1 LINDA ROSE FESSLER, ESQ.

SBN 049417
LAW OFFICE OF LINDA ROSE FESSLER
2 234 S Figueroa St, Ste 541
LOS ANGELES CA 90012
3 (213) 617-8684; Fax (866) 492-1546
Email: LindaFessler@LindaFessler.com
4
Attorneys for Defendants
5 MARY BLACKSHEAR, LINDA ROSE FESSLER, ESQ.,
THE LAW OFFICES OF LINDA ROSE FESSLER
6

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

8 COUNTY OF LOS ANGELES

9 CENTRAL DISTRICT

10

11 ARTHUR J. BREWSTER, Case No.: BC420853

12 Plaintiff, [Assigned for all purposes to

(unassigned), Dept. 40]
13 v.
LAW OFFICES OF J.KIM, APLC

Beverly Hills CA 90211

NOTICE OF MOTION AND SPECIAL

161 S. Doheny Dr.

14 MARY BLACKSHEAR, an individual; MOTION OF DEFENDANTS MARY

LINDA ROSE FESSLER, ESQ; an BLACKSHEAR, LINDA ROSE
15 individual; THE LAW OFFICES OF FESSLER & THE LAW OFFICES OF
LINDA ROSE FESSLER; a business LINDA ROSE FESSLER TO STRIKE
16 organization form unknown and PLAINTIFF’S CAUSE OF ACTION
DOES 1-10, inclusive, FOR MALICIOUS PROSECUTION
17 PURSUANT TO ANTI-SLAPP
Defendants. STATUTE, CODE OF CIVIL
18 PROCEDURE §425.16; MEMORAN-
DUM OF POINTS AND AUTHORI-
19 TIES; AND REQUEST FOR ATTOR-
NEY FEES AND COSTS
20
[Concurrently filed with the
21 supporting declarations of Mary
Blackshear, Linda Rose Fessler &
22 Robert
Williscroft; Req. for Jud. Not.;
23 Notice of Lodging]

24 Date: November 9, 2009

Time: 8:45 am
25 Dept: 40

26

27 TO PLAINTIFF AND HIS COUNSEL OF RECORD:

28

1
NOTICE OF MOTION AND SPECIAL MOTION OF DEFENDANTS MARY BLACKSHEAR, LINDA ROSE FESSLER & THE LAW
OFFICES OF LINDA ROSE FESSLER TO STRIKE PLAINTIFF’S CAUSE OF ACTION FOR MALICIOUS PROSECUTION
PURSUANT TO ANTI-SLAPP STATUTE, CODE OF CIVIL PROCEDURE §425.16
 1
PLEASE TAKE NOTICE THAT ON November 9, 2009, at 8:45 am, or as
2
soon thereafter as the court may designate, in Dept. 40, Superior Court of
3
California, Los Angeles, 111 N Hill St, Los Angeles, California, 90012,
4
DEFENDANTS MARY BLACKSHEAR, LINDA ROSE FESSLER, and THE LAW
5
OFFICES OF LINDA ROSE FESSLER1 will and hereby do move to strike
6
plaintiffs’ cause of action for Malicious Prosecution. This special motion to
7
strike is brought on the grounds that (1) plaintiff’s cause of action is subject
8
to the California anti-SLAPP statute, California Code of Civil Procedure
9
§425.16; (2) Mary Blackshear relied on the advice of counsel, which
10
establishes probable cause as a matter of law and is an absolute defense, (3)
11
certain non-final rulings on the merits constituted probable cause as a
12
matter of law and (4) the overwhelming evidence irrefutably establishes
13
LAW OFFICES OF J.KIM, APLC

probable cause.
Beverly Hills CA 90211
161 S. Doheny Dr.

14
This motion is based on this notice of motion and motion, the following
15
Memorandum of Points and Authorities, the concurrently filed declarations of
16
Mary Blackshear and Linda Rose Fessler, Esq., the Request for Judicial Notice,
17
the pleadings on file in this matter, the reply memorandum Blackshear and
18
Fessler intend to file, oral argument, and on any further necessary basis that
19
the Court might allow.
20
DATED: September 29, 2009 LAW OFFICES OF LINDA ROSE FESSLER
21

22
Linda Rose Fessler
23 Attorney for MARY BLACKSHEAR, LINDA
ROSE FESSLER, and THE LAW OFFICES OF
24 LINDA ROSE FESSLER

25

26

27 1
Defendants insist there is no entity known as THE LAW OFFICES OF LINDA ROSE FESSLER,
and there never has been, and reserve the right to establish such fact by judicial resolution
28 at the appropriate time should this matter proceed beyond the hearing of the within anti-
SLAPP motion.
2
NOTICE OF MOTION AND SPECIAL MOTION OF DEFENDANTS MARY BLACKSHEAR, LINDA ROSE FESSLER & THE LAW
OFFICES OF LINDA ROSE FESSLER TO STRIKE PLAINTIFF’S CAUSE OF ACTION FOR MALICIOUS PROSECUTION
PURSUANT TO ANTI-SLAPP STATUTE, CODE OF CIVIL PROCEDURE §425.16
 1 MEMORANDUM OF POINTS AND AUTHORITIES

