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March 10, 2026 Get Citation Alerts Download PDF Add Note

Lahar v. Jaiswal CA4/3

California Court of Appeal

• Citations: None known
• Docket Number: G064408

• Precedential Status: Non-Precedential

• Opinion

• Authorities (28)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 3/10/26 Lahar v. Jaiswal CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DAVID A. LAHAR,

Plaintiff and Respondent, G064408

v. (Super. Ct. No. 30-2024-
01378287)
SANJEEV JAISWAL et al.,
OPINION
Defendants and Appellants.

Appeals from an order of the Superior Court of Orange County,
Nathan R. Scott, Judge. Affirmed. Motion for sanctions denied.
Buchalter, Robert M. Dato; Frost Brown Todd and Holly Gilani
for Defendants and Appellants Sanjeev Jaiswal and iFiber Optix, Inc.
Lewis Brisbois Bisgaard & Smith, Corinne C. Bertsche and David
D. Samani for Defendants and Appellants Holly Gilani and Hess-Verdon &
Associates, PLC.
Maralan Law and Sam Maralan for Plaintiff and Respondent.
Sanjeev Jaiswal and his company iFiber Optix, Inc. (collectively,
Jaiswal) sued David Lahar and other parties for fraud and other causes of
action (the underlying action). Jaiswal’s claims were ultimately unsuccessful.
After the trial court entered judgment in the underlying action, Lahar filed a
malicious prosecution lawsuit against Jaiswal and his attorney, Holly Gilani
and Hess-Verdon & Associates, PLC (collectively, Gilani). Pursuant to Code
of Civil Procedure section 425.16, Jaiswal and Gilani then filed a special
motion to strike the malicious prosecution complaint (the anti-SLAPP
motions).1 The court denied the anti-SLAPP motions. On appeal, Jaiswal and
Gilani argue the court erred in denying the motions. We affirm. We also deny
respondent Lahar’s motion for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
I.
THE INITIAL COMPLAINT
On April 8, 2022, Jaiswal initiated the underlying action through
his initial complaint. In his initial complaint, Jaiswal alleged the following
facts: Nicholas Thomas Del Franco agreed to purchase iFiber from Jaiswal
for $22.5 million. Del Franco introduced Jaiswal to Paul Garcia, whom Del
Franco represented was a money manager of Montecristo Capital
Management, Inc. Jaiswal and Del Franco agreed Montecristo would fund
the purchase. Garcia told Jaiswal that Del Franco would have to pay
Montecristo an “[i]nterest [r]eserve” payment of 10 percent of the purchase
price, $2.25 million, before Montecristo could deploy the full purchase price of

1 “SLAPP is an acronym for ‘strategic lawsuit against public

participation.’” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 413,
fn. 2.) All further statutory references are to the Code of Civil Procedure
unless otherwise specified.

2
$22.5 million. A month after the parties agreed to the purchase and funding,
Del Franco introduced Jaiswal to Lahar. Lahar agreed he would manage
iFiber once Del Franco closed the transaction.
To effectuate the purchase of iFiber, Del Franco and Jaiswal
entered into a letter of intent. Lahar did not sign the letter of intent. Shortly
after entering into the letter of intent, Jaiswal loaned Del Franco $1.425
million, half of the 10 percent interest reserve, and later, another $1.365
million. Jaiswal also paid Del Franco’s girlfriend $350,000 to “facilitate the
closing” of the purchase. After Jaiswal sent the funds, he and Del Franco
signed an asset purchase agreement. Lahar was not a party to the asset
purchase agreement. Because Montecristo never funded the purchase and
Del Franco never returned the money Jaiswal had loaned Del Franco,
Jaiswal filed his initial complaint.
The initial complaint alleged 14 causes of action: (1) “Money Had
and Received”; (2) “Fraud–Intentional Misrepresentation”; (3) “Fraud–
Concealment”; (4) “False Promise”; (5) “Fraud and Deceit and Conspiracy”;
(6) “Fraud–Violation of Securities Exchange Act [of 1934 (15 U.S.C. § 78j)
and] Rule 10[b-5 (17 C.F.R. § 240.10b-5)]”; (7) “Breach of Contract”;
(8) “Promissory Estoppel”; (9) “Conversion”; (10) “Unjust Enrichment and for
an Accounting”; (11) “Imposition of Constructive Trust/Equitable Lien”;
(12) “Imposition of Resulting Trust”; (13) “Declaratory Relief”; and (14)
Business and Professions Code section 17200. (Some capitalization omitted.)
Jaiswal named Lahar as a defendant in all but the seventh cause of action.
Lahar filed a demurrer to the initial complaint. In August 2022,
the trial court sustained Lahar’s demurrer to the entire complaint with leave
to amend.

