purpose for requesting and obtaining Chaker’s consumer credit report, that NEC did not take adverse action against Chaker, and that Chaker lacked standing under the California statute.
The docket sheet shows that the district court granted NEC costs but denied it attorney fees, and that, on May 3, 2006, NEC appealed that denial. Subsequently, in a memorandum decision of August 4, 2008, the United States Court of Appeals for the Ninth Circuit reversed the denial of attorney fees. In its order, the federal appellate court stated that “[u]nder the Fair Credit Reporting Act, the prevailing party is allowed to recover attorney’s fees in relation to the work expended in responding to an unsuccessful pleading, motion, or other paper filed in bad faith or for purposes of harassment. See 15 U.S.C. § 1681n(c). Accordingly, we vacate the order denying attorney’s fees and remand this matter for further proceedings in accordance with section 1681n(c).” (Chaker v. Nathan Enterprises Corp. (9th Cir. 2008) 288 Fed.Appx. 402, italics omitted.)
We take judicial notice of the memorandum decision as a relevant decision of a court of the United States. (Evid. Code, §§ 451, 452 & 459.) Although the memorandum decision was not filed with the trial court, the decision was referenced in (1) NEC’s opposition to the motion to strike (anti-SLAPP), (2) the federal docket found at exhibit A to Richland’s declaration, and (3) the opening appellate brief. We also sent a letter to the parties seeking supplemental briefing on the significance, if any, of the memorandum decision on the merits of this appeal.
On remand, the district court in Chaker I awarded NEC $136,316.14 in attorney fees because NEC “provided sufficient evidence to show [that Chaker] initiated [Chaker I] in bad faith.” In the April 21, 2009 fee award order, the district court found that Chaker “acted in bad faith because he initiated the credit inquiry at issue, and then falsely claimed identity theft in order to bring this action.” The district court’s order, however, did not issue until 11 days after the superior court granted Chaker’s anti-SLAPP motion. Appellant asked the superior court to take judicial notice of the fee award order during a collateral proceeding but did not ask the superior court to reconsider its prior order granting Chaker’s anti-SLAPP motion.
2. Chaker II
Exhibits A, B, and E consist of documents relevant to Chaker II, including the docket sheet and the order of dismissal. Exhibit A, the docket sheet, shows that Chaker II was filed while Chaker I was pending. In Chaker II, Chaker sued NEC and its counsel, Richland, for filing documents containing Chaker’s confidential credit information with the district court in Chaker I.
Exhibit B is the January 25, 2006 order dismissing Chaker II on the ground that NEC’s filings were protected by the litigation privilege, Civil Code section 47. On March 13, 2006, the district court awarded costs and fees of $42,934.84 to NEC and Richland.
On September 17, 2007, Chaker wrote a letter to his counsel in which he asserted that his counsel had filed Chaker II without his authorization. A copy of the letter, which is included in exhibit E, was sent to Richland and to Steven Turner, an attorney in another case involving Chaker.
3. Evidence Concerning Malice and Ulterior Motive
The remaining exhibits -- D, I, and J -- provided the factual basis for plaintiffs’ assertion that Chaker had filed the federal lawsuits with improper intent.
Exhibit D is an e-mail that Richland received from Turner on May 31, 2006. In the e-mail, Turner forwarded a May 25, 2006 e-mail message from an unnamed sender. In that e-mail, the sender had written: “I must congradulate [sic] Midland and Mr. Turner for a phenominal [sic] defense and subsequent verdict. However, your victory dwarfs my victory since my objective was to have Midland pay out money. Mr. Turner noted it cost $25k P.I. bill, plus considering an associate, partner, for 2 weeks, + expenses... the total was $50K + -… that was more than worth turning down $500! [¶] I heard what happend [sic] to a white Jaguare [sic] and a couple of other cars at 2004 Bagley the day Ms. Richland took my deposition. She has the most beautiful family. Hopefully, each one of you will behave and not cross me so your home need not be visited in the middle of the night....”
Exhibit J is the cover page and certification for a deposition transcript which indicates that Richland took the deposition of Chaker on October 12, 2005. According to plaintiffs, exhibit J authenticates the forwarded e-mail in exhibit D as having been sent by Chaker. Plaintiffs allege that the forwarded e-mail shows that Chaker filed the two federal lawsuits with malicious intent.