2
Introduction
3
Plaintiffs’ malicious prosecution cause of action should be stricken
4
under California’s anti-SLAPP statute, Code of Civil Procedure §425.16 for two
5
reasons. First, a malicious prosecution based on conduct arising from or in
6
connection with the alleged improper filing of lawsuit is subject to anti-SLAPP
7
treatment, to wit, being stricken as a strategic lawsuit against public
8
participation. Second, malicious prosecution plaintiffs subject to anti-SLAPP
9
treatment must show a likelihood of success on the merits of their claim,
10
with admissible evidence, which the within plaintiff will not be able to do.
11
Specifically, plaintiff’s malicious prosecution claim arises out of a civil
12
proceeding (LASC Case No. BC406469) between defendant Mary Blackshear
13
LAW OFFICES OF J.KIM, APLC

(hereinafter “Blackshear”) and Glen Malone (hereinafter “Malone”), plaintiff

Beverly Hills CA 90211
161 S. Doheny Dr.

14
Art Brewster (hereinafter “Brewster”), Rapid Remodel, Inc. (hereinafter
15
“Rapid Remodel”), and Fast Pace Funding Inc. (hereinafter “Fast Pace”). In
16
her complaint filed on January 28, 2009, Blackshear alleged that Malone and
17
Brewster had defrauded her of thousands of dollars when they entered into a
18
home remodeling contract with her, received the monies, and then did not
19
perform the terms of the contract. The contract was on Rapid Remodel
20
Letterhead, listing Malone as the owner, and was signed by Brewster, listing
21
his State Contractors’ License number. Linda Rose Fessler (hereinafter
22
“Fessler”) was Blackshear’s attorney who represented her in litigating her
23
claims. (See Decl. of Fessler, filled concurrently herewith, ¶¶6 & 7.)
24
Since plaintiff’s malicious prosecution action is based upon conduct
25
arising from or in connection with Blackshear’s alleged improper filing of her
26
action against Brewster, the burden will shift to him under the statute to
27
show a likelihood of success that he can prove, with admissible evidence,
28
that Blackshear brought her claims against him with malice and without

3
MEMORANDUM OF POINTS AND AUTHORITIES
 1
probable cause. Plaintiff cannot meet this burden because there was nothing
2
improper about Blackshear’s action.
3
The hallmark of a maliciously prosecuted claim is the lack of probable
4
cause. Whether Blackshear’s claims were maliciously prosecuted
5
fundamentally turns on one question: was the evidence ever so lacking that
6
Blackshear did not have cause or grounds to show that Brewster was the
7
individual who signed the contract between herself and Rapid Remodel, and
8
that Brewster’s State Contractors’ License number appeared on that
9
contract? The court answered this question on three separate occasions with
10
a resounding NO, denying Brewster’s Motion to Sever and his Motion for
11
Judgment on the Pleadings on the basis that the evidence was sufficient to
12
go to trial, and granting Blackshear’s Motion to Tax Costs as against
13
LAW OFFICES OF J.KIM, APLC

Brewster, eliminating the entirety of Brewster’s Memorandum of costs. (Decl.

Beverly Hills CA 90211
161 S. Doheny Dr.

14
of Fessler, ¶¶14, 15 & 19.)
15
At the beginning of the civil proceedings, Brewster (acting in pro per)
16
filed and served his form answer on February 18, 2009, in which he stated
17
only that he “…denies each and every allegation…” and that he “…has no
18
knowledge relating to any allegations directed to any other defendant.”
19
(Decl. of Fessler, ¶8.) On March 9, 2009, Brewster filed and served his
20
amended answer as a written pleading, in which he responded in greater
21
detail, specifically denying each of Blackshear’s allegations, offering as an
22
affirmative defense that there existed no contract between Blackshear and
23
Brewster. He offered no explanation, and never mentioned “theft of
24
identity,” which forms the backbone of the within malicious prosecution
25
claim, did not state that he was not the person identified in Blackshear’s
26
claims, nor offered any proof at all that there was a falsification of his
27
information on the contract. Had Brewster done this at the beginning,
28
proffering convincing proof that he was not the individual identified on the