3
II.
THE FIRST AMENDED COMPLAINT
Jaiswal filed the first amended complaint in September 2022.
Among other new facts, the first amended complaint added new parties and
new allegations. The first amended complaint included 20 causes of action.
The following causes of action were against Lahar: (1)–(2) “Breach of
Contract”; (5) “Money Had and Received”; (6) “Fraud–Intentional
Misrepresentation”; (7) “Fraud–Concealment”; (8) “False Promise”; (9) “Fraud
Inducement of Contract”; (10) “Fraud and Deceit and Conspiracy”;
(11) “Intentional Fraudulent Conveyance”; (12) “Conspiracy to Commit
Fraudulent Conveyance”; (13)“Conversion”; (14) “Fraud–Violation of
Securities Exchange Act [of 1934 (15 U.S.C. § 78j) and] Rule 10[b-5 (17 C.F.R.
§ 240.10b-5)]”; (15) “Promissory Estoppel”; (16) “Unjust Enrichment and for
an Accounting”; (17) “Imposition of Constructive Trust/Equitable Lien”;
(18) “Imposition of Resulting Trust”; (19) “Declaratory Relief”; and
(20) Business and Professions Code section 17200 et seq. (Some capitalization
omitted.)
Relevant to this appeal, Jaiswal alleged in the first amended
complaint he, Del Franco, and Lahar verbally agreed Del Franco and Lahar
would purchase 49 percent of iFiber. Jaiswal further alleged Lahar was a
party to a “share purchase agreement” which indicated Del Franco and Lahar
agreed to jointly purchase 49 percent of iFiber. Jaiswal, however, did not
enclose a new share purchase agreement to his first amended complaint, but
rather enclosed the same asset purchase agreement where only Del Franco
signed. Jaiswal explained Lahar was not named in any of the documents
because the funding of the purchase would be mostly based on Del Franco’s
credit history.

4
Lahar filed a demurrer to the first amended complaint, which the
trial court heard and sustained in April 2023, and on May 1, 2023, Lahar
served Jaiswal with notice of ruling on the demurrer and motion to strike,
including the court’s minute order. Relevant to this appeal, the court struck
the breach of contract causes of action without leave to amend and sustained
Lahar’s demurrer to the fraud causes of action without leave to amend.2 The
court determined the sham pleading doctrine barred the breach of contract
cause of action because the allegations in the initial complaint were “flatly
contradictory” to those in the first amended complaint. Specifically, Jaiswal’s
allegation Lahar breached an oral agreement to purchase part of iFiber was
“contradictory” to the allegation in the initial complaint that Del Franco
agreed to purchase iFiber from Jaiswal and signed the asset purchase
agreement to that effect. Although the court maintained Jaiswal could file a
motion for leave to amend the first amended complaint in order to avoid
falling afoul of the sham pleading doctrine, Jaiswal never did.
III.
SETTLEMENT AND FINAL JUDGMENT
Jaiswal reached settlements in the underlying action with Garcia
and Del Franco in March and April 2023, respectively. According to Jaiswal,
Del Franco paid $300,000 to have Lahar dismissed from the complaint as
part of that settlement. Lahar was not a party to the settlement. During the
settlement negotiations, Jaiswal had reached out to Lahar via telephone.

2 The trial court struck some causes of action without leave to

amend, sustained the demurrer to other causes of action without leave to
amend, and sustained the demurrer to the rest of the causes of action with
leave to amend. Because Lahar’s malicious prosecution claim focuses solely
on breach of contract and fraud, we limit our recitation of the facts to those
causes.

5
Lahar did not answer the phone and instead texted Jaiswal, “Why are you
trying to reach me?” Jaiswal texted back, “May[be] you can put some sense
[into Del Franco], [¶] [Garcia] got his part done, may[be] a conversation will
help you understand the situation.” Lahar responded that he “[was] not
involved” in the underlying case and “dragging [him] into this was built on
lies and misrepresentations.” Lahar indicated he did not want to talk to
anyone about the case.
Based on the settlement and the desire to stop increasing
litigation costs and fees, Jaiswal decided to discontinue all litigation in the
underlying case and against Lahar. As a result, Jaiswal filed a request to
dismiss all his claims against Lahar on May 22, 2023. Shortly thereafter, in
June 2023, Lahar filed an ex parte motion for dismissal. The trial court
granted Lahar’s motion. It maintained Jaiswal lost the right to amend the
first amended complaint or voluntarily dismiss it 10 days after May 1, 2023,
when Lahar gave Jaiswal notice of the court’s April 27, 2023 minute order
granting Lahar’s motion to strike and sustaining his demurrer. Thus, the
court vacated Jaiswal’s May 22, 2023 request for dismissal and entered a
judgment of dismissal in Lahar’s favor.
IV.
LAHAR FILES MALICIOUS PROSECUTION COMPLAINT
Lahar filed a complaint for malicious prosecution against Jaiswal
and Gilani in February 2024. Lahar limited his complaint to the causes of
action for fraud and breach of contract. Lahar alleged Gilani and Jaiswal
lacked probable cause to bring these causes of action because they knew there
were no facts to support the initial complaint and the first amended
complaint. Lahar argued the facts in the initial complaint changed entirely in
the first amended complaint. Lahar further alleged “[n]o reasonable attorney