Exhibit I is the March 30, 2005 vexatious litigant list maintained by the Administrative Office of the Courts. Chaker is listed as a vexatious litigant for the San Diego Superior Court. According to plaintiffs, this is circumstantial evidence that supports their claim that Chaker filed the two federal lawsuits with malicious intent and improper ulterior motive.
In his response to plaintiffs’ opposition and supporting evidence, Chaker filed evidentiary objections to certain parts of Richland’s declaration and to exhibits A, D, E, H, and I. He did not object to the documents in exhibit G, which included the online credit application.
4. Evidence Relating to the Statute of Limitations
Chaker also filed a demurrer to the complaint, in which Chaker again raised the argument that plaintiffs’ claims were barred by the statute of limitations. In a separate pleading responding to the demurrer and incorporated by reference into the opposition to the anti-SLAPP motion, plaintiffs filed several exhibits in support of their contention that their claims were not time-barred.
The first exhibit, the May 31, 2006 e-mail from attorney Turner, was filed in support of plaintiffs’ assertion that they were entitled to the benefit of the delayed discovery rule, which would result in the complaint being timely filed. Plaintiffs contended that the delayed discovery rule applied to this case, because until Richland received the May 31, 2006 e-mail and realized that it was Chaker who had slashed the tires of her car (a white Jaguar), plaintiffs did not realize that Chaker I and Chaker II had been filed with malicious intent.
Two other exhibits provided the factual basis for plaintiffs’ assertion that their complaint was timely because the statute of limitations was tolled while Chaker was absent from the State of California. The exhibits were: (1) a partial transcript of a 2005 deposition in which Chaker refused to identify his then current residence, and (2) a September 26, 2008 letter from Chaker to the California State Bar, in which he informed the State Bar that he had recently moved and requested that materials regarding the status of the investigation into his State Bar complaint against Richland be forwarded to a Las Vegas, Nevada address. According to plaintiffs, these exhibits permitted the inference that Chaker had moved to Nevada prior to February 13, 2008.
After a hearing, the superior court granted Chaker’s motion to strike the first four causes of action as to both plaintiffs. In an order dated April 10, 2009, the court concluded that those causes of action were based on protected activity, the filing of two lawsuits. The court held that plaintiffs could not show a probability of prevailing on the four causes of action. The court concluded that the causes of action arising from the filing of Chaker II were barred by the two-year statute of limitations, and that plaintiffs could not demonstrate they were entitled to the delayed discovery rule or tolling of the statute of limitations. The trial court further concluded that plaintiffs had failed to support their malicious prosecution claim based on the filing of Chaker I because they could not make a prima facie showing of facts evidencing lack of probable cause or malice by Chaker. The court sustained the demurrer to the fifth cause of action (property damage to Richland’s car) as to NEC, but granted a stay of that cause of action as to Richland pending the outcome of this appeal.
In its written order, the court also sustained all of Chaker’s evidentiary objections, although the court orally rejected Chaker’s objections to exhibit A (the federal docket for the two lawsuits) during the hearing on the anti-SLAPP motion.
Chaker served notice of entry of the order granting the motion to strike and sustaining the demurrer on May 29, 2009. Only NEC filed a notice of appeal from that order on June 1, 2009.
Chaker sought $15,123.61 in attorney fees as the prevailing defendant. NEC objected to the motion for fees and also requested that the trial court take judicial notice of the district court’s April 21, 2009 order awarding attorney fees to NEC based on Chaker’s bad faith filing of Chaker I. The trial court granted Chaker’s motion, but awarded him only $8,000 in fees. The court did not address the request for judicial notice. Subsequently, the trial court entered a minute order granting Chaker’s motion for attorney fees on August 18, 2009, but neither the trial court nor a party served notice of that order. On or about November 17, 2009, NEC (but not Richland) filed an amended notice of appeal from the fee order.
On April 2, 2010, pursuant to a joint motion, this court ordered both appeals consolidated for all purposes and deemed NEC’s already filed opening brief to be the opening brief for both appeals.
DISCUSSION
On appeal, NEC contends (1) that the trial court erred in granting Chaker’s anti-SLAPP motion, and (2) that the trial court erred in awarding Chaker attorney fees. We address each contention in turn.
1. The Anti-SLAPP Motion
“A SLAPP suit -- a strategic lawsuit against public participation -- seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted section 425.16 -- known as the anti-SLAPP statute -- to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen).)