4
MEMORANDUM OF POINTS AND AUTHORITIES
 1
contract, Blackshear’s claims against him would have ended then and there.
2
(Decl. of Fessler, ¶9.)
3
During the middle of the civil action, the discovery phase, Blackshear
4
responded to admissions propounded by Brewster (in pro per), and
5
propounded admissions on Brewster. Brewster’s answers were generally
6
inadequate, and required repeated meet and confer contacts between
7
Fessler and Brewster to clarify his in pro per responses. Again, Brewster did
8
not inform Blackshear that he was not the individual on the contract, but
9
instead simply denied that he had executed the contract or met Blackshear.
10
(Decl. of Fessler, ¶10.)
11
On or about April 28, 2009, Brewster (in pro per) filed and served a
12
Motion to Sever, requesting that his part of Blackshear’s complaint be
13
LAW OFFICES OF J.KIM, APLC

severed into a separate action. In his declaration included with the motion,
Beverly Hills CA 90211
161 S. Doheny Dr.

14
Brewster claimed that he was investigated by the State Contractors’ Board
15
on a complaint filed by Blackshear, and that they declined to take action
16
against him, instead going after Malone. He offered no evidence of this, nor
17
did he state in any way that there was any kind of identity theft involved. He
18
only contended that he did not sign the contract, but admitted that his
19
name, signature, and State Contractors’ License number appeared on the
20
contract. Blackshear opposed the Motion, arguing that the evidence
21
supporting including Brewster in her complaint was overwhelming. The court
22
denied Brewster’s motion on May 29, 2009, agreeing that the evidence was
23
sufficiently convincing to keep the complaint in its original form. (Decl. of
24
Fessler, ¶¶11 & 12.)
25
Brewster (while still in pro per)propounded other discovery on
26
Blackshear, which Blackshear was unable to respond to completely because
27
of the manner in which Brewster propounded his questions. (Decl. of Fessler,
28
¶13.) Brewster filed and served a Motion to Compel on or about June 16,

5
MEMORANDUM OF POINTS AND AUTHORITIES
 1
2009. Blackshear opposed the Motion, arguing that it was filed untimely, and
2
that Brewster’s unfamiliarity with discovery rules made responding to his
3
request virtually impossible. The court agreed with Blackshear, and denied
4
Brewster’s Motion to Compel on July 13, 2009. (Decl. of Fessler, ¶14.)
5
On or about June 29, 2009, Brewster (while still in pro per) filed and
6
served a Motion for Judgment on the Pleadings, which the court denied on
7
July 13, 2009. (Decl. of Fessler, ¶15.)
8
At the end, Brewster refused to participate with the attorneys for
9
Blackshear and Malone in preparing for trial. He continued to go his own
10
way, submitting documents that were not in agreement with those submitted
11
by the other attorneys, and generally confusing the trial preparation process.
12
Finally, shortly before trial, Brewster obtained counsel, and appeared with
13
LAW OFFICES OF J.KIM, APLC

counsel on the day of trial. (Decl. of Fessler, ¶16.)

Beverly Hills CA 90211
161 S. Doheny Dr.

14
On the day of trial, shortly before trial began, all parties agreed to
15
settle. Malone agreed to pay Blackshear the sum of $20,000 in three
16
installments, and Blackshear agreed to dismiss Brewster without prejudice,
17
because she was to receive full repayment from Malone. (Decl. of Fessler,
18
¶17.)
19
Despite the dismissal without prejudice, on or about August 11, 2009,
20
Brewster filed a Memorandum of Costs. Blackshear filed a Motion to Tax on
21
August 18, 2009, with the intent of eliminating any fees to Brewster. The
22
motion was heard on September 21, 2009, where it was granted in its
23
entirety. (Decl. of Fessler, ¶¶18 & 19.) This action by the court was a further
24
acknowledgment that Blackshear’s action had probable cause.
25
In short, the court findings on three separate occasions show that
26
probable cause existed at all times throughout the civil action. By ignoring
27
this fact, it is the plaintiff who is guilty of malicious prosecution.
28 a. Legal Standard

6
MEMORANDUM OF POINTS AND AUTHORITIES
 1
Recognizing the danger that suits such as this discourage zealous
2
advocacy and chill the First Amendment right of petition, the California
3
Legislature enacted the anti-SLAPP statute to protect defendants by
4
providing a mechanism to determine at an early stage whether lawsuits
5
impinging on the right of petition have merit. See CCP § 425.16(a); Seelig v.
6
Infinity Broadcasting Corp., (2002) 97 Cal. App. 4th 798, 806. As part of this
7
legislative mandate, courts must construe the anti-SLAPP statute broadly.
8
CCP §425.16(a).
9
Courts employ a two-part test when applying the anti-SLAPP statute.
10
First, the defendant must make a threshold showing that the
11
challenged cause of action arises from protected activity. [CCP §425.16(b)
12
(1)]. Protected activity includes causes of action “arising from any act of that
13
LAW OFFICES OF J.KIM, APLC

person in furtherance of the person’s right of petition or free speech...in

Beverly Hills CA 90211
161 S. Doheny Dr.

14
connection with a public issue.” [Id].
15
Second, if the cause of action arises from protected activity, the
16
burden shifts to the plaintiff to establish “a probability that the plaintiff will
17
prevail on the claim.” [Id]. In meeting this burden, the plaintiff must
18
demonstrate that the cause of action is both legally sufficient and supported
19
by a sufficient prima facie showing of the facts to sustain a favorable
20
judgment if the evidence submitted by the plaintiff is credited. [Matson v.
21
Dvorak, (1995) 40 Cal. App. 4th 539, 541; see also Seelig, 97 Cal. App. 4th at
22
807]. Thus, the Complainant must proffer admissible evidence establishing
23
all essential elements of each claim pled in its Complaint, see Selig, 97 Cal.
24
App. 4th at 809-12, and also negating any “defenses” to liability on its
25
claims, see Church of Scientology v. Wollersheim, (1996) 42 Cal. App. 4th
26
628, 644. However, evidence excludable for lacking foundation may be used
27
if it is probable that proper foundation may be established at trial. [Fashion
28
21 v. Coalition for Humane Immigrant Rights of L.A., 117 CA4th 1138, 1148

7
MEMORANDUM OF POINTS AND AUTHORITIES
 1
(2004)] Meanwhile, a defendant’s evidence is considered to determine
2
whether it defeats plaintiff’s claims as a matter of law, e.g., by establishing a
3
defense or the absence of a necessary element. [1-800 Contacts, Inc. v.
4
Steinberg (2003) 107 CA4th 568, 585].
5
Further, there is no leave to amend while an anti-SLAPP motion is
6
pending. [Roberts v. Los Angeles Co. Bar Assn., 105 Cal.App.4th 604, 612-13.
7
(2003).] Also, all discovery is stayed. [CCP Sec. 425.16] And, a plaintiff
8
cannot withdraw or dismiss the complaint as a means to avoid SLAPP fees
9
once the motion has been filed. [Liu v. Moore, 69 Cal.App.4th 745, 749-52
10
(1999).]
11
After meeting their burden under the first prong, defendants’ evidence
12
will show that plaintiff’s cause of action is legally barred because (i)
13
LAW OFFICES OF J.KIM, APLC

Blackshear relied on the advice of counsel, which establishes probable cause

Beverly Hills CA 90211
161 S. Doheny Dr.

14
as a matter of law and is an absolute defense, (ii) certain non-final rulings on
15
the merits constituted probable cause as a matter of law, and (iii) the
16
overwhelming evidence irrefutably establishes probable cause.
17

18 Argument
I. PLAINTIFF’S CAUSE OF ACTION FOR MALICIOUS PROSECUTION
19 ARISES IN CONNECTION WITH THE PROTECTED “RIGHT OF
PETITION” AND IS WITHIN THE SCOPE AND PROTECTIONS OF
20 THE ANTI-SLAPP STATUTE

21
The anti-SLAPP statute treats litigation filings as petitioning activity
22
because it protects “any written or oral statement or writing made before a...
23
judicial proceeding.” [CCP §425.16(e)(1)]. Thus, the filing of a claim for relief
24
is protected by the anti-SLAPP statute. [Navellier v. Sletten, (2002) 29 Cal.
25
4th 82,90.] Moreover, the right of petition encompasses both direct
26
petitioning activity and claims “arising from” conduct “in connection with”
27
petitioning activity. [CCP §§425.16 (a), (e)(1), (c)(2)]. As a result, most
28
affirmative litigation-related acts – including conduct related to contemplated

8
MEMORANDUM OF POINTS AND AUTHORITIES
 1
or proposed litigation – is also protected by the anti-SLAPP statute because it
2
is “in connection with” petitioning activity2.
3
In discussing the “arising from” prong of an anti-SLAPP motion, the
4
California Supreme Court noted, in pertinent part:
5 …By definition, a malicious prosecution suit alleges that the
defendant committed a tort by filing a lawsuit. Accordingly, every
6 Court of Appeal that has addressed the question has concluded
that malicious prosecution causes of action fall within the
7 purview of the anti-SLAPP statute. (citations omitted) [Jarrow
Formulas, Inc. v. LaMarche, 31 Cal.4th 728, 74 P.3d 737, 3
8 Cal.Rptr.3d 636 (Cal. 08/18/2003) at [32]].