To determine whether a lawsuit or cause of action should be disposed of as a SLAPP suit, section 425.16 establishes a two-part test. Under the first part, the party bringing the anti-SLAPP motion has the initial burden of showing that the lawsuit, or a cause of action in the lawsuit, arises from an act in furtherance of the right of free speech or petition -- i.e., that it arises from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos).) Once the defendant has met its burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the lawsuit or on the cause of action. (Ibid.) To satisfy this burden, 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) Only a cause of action that satisfies both parts 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. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
Here, the trial court concluded that NEC’s causes of action met both parts of the anti-SLAPP statute and should be stricken. An appellate court independently reviews the trial court’s order granting an anti-SLAPP motion. (Rusheen, supra, 37 Cal.4th at p. 1055.) In our evaluation of the trial court’s order, we consider the pleadings and the supporting and opposing affidavits filed by the parties on the anti-SLAPP motion. In doing so, we do not weigh credibility or determine the weight of the evidence. Rather, we accept as true the evidence favorable to the plaintiff and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) Thus, we will review de novo each of NEC’s four causes of action.
a. Malicious Prosecution
In its first cause of action, NEC sued Chaker for malicious prosecution for filing Chaker I and Chaker II.
In order to strike the malicious prosecution claim, Chaker must initially show that the claim arises from protected speech or petitioning. Under the anti-SLAPP statute, an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (§ 425.16, subd. (e).) Because Chaker’s two federal lawsuits are writings made before a judicial proceeding, his filing of those lawsuits arises out of a protected activity. (§ 425.16, subd. (e)(1).) Thus, Chaker has satisfied the first part of the anti-SLAPP statute.
On appeal, NEC summarily contends that malicious prosecution claims do not fall within the ambit of the anti-SLAPP statute because such claims are “exempt from [the] application of the litigation privilege” of Civil Code section 47. However, although the litigation privilege of Civil Code section 47 does not protect acts giving rise to malicious prosecution claims, malicious prosecution claims may still be stricken under the anti-SLAPP statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 737-741.)
Because Chaker has met his initial burden of proof, the burden shifts to NEC to show a probability of success on the merits of its malicious prosecution claim. To prevail on the malicious prosecution claim, NEC “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 v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup).) In this case, NEC contends that it has made a prima facie showing of facts that, if believed, would sustain a favorable verdict on its malicious prosecution claim with respect to both Chaker I and Chaker II. We address each lawsuit separately.
i. Chaker II
A malicious prosecution claim has a two-year limitations period. (§ 335.1; Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 555, p. 704.) The limitations period starts, or the claim accrues, on the date of entry of a judgment constituting favorable termination. (Soble v. Kallman (1976) 57 Cal.App.3d 719, 723 [“Soble’s cause of action for malicious prosecution accrued on entry of judgment of dismissal of Kallman’s action, at which time he became entitled to sue for malicious prosecution.”].) The reason is that on that date, the malicious prosecution claim is complete with all of its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 [“[A] cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’ [Citation.]”] (Fox).)
Here, the district court entered an order dismissing Chaker II on January 25, 2006. On that date, NEC received an order of favorable termination and a finding that the action lacked probable cause because of the litigation privilege. Malicious intent, if present, existed when the lawsuit was filed and when the lawsuit was not dismissed but pursued. (See Zamos, supra, 32 Cal.4th at p. 973 [“Malicious prosecution... includes continuing to prosecute a lawsuit discovered to lack probable cause.”].) Thus, the malicious prosecution claim accrued on January 25, 2006, and NEC was required to file its malicious prosecution claim within two years of that date. NEC did not file its malicious prosecution claim until February 13, 2008, which is beyond the limitations period. Nevertheless, NEC advances three reasons why its malicious prosecution claim based on Chaker II is not time-barred. We address each of those reasons in turn.
First, NEC contends that the limitations period did not begin to run until March 13, 2006, when the district court entered the order awarding NEC attorney fees. Essentially, NEC argues that favorable termination did not occur until Chaker II was finally dismissed, which was when the district court ordered the award of attorney fees. However, NEC cites no case law in support of its argument that the date of final dismissal is the operative date for the running of the statute of limitations. Rather, case law indicates that the operative date for the running of the statute of limitations in this case is January 25, 2006, because on that date, the court entered an order that unambiguously determined that NEC was not liable for the charges. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 881 [“‘A termination is favorable when it reflects “the opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of the defendant.”’ [Citation.] ‘It is not enough... merely to show that the proceeding was dismissed.’ [Citation.]”].) Thus, the fact that Chaker II was not ultimately dismissed until March 13, 2006 does not assist NEC in defeating the statute of limitations.