10 Thus, plaintiff’s sole cause of action, simply by virtue of being one for

11 malicious prosecution, is subject to the anti-SLAPP statute. With defendants

12 having met their burden under the first prong of the anti-SLAPP statute, the

13 burden shifts to plaintiff to establish a probability of prevailing. The following

LAW OFFICES OF J.KIM, APLC

Beverly Hills CA 90211

161 S. Doheny Dr.

14 defenses, established as a matter of law, show that plaintiff will not be able

15 to do that and his action must accordingly be stricken.

16
II. BLACKSHEAR MUST BE DISMISSED FROM PLAINTIFF’S ACTION
17 BECAUSE SHE RELIED ON THE ADVICE OF COUNSEL WHICH
ESTABLISHES PROBABLE CAUSE AS A MATTER OF LAW.
18

19 The advice of counsel defense requires that the defendant prove: (i) she

20 made a full and fair disclosure, to her attorney, of all material facts that she

21 knew or should have known, (ii) she relied upon her attorney’s advice in

22 commencing the action complained of, and (iii) her reliance was in good

23 faith. [see Baker v. Gawthorne (1947) 82 Cal.App.496, HN 2.; Hudson v.

24 Zumwalt 64 (1944) Cal.App.2d 866, HN. 10.]

25 As set forth in the respective declarations of Blackshear and Fessler

26 concurrently filed herewith, Blackshear disclosed everything she knew about

27 2
see e.g., Weil & Brown, CAL. PRACTIVE GUIDE: CIVIL PROCEDURE BEFORE TRIAL (The
Rutter Group 2006) at §§ 7:221.6, 7:221.26, pp. 7-79, 7-82 (citations omitted) (“An
28 attorney’s litigation activities on behalf of a client who breached fiduciary duties to other
clients may be subject to an anti-SLAPP motion.”).

9
MEMORANDUM OF POINTS AND AUTHORITIES
 1
her history with Brewster and Malone. Blackshear had initially contracted
2
with a Greg Johnson to accomplish the work, but Johnson had defrauded her
3
of her money and not accomplished the work. Blackshear has received a civil
4
judgment against Johnson, and Johnson is awaiting a criminal trial for his
5
actions. (See Decl. of Blackshear, filled concurrently herewith, ¶2.)
6
Following her experience with Johnson, Blackshear contacted Malone, who
7
inspected the site, and quoted her a reasonable amount for materials and
8
labor to accomplish her remodeling requirements. He presented her with a
9
contract on Rapid Remodel letterhead which she signed. Shortly thereafter
10
Blackshear received an executed copy of the contract with Brewster’s name,
11
signature, and State Contractors’ License number. Although she did not meet
12
Brewster personally, she had no reason to believe that he did not work with
13
LAW OFFICES OF J.KIM, APLC

Malone, and that his presence on the contract was legitimate. (Decl. of
Beverly Hills CA 90211
161 S. Doheny Dr.

14
Blackshear, ¶¶3 & 4.)
15
Blackshear thereafter relied upon the advice of Fessler to commence the civil
16
action against plaintiff and the other defendants in that action, and there is
17
nothing to show that she did so in bad faith. (Decl. of Blackshear, ¶¶8 & 9.)
18
As Fessler testifies, it would have been malpractice for her to not have
19
sought plaintiff’s inclusion as a defendant in light Blackshear’s disclosures
20
and the supporting evidence. (Decl. of Fessler, ¶7.) Consequently,
21
Blackshear must be dismissed.
22

23 III. PLAINTIFFS’ SOLE CAUSE OF ACTION FOR MALICIOUS

PROSECUTION MUST BE STRICKEN BECAUSE CERTAIN NON-
24 FINAL RULINGS ON THE MERITS, BOTH ON THEIR OWN AND
CERTAINLY IN THE COLLECTIVE, CONSTITUTED PROBABLE
25 CAUSE AS A MATTER OF LAW.

26 “… certain nonfinal rulings made on the merits may serve as the

basis for concluding that there was probable cause for
27 prosecuting the underlying case on which a subsequent
malicious prosecution action is based. (Citation).” [Paiva v.
28 Nichols, 168 Cal.App.4th 1007, 1020 (2008)] The procedural
circumstances are varied under which a prior ruling will be

10
MEMORANDUM OF POINTS AND AUTHORITIES
 1 deemed to show probable cause. [Id.] In an underlying action
charged with being maliciously prosecuted, the granting of a
2 preliminary injunction in favor of the malicious prosecution
defendant (as the then plaintiff) establishes probable cause. [Id.]
3 So too will the denial of a motion for nonsuit and a subsequent
jury verdict made in favor of a malicious prosecution defendant
4 even if later reversed by the trial or appellate court. [Id. at 1020-
1021] Likewise, the denial of a defense summary judgment
5 motion in an underlying action establishes probable cause
barring a later malicious prosecution suit. [Id.] This principle is
6 based upon the notion that claims that succeed at a pre-
trial/interim hearing on the merits, even if subsequently reversed
7 by the trial or appellate court, are not so lacking in potential
merit that a reasonable attorney or litigant would necessarily
8 have recognized their frivolousness. [Id.]

9
Here, there is no plausible way to objectively find that the claims
10
brought against plaintiff lacked potential merit and were not arguably
11
tenable. As set forth below, the findings of the court on three separate
12
occasions (of contested matters on the merits) confirm that probable cause
13
LAW OFFICES OF J.KIM, APLC

existed at all times.

Beverly Hills CA 90211
161 S. Doheny Dr.

14
On or about April 28, 2009, Brewster filed and served a Motion to
15
Sever, requesting that his part of Blackshear’s complaint be severed into a
16
separate action. In his declaration included with the motion, Brewster
17
claimed that he was investigated by the State Contractors’ Board on a
18
complaint filed by Blackshear, and that they declined to take action against
19
him, instead going after Malone. He offered no evidence of this, nor did he
20
state in any way that there was any kind of identity theft involved. He only
21
contended that he did not sign the contract, but admitted that his name,
22
signature, and State Contractors’ License number appeared on the contract.
23
Blackshear opposed the Motion, arguing that the evidence supporting
24
including Brewster in her complaint was overwhelming. (Decl. of Fessler,
25
¶11.) The court denied Brewster’s motion on May 29, 2009, agreeing that
26
the evidence was sufficiently convincing to keep the complaint in its original
27
form. (Decl. of Fessler, ¶12.) In accordance with Paiva, Blackshear’s civil
28
action against Brewster had probable cause on this ruling alone.

11
MEMORANDUM OF POINTS AND AUTHORITIES
 1
On or about June 29, 2009, Brewster filed and served a Motion for
2
Judgment on the Pleadings, which the court denied on July 13, 2009. (Decl.
3
of Fessler, ¶15.) denial, which had the effect of causing the matter to go to
4
trial, demonstrated that Blackshear’s civil action against Brewster had
5
probable cause.
6
On the day of trial, shortly before trial began, all parties agreed to
7
settle. Malone agreed to pay Blackshear the sum of $20,000 in three
8
installments, and Blackshear agreed to dismiss Brewster without prejudice,
9
because she was to receive full repayment from Malone. Despite the
10
dismissal without prejudice, on or about August 11, 2009, Brewster filed a
11
Memorandum of Costs. Blackshear filed a Motion to Tax on August 18, 2009,
12
with the intent of eliminating any fees to Brewster. The motion was heard on
13
LAW OFFICES OF J.KIM, APLC

September 21, 2009, where it was granted in its entirety, in effect,

Beverly Hills CA 90211
161 S. Doheny Dr.

14
acknowledging that there was no merit to Brewster’s claim for
15
reimbursement on his Memorandum of Costs, and reinforcing Blackshear’s
16
probable cause contention. (Decl. of Fessler, ¶¶17, 18 & 19.)
17
In accordance with Paiva, this action by the court was a further
18
acknowledgment that Blackshear’s action had probable cause.
19
The defendants implore this Court not to ignore these three findings
20
which establish that Blackshear was never without probable cause.
21
IV. PLAINTIFFS’ SOLE CAUSE OF ACTION FOR MALICIOUS
22 PROSECUTION MUST BE STRICKEN BECAUSE THE
OVERWHELMING EVIDENCE IRREFUTABLY ESTABLISHES THAT
23 BLACKSHEAR’S CLAIMS WERE BASED UPON PROBABLE CAUSE

24
Even if, arguendo, the non-prior rulings did not conclusively establish
25
probable cause as a matter of law, which they do, the evidence itself
26
patently does. Probable cause for prosecuting a case on which a subsequent
27
malicious prosecution action is based does not depend upon it being
28
meritorious, but upon it being arguably tenable, to wit, not so completely

12
MEMORANDUM OF POINTS AND AUTHORITIES
 1
lacking in apparent merit that no reasonable attorney would have thought
2
the claim tenable. [Paiva at 1019.] In fact, the standard for probable cause is
3
so low that “[c]ounsel and their clients have a right to present issues that are
4
arguably correct, even if it is extremely unlikely that they will win.” [Id.]
5
Here, the following images of key documentary evidence shows that the
6
foundation to Blackshear’s claims was beyond tenable, to wit, showed that (i)
7
Brewster’s name appeared on the contract, (ii) Brewster’s signature
8
appeared on the contract, (iii) Brewster’s State Contractors’ License number
9
appeared on the contract, and (iv) Brewster apparently endorsed and
10
deposited checks paid to Rapid Remodel by Blackshear:
11 1. Executed contract between Blackshear and Malone/Brewster/Rapid
Remodel, Inc.
12