Second, NEC contends that it is entitled to the delayed discovery rule because it was not aware that Chaker had filed Chaker II with malicious intent until Richland received the e-mail from Turner on May 31, 2006. The delayed discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citation.]” (Fox, supra, 35 Cal.4th at p. 807.) However, we have located no published case, and NEC has cited none, that has applied the delayed discovery rule to a malicious prosecution claim. A possible reason is that malicious prosecution claims generally do not involve difficult-to-detect injuries or the breach of a fiduciary relationship, claims to which “California courts have long applied the delayed discovery rule.” (Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 43.) Here, at the time the district court issued its dismissal order in Chaker II, NEC knew it had been injured by Chaker because it was aware of the costs it had incurred for defending a lawsuit that a court had found lacked probable cause, and NEC was not in a fiduciary relationship with Chaker or Chaker’s attorneys. Under these circumstances, NEC is not entitled to the benefit of the delayed discovery rule.
Finally, NEC contends that its malicious prosecution claim with respect to Chaker II is not time-barred because the statute of limitations was tolled under section 351 while Chaker was absent from the State of California. Section 351 provides that: “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.” Although the superior court concluded that the application of section 351 was unconstitutional in this case, we need not reach the constitutional issue because NEC has not shown that Chaker was absent from California during any legally significant period of time.
NEC presented evidence that Chaker would not divulge his current residence during a deposition in 2005 and that on September 26, 2008, he had informed the State Bar that he had recently moved. NEC, however, presented no direct evidence indicating the actual time period(s) during which Chaker was absent from the state. Instead, NEC asks this court to infer that Chaker was absent from California during a legally significant time period. However, even viewing the evidence in the light most favorable to NEC, we cannot infer that Chaker was absent from the state prior to February 13, 2008, the date NEC filed the instant lawsuit. From NEC’s evidence, it is reasonable to infer that Chaker moved to Las Vegas, Nevada prior to September 26, 2008. However, his reference on that date to having “recently moved” does not raise the inference that he did so prior to February 13, 2008. Thus, NEC is not entitled to the tolling provision of section 351 because NEC has not established the necessary factual predicate for application of the statute.
In short, we reject each of NEC’s arguments that the two-year statute of limitations did not commence running on January 25, 2006, or was tolled during the period following the district court’s judgment in NEC’s favor on Chaker II. Because NEC failed to file the underlying action until February 13, 2008, its malicious prosecution claim based on the filing of Chaker II was time-barred, and the trial court properly found NEC had no probability of prevailing on that claim.
ii. Chaker I
There is no claim that NEC’s malicious prosecution claim with respect to Chaker I is time-barred. Thus, we must determine whether NEC has shown a probability of prevailing on the merits of that claim. To prevail on a malicious prosecution claim with respect to Chaker I, NEC must show that Chaker I was (1) favorably terminated, (2) filed without probable cause; and (3) initiated with malice. (Soukup, supra, 39 Cal.4th at p. 292.) In determining whether NEC has shown a probability of prevailing on the merits, we consider only evidence that would be admissible at trial. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236.) To the extent our decision is based upon evidence to which Chaker has objected, we will independently review the admissibility of that evidence in light of Chaker’s evidentiary objections. Our review of the relevant evidence persuades us that NEC has made a prima facie showing as to each of the three elements of its malicious prosecution claim based on Chaker I.
First, NEC has shown that Chaker I was favorably terminated on March 27, 2006. On that date, the district court granted summary judgment to NEC and unambiguously declared NEC not liable on the claims filed in Chaker I. (See Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 881 [favorable termination occurs on entry of an order that a cause of action lacks merit].)
Second, NEC has shown that Chaker lacked probable cause to file Chaker I. “‘A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’ [Citation.] ‘In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.’ [Citation.]” (Soukup, supra, 39 Cal.4th at p. 292.) Here, in exhibit G to NEC’s opposition to the anti-SLAPP motion, NEC has presented evidence that Chaker relied upon a key fact -- that he had not authorized NEC to obtain his credit information -- that he had no reasonable cause to believe to be true. The online credit application purportedly sent by Chaker to NEC, which was submitted as part of exhibit G, is admissible evidence establishing a prima facie showing of lack of probable cause.