13
LAW OFFICES OF J.KIM, APLC

Beverly Hills CA 90211

161 S. Doheny Dr.

14

15

16

17

18
Executed contract
19 [Exhibit B – Decl. of Blackshear]
20

21

22

23

24

25

26
This is the contract executed by Blackshear. It is on the letterhead of Rapid
27
Remodel, and contains Brewster’s name, signature, and State Contractors’
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MEMORANDUM OF POINTS AND AUTHORITIES
 1
License number. [Decl. of Fessler, ¶5]
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10 2. Checks paid by Blackshear on contract
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LAW OFFICES OF J.KIM, APLC

Beverly Hills CA 90211

161 S. Doheny Dr.

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20 Deposited check for $8,980.00 Deposited check for $481.32

(arguably endorsed by Brewster) (arguably endorsed by Brewster)
21 [Exhibit D – Decl. of Blackshear] [Exhibit D – Decl/ of Blackshear]

22
These two checks were unquestionably deposited into an account controlled
23
by one or more of the defendants in the underlying case. Brewster’s
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endorsing signature arguable appears on the back of each check [Decl. of
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Fessler, ¶5.]
26
The foregoing items validate Blackshear’s claims. They are the evidentiary
27
matters to which the court referred in its decision to deny Brewster’s Motions
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MEMORANDUM OF POINTS AND AUTHORITIES
 1
to Sever and for Judgment on the Pleadings, and upon which Blackshear
2
relied in her Motion to Tax. Brewster had ample opportunity to invalidate
3
Blackshear’s claims before trial by working with Blackshear to demonstrate
4
that her evidence contained forgeries perpetrated by Malone. He did not do
5
this. Brewster also had the opportunity to present evidence during trial to
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invalidate Blackshear’s claims, but the evidence he proposed to present
7
during trial does not appear sufficient to do this. The point here is that
8
whether or not Brewster actually signed the contract and the checks,
9
Blackshear had probable cause by any measure to prosecute her claims.
10
[Decl. of Fessler, ¶¶9 – 11.]
11
Probable cause does not mean legal cause or having to prevail. The
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overwhelming evidence shows that Blackshear’s beliefs were, at a minimum,
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LAW OFFICES OF J.KIM, APLC

arguably tenable. Plaintiff’s action must be stricken.

Beverly Hills CA 90211
161 S. Doheny Dr.

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II. AN AWARD OF ATTORNEYS FEES AND COSTS FROM PLAINTIFFS
15 IS MANDATORY.

16
CCP §425.16(c) states in pertinent part: “…a prevailing defendant on a
17
special motion to strike shall be entitled to recover his or her attorney’s fees
18
and costs.” The California Supreme Court analyzed CCP §425.16(c) at length
19
in Ketchum v. Moses (2001) 24 Cal.4th 1122. It stated in pertinent part at
20
[43] that
21 The [fee] adjustment approach…which is permitted under Code
of Civil Procedure section 425.16, allows a court awarding
22 attorney fees to include a fee enhancement for the purpose, e.g.,
of compensating the attorney who agreed to undertake such
23 representation at the risk of nonpayment or delayed payment, in
an amount approaching the market rate for comparable legal
24 services. Ketchum v. Moses (2001) 24 Cal.4th 1122 at [43]

25
The Supreme Court further stated in pertinent part (Id at [52]) that
26 The ability to recover fees for representing a client under the
anti-SLAPP provisions is contingent on prevailing on the special
27 motion to strike and on post motion disputes whose resolution
may be complex and time consuming. We do not suggest that
28 contingent risk or other fee enhancements are required in every
SLAPP case. But in the absence of any indication by the

15
MEMORANDUM OF POINTS AND AUTHORITIES
 1 Legislature of the intent to specially limit attorney fees in anti-
SLAPP actions, we decline to impose a per se rule against such
2 fee enhancements.
Ketchum v. Moses (2001) 24 Cal.4th 1122 at [52]
3

4 Defendant Blackshear retained Linda Rose Fessler, Esq., to represent her in

5 this matter. She agreed to pay Fessler the enhanced fee of $500/hr on a

6 contingency basis for legal services rendered in connection with this motion.

7 As set forth in the declaration of Linda Rose Fessler, to date, Blackshear has

8 incurred total fees of $4,000.00, and costs of $2,894.55, for a total sum of

9 fees and costs of $6,894.55, and anticipates $1,000 additional fees for the

10 associated hearing. [Decl. of Fessler, ¶3.]