The online credit application is admissible evidence because it is evidence relevant to the malicious prosecution claim. (Evid. Code, § 351 [“Except as otherwise provided by statute, all relevant evidence is admissible.”].) Moreover, Chaker has never disputed the admissibility of the credit application. In the court below, Chaker did not file any evidentiary objection to the credit application. On appeal, he acknowledges that the credit application is admissible evidence.
Nevertheless, Chaker raises three appellate arguments that, on their face, are evidentiary objections to the admissibility of the credit application. (See Evid. Code, § 403 [challenges on relevancy, personal knowledge, and authenticity are foundational or preliminary facts going to the admissibility of the evidence].) Generally, the failure to raise evidentiary objections to evidence in the trial court results in the forfeiture of the right to complain about the erroneous admission of the evidence on appeal. (Evid. Code, § 353.) However, the evidentiary objections may be interpreted not as a challenge to preliminary facts but rather, as a challenge to the fact sought to be proved by the evidence, i.e., that the evidence, even if admissible, does not show lack of probable cause. In any case, we will address each of Chaker’s three objections in turn because NEC has the burden of proof on the issue of probable cause.
First, Chaker argues that the credit application does not establish lack of probable cause because “NEC provided no declaration from any of its personnel to explain what this document purports to be, except a declaration from its counsel calling it a ‘credit application request.’” Richland’s declaration, however, provides context to the information in the document. On the document, someone has written, “Emailed Appl online Received off Internet.” The document contains information generally associated with a credit application, including a name, driver’s license number, social security number, address, employer, and monthly income. The document also contains information showing that it was prepared in association with a purchase of a vehicle. The document has a heading titled, “TYPEOF PURCHASE, ” next to which there is a “FINANCE” entry. It also contains entries next to captions titled, “ vehicleid, ” “totaldown, ” “doyouhaveatrade, ” and “howsoontopurchase.” Finally, the document included a caption labeled, “creditrating, ” next to which there is an “OK” entry and a caption titled, “authorizationtoruncredit, ” next to which is a “yes” entry. From this information, we can conclude that the document is an online credit application.
Even if the information in the document is insufficient to show that the document is an online credit application, it should not be difficult for NEC to provide a declaration from one of its employees attesting that this is a credit application that was received from the Internet. Thus, the document is admissible and we may consider it on the issue of lack of probable cause. (See Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1148 [“[E]vidence that is made inadmissible only because the plaintiff failed to satisfy a precondition to its admissibility could support a judgment for the plaintiff assuming the precondition could be satisfied. Generally, authentication problems tend to be among the easiest evidentiary dilemmas to overcome once they are called to the party’s attention.”].)
The same observation may be made of the documents contained in exhibit H. They consist of (a) an e-mail message, allegedly from Chaker to NEC, doing business as Online Motors, stating that he was sending a letter from his lender that several student loan accounts were “no longer being collected on, ” and (b) an out-of-state declaration by a student loan officer that she had complied with Chaker’s request to send him such a letter. Evidentiary objections to both documents could be easily overcome: an employee of NEC could authenticate the first document and the student loan officer could file her declaration under penalty of perjury of the laws of the State of California. (See Evid. Code, § 403; Code Civ. Pro., § 2015.5.) These documents provide additional evidence that Chaker authorized NEC to obtain his credit report.
Next, Chaker argues that “[t]he document, on its face, does not show it was a credit application or that it authorized NEC to disclose or use Chaker’s credit information.” Essentially, Chaker contends that the online credit application is irrelevant because it does not provide authorization to disclose or use the information. We disagree because the document provides that NEC had authorization to run a credit report: next to the caption titled “authorizationtoruncredit, ” there is a “yes.” The authorization to obtain a credit report necessarily includes authorization to use the report and to disclose the report during the use. Otherwise, there is no purpose to obtaining a credit report.
Finally, Chaker contends that the application does not show lack of probable cause because “Chaker denied ever making the purported application, showed that the IP address used to submit the application traces back to an Amsterdam, Netherlands location, and attested that much of the information listed on the application is false.” In addressing this contention, we note that we do not weigh credibility or determine the weight of the evidence submitted to defeat an anti-SLAPP motion. (Flatley, supra, 39 Cal.4th at p. 325.) In light of that standard of review, we conclude that the credit application contains information sufficient to indicate that Chaker filed the application.