11 Defendant Linda Rose Fessler represented herself in this matter, and as such

12 cannot charge herself legal fees. Fessler did, however, retain the services of

13 paralegal Robert Williscroft (hereinafter “Williscroft”), who has had extensive

LAW OFFICES OF J.KIM, APLC

Beverly Hills CA 90211

161 S. Doheny Dr.

14 anti-SLAPP experience. She agreed to pay Williscroft $200/hr for his

15 paralegal services rendered in connection with this motion. As set forth in

16 the declarations of Fessler and Williscroft, to date, Fessler has incurred total

17 paralegal costs of $2,400.00, which is incorporated into the Blackshear

18 billing (see previous paragraph). [Decl. of Fessler, ¶4; Decl. of Williscroft, ¶2 ]

19 The total fees and costs incurred by all defendants to date is $6,894.55 Said

20 defendants respectfully request that an award of the fees and costs they

21 have incurred to date and will incur on this matter be issued against plaintiff.

22

23 III. CONCLUSION

24 In accordance with the foregoing, it is respectfully requested that this

25 court strike and dismiss plaintiff’s sole cause of action for malicious

26 prosecution. At a minimum, Blackshear must be dismissed based upon her

27 reliance on the advice of counsel. And, pursuant to CCP §425.16(c) and

28 Ketchum v. Moses, defendants respectfully request an award of the

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MEMORANDUM OF POINTS AND AUTHORITIES
 1
“mandatory” attorney fees and costs incurred in connection with this motion
2
as set forth above.
3
DATED: September 29, 2009 LAW OFFICES OF LINDA ROSE FESSLER
4

5
Linda Rose Fessler
6 Attorney for MARY BLACKSHEAR, LINDA
ROSE FESSLER, and THE LAW OFFICES OF
7 LINDA ROSE FESSLER

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Beverly Hills CA 90211

161 S. Doheny Dr.

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MEMORANDUM OF POINTS AND AUTHORITIES
 1 1PROOF OF SERVICE

2 1I am employed in the county of Los Angeles, State of California. I am

over the age of 18, not a party to the within action, and my business is 234 S
3 Figueroa St, Ste 541, Los Angeles, CA 90012. 1On 10/5/2009, I served the
foregoing documents, described as follows:
4 NOTICE OF MOTION AND SPECIAL MOTION OF DEFENDANTS MARY
BLACKSHEAR, LINDA ROSE FESSLER & THE LAW OFFICES OF LINDA
5 ROSE FESSLER TO STRIKE PLAINTIFF’S CAUSE OF ACTION FOR
MALICIOUS PROSECUTION PURSUANT TO ANTI-SLAPP STATUTE,
6 CODE OF CIVIL PROCEDURE §425.16
7 1on all interested parties as indicated in the following:

8 Douglas J. Pettibone, Esq Email: pettibonelaw@hotmail.com

17848 Sky Park Cir Ste C
9 Irvine CA 92614-6135
10  PERSONAL I personally delivered  a true copy  the original of the
DELIVERY foregoing document(s) to the above address.
11
 MAIL I placed  a true copy  the original of the foregoing
12 document(s) enclosed in a sealed envelope addressed as
indicated, and deposited such envelope in the mail at Los
13 Angeles, California. The envelope was mailed with postage
LAW OFFICES OF J.KIM, APLC

Beverly Hills CA 90211

thereon fully prepaid. I am readily familiar with the firm’s

161 S. Doheny Dr.

14 business practice for collection and processing of

correspondence for mailing with the United States Postal
15 Service; such correspondence would be deposited with the
United States Postal Service the same day of deposit in the
16 ordinary course of business.
 OVERNIGH I placed  a true copy  the original of the foregoing
17 T document(s) enclosed in a sealed envelope addressed as
DELIVERY indicated, and caused such envelope to be delivered to an
18 employee of, or deposited in an established receptacle of
__________________________________________________________________
19 , at Los Angeles, California. The envelope was delivered to the
overnight carrier with appropriate fees thereon fully prepared.
20
 FACSIMILE I transmitted the foregoing document(s) by facsimile, and upon
completion received an acknowledgment from the facsimile
21
machine that the transmission had been successfully completed.
22  EMAIL I transmitted the foregoing document(s) by email, and upon
completion received an acknowledgment from the system that
23 the transmission had been successfully completed.
 STATE I declare under penalty of perjury under the laws of the State of
24 California that the above is true and correct.
 FEDERAL I hereby certify that I am employed in the office of a member of
25 the Bar of this Court at whose direction the service was made; or
that I am a member of the Bar of the United States District
26 Court, Central District of California.
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Executed this 5th day of October, 2009, at Los Angeles, California.
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PROOF OF SERVICE
 1

2 §¨©ª
Robert G. Williscroft
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Beverly Hills CA 90211

161 S. Doheny Dr.

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PROOF OF SERVICE