Here, the credit application contains Chaker’s personal identifying information, such as his date of birth, driver’s license number, social security number, home address, and the fact that he is living with his parents. Chaker has never contended that these pieces of information are incorrect or false, and the information is sufficient to support a finding that Chaker filed the application. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321 [“[A] document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be [citation]. As long as the evidence would support a finding of authenticity, the writing is admissible.”].) Nevertheless, Chaker contends that the information must be discredited because (1) he claims to have been the victim of identity theft, (2) he denies having initiated the application, (3) he denies ever having been in Amsterdam, and (4) the information on his telephone numbers, employer, work address, occupation, and work history is allegedly incorrect. However, these factual contentions do not persuade us there is no probability that Chaker filed the application. Rather, these contentions, if true, go to the weight of the evidence, i.e., they permit an inference that Chaker might not have filed the application. As noted, however, we do not weigh evidence or determine credibility. (Flatley, supra, 39 Cal.4th at p. 325.)
We note that the only evidence Chaker provides to support his assertion that he was a victim of identity theft is that he is enrolled in California’s “Safe At Home” Program. However, participation in the program is not predicated on identity theft. (See Gov. Code, §§ 6206 & 6215.1 [program participants limited to “a victim of domestic violence, sexual assault, or stalking” as well as “reproductive health care services provider, employee, volunteer, or patient”].) In addition, the fact that the IP address used to file the application traces back to an Amsterdam, Netherlands location is not persuasive evidence since IP addresses may be spoofed or the information sent through an anonymous remailer. Finally, we have only Chaker’s self-serving declaration that the work information and telephone numbers are incorrect. It is also possible that Chaker inputted the wrong information on the application.
In short, we reject Chaker’s arguments that the online credit application does not show he filed Chaker I without probable cause. Rather, the application contains information from which a reasonable inference can be drawn that Chaker himself authorized NEC to obtain and use his credit information. His subsequent filing of Chaker I, alleging that NEC improperly accessed and used his credit information when Chaker knew it was he who had authorized NEC to do so, was necessarily without probable cause.
Finally, NEC has made a prima facie showing of malice because on this record, malice can be inferred from the same facts supporting a lack of probable cause. As the California Supreme Court has explained:
“‘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.)
In Soukup, the Supreme Court concluded that malice could be inferred from “the evidence that defendants lacked probable cause to initiate and maintain the underlying action against [the plaintiff]” where defendants knew they lacked any evidence connecting the plaintiff to other tortfeasors. (Id. at p. 296.) Similarly, the evidence that Chaker sued NEC for illegally obtaining and using his credit information despite knowing that he had authorized NEC to obtain and use such information supports an inference that Chaker I was filed with malice.
Thus, we conclude that the first cause of action for malicious prosecution based upon the filing of Chaker I should not be stricken because NEC has made the threshold showing necessary to defeat the anti-SLAPP motion. Next, we turn to NEC’s second cause of action.
Indeed, other submitted evidence, which we do not consider in reaching our opinion, shows that NEC has made more than a threshold showing that it would prevail on the merits. We sought supplemental briefing on the effect of the district court’s March 27, 2006 order granting summary judgment and of the federal appellate court’s August 4, 2008 memorandum decision on NEC’s prima facie case for malicious prosecution based on Chaker I. Respondent filed a response arguing that NEC could not use the favorable findings in those orders because NEC did not raise the issue of collateral estoppel in the trial court. On remand, we see no reason why NEC cannot raise the issue of collateral estoppel on the facts found by the courts in those orders, as well as the facts found by the district court in its April 21, 2009 fee award order.
b. Abuse of Process
In its second cause of action, NEC sued Chaker for abuse of process in filing Chaker II. Because the filing of a lawsuit arises out of protected activity, Chaker has satisfied the first part of the anti-SLAPP statute. (Rusheen, supra, 37 Cal.4th at p. 1056.) Thus, NEC must show there is a probability that it would prevail on its abuse of process claim or the claim will be stricken.
“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. [Citation.]” (Rusheen, supra, 37 Cal.4th at p. 1057.) However, there is no probability of prevailing on the merits where the claim is barred by the litigation privilege of Civil Code section 47.
The Supreme Court has noted that “[t]he ‘[p]leadings and process in a case are generally viewed as privileged communications.’ [Citation.]” (Rusheen, supra, 37 Cal.4th at p. 1058.) Indeed, the litigation privilege “has been applied specifically in the context of abuse of process claims alleging the filing of false or perjurious testimony or declarations. [Citations.]” (Ibid.) Thus, the Supreme Court has concluded that the litigation privilege applies to the filing of a perjured declaration in court and precludes any abuse of process claim based upon that filing. (Id. at pp. 1061-1062.)
Here, plaintiffs alleged that Chaker filed Chaker II knowing the lawsuit lacked probable cause, and that his filing of Chaker II constituted an abuse of process. However, the litigation privilege applies to the communicative act of filing Chaker II and thus precludes any abuse of process claim based upon that filing. Accordingly, NEC has no probability of prevailing on its abuse of process claim. Thus, the second cause of action for abuse of process must be stricken under the anti-SLAPP statute because that claim arises from protected activity and lacks even minimal merit. We now turn to the remaining causes of action.
c. Intentional and Negligent Infliction of Emotional Distress
In its third and fourth causes of action, NEC sued for intentional and negligent infliction of emotional distress arising from the filing of Chaker II and from the property damage to Richland’s car. Under the first part of the anti-SLAPP statute, only the filing of Chaker II is an act that arises from a protected activity. However, the trial court concluded these claims should be stricken because the core or gravamen of the claims was the filing of Chaker II. In our independent review of this issue, we conclude that we need not determine whether the trial court was correct because we may affirm the court’s order on the separate and independent ground that NEC lacks standing to bring the claims for intentional and negligent infliction of emotional distress. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1260; see also FDIC v. Hulsey (10th Cir. 1994) 22 F.3d 1472, 1489 [“Since a corporation lacks the cognizant ability to experience emotions, a corporation cannot suffer emotional distress.”].) Thus, those claims must be stricken.
2. Attorney Fees Motion
Having concluded that the superior court erred in striking the first cause of action with respect to Chaker I but was correct in striking the other causes of action, we next examine the effect of our decision on the trial court’s order awarding Chaker attorney fees as the prevailing defendant. On appeal, NEC contends that the order awarding attorney fees was untimely and included work on the demurrer to the complaint. We will address each of these arguments, but, in light of our ruling that Chaker only partially prevailed on his anti-SLAPP motion, we will remand to the trial court to reconsider its order awarding attorney fees.
“The anti-SLAPP statute provides for an award of attorney fees and costs to the prevailing defendant on a special motion to strike. (§ 425.16, subd. (c).) The defendant may recover fees and costs only for the motion to strike, not the entire litigation. [Citations.] Appellate challenges concerning the motion to strike are also subject to an award of fees and costs, which are determined by the trial court after the appeal is resolved. [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) An award of attorney fees to a defendant who prevails on an anti-SLAPP motion is reviewed for an abuse of discretion. (Id. at p. 1322.)
On July 10, 2009, following the trial court’s grant of his anti-SLAPP motion, Chaker filed a noticed motion seeking over $15,000 in attorney fees. NEC contended below and asserts on appeal that the fee application was untimely because it was filed more than 60 days after the superior court entered its order granting the anti-SLAPP motion. However, “the time limits... for filing a motion for attorney fees under section 425.16, subdivision (c) do not commence to run until entry of judgment at the conclusion of the litigation.” (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 468.) Thus, the fee application was timely because the litigation had not concluded.
In the court below, NEC also urged the trial court to take into consideration the fact that Chaker’s anti-SLAPP motion included some of the same arguments made in Chaker’s demurrer. On appeal, NEC asserts that the trial court failed to do so. We disagree and conclude that the superior court’s award of $8,000 instead of the requested $15,000 indicates the court did take the duplicative work into consideration. However, we must remand the case for reconsideration of the fee award because our ruling on the case has changed the status of Chaker from a prevailing defendant to a partially prevailing defendant facing a malicious prosecution claim.
“[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Because we are partially reversing the trial court’s order granting the anti-SLAPP motion, we will remand the case to the superior court to reconsider whether Chaker is a “prevailing party” under the anti-SLAPP motion and to award reasonable attorney fees and costs, if upon reconsideration, it determines that Chaker is the prevailing party.
DISPOSITION
The superior court’s order granting respondent’s anti-SLAPP motion is affirmed in part and reversed in part. The case is remanded for further proceedings on the malicious prosecution claim based on Chaker I. The award of attorney fees is reversed. On remand, the superior court shall determine whether Chaker is the prevailing party and, if the court so determines, shall award reasonable attorney fees and costs. Each party to bear its own costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.