6
would have filed or pursued” the claims because “no evidence existed to
support” them.
About a month after Lahar filed his malicious prosecution
complaint, Jaiswal and Gilani filed anti-SLAPP motions. Jaiswal and Gilani
argued Lahar did not receive a favorable termination on the merits in
Jaiswal’s underlying action because the dismissal was based on a settlement.
They further argued they had probable cause to bring Jaiswal’s claims
because they had a basis to believe the changed allegations from the initial
complaint to the first amended complaint. Finally, they argued Lahar could
not make a prima facie showing of malice because they did not initiate or
litigate the underlying action due to any ill will or personal animus. Rather,
they operated as reasonable, zealous advocates, based on the evidence
provided by Jaiswal and the information obtained through discovery.
The trial court denied the anti-SLAPP motions. The court
determined Lahar had obtained a favorable termination on the fraud and
breach of contract causes of action in the underlying action. Specifically, in
the underlying action, the court found the breach of contract cause of action
was a sham pleading and found the fraud causes of action “failed to state
causes of action.” Moreover, “nothing show[ed] Jaiswal settled the subject
claims against Lahar.” The court also found Lahar showed Jaiswal and
Gilani maintained the breach of contract cause of action without probable
cause because “[n]o reasonable attorney” would find the cause of action was
“legally tenable.” Additionally, the court noted Lahar was not a party to the
asset purchase agreement, and nothing showed the asset purchase
agreement did not supersede all prior agreements. The court concluded Lahar
made a prima facie case showing Jaiswal and Gilani initiated or maintained
at least the breach of contract cause of action with malice. With respect to the

7
malice element, the court determined the breach of contract cause of action
lacked merit, and Jaiswal’s attempt to explain the inconsistencies between
the initial complaint and the first amended complaint was “objectively
untenable.” The court also noted “an improper purpose can include ‘“‘“forcing
a settlement which has no relation to the merits of the claim.’”’”” It found
Jaiswal’s communications with Lahar suggested Jaiswal pursued Lahar to
force Del Franco into settling.
DISCUSSION
I.
ANTI-SLAPP LEGAL FRAMEWORK AND STANDARD OF REVIEW
The anti-SLAPP statute aims to shield defendants from “lawsuits
brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (§ 425.16, subd.
(a).) To curb such abuses of the civil justice system, “the statute authorizes a
special motion to strike a claim ‘arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public
issue.’” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) “The
anti-SLAPP statute does not insulate defendants from any liability for claims
arising from the protected rights of petition or speech. It only provides a
procedure for weeding out, at an early stage, meritless claims arising from
protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The statute
must “be construed broadly.” (§ 425.16, subd. (a).)
Courts evaluate anti-SLAPP motions through a two-step process.
(Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) First, “the
moving defendant bears the burden of establishing that the challenged
allegations or claims ‘aris[e] from’ protected activity in which the defendant

8
has engaged.” (Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061, quoting § 425.16, subd. (b)(1); see § 425.16, subd. (e)
[defining protected activity].) Second, if the defendant satisfies the first step,
the plaintiff must show “there is a probability that the plaintiff will prevail
on the claim.” (§ 425.16, subd. (b)(1).) The plaintiff must establish the claim
has “at least ‘minimal merit.’” (Park, supra, 2 Cal.5th at p. 1061.)
“We review de novo the grant or denial of an anti-SLAPP
motion.” (Park v. Board of Trustees of California State University, supra,
2 Cal.5th at p. 1067.) “‘“Thus, we apply our independent judgment, both to
the issue of whether the cause of action arises from a protected activity and
whether the plaintiff has shown a probability of prevailing on the claim.”’”
(Balla v. Hall (2021) 59 Cal.App.5th 652, 671.)
II.
STEP ONE: PROTECTED ACTIVITY
A claim is only subject to an anti-SLAPP motion if it “aris[es]
from” protected activity. (§ 425.16, subd. (b)(1).) Section 425.16, subdivision
(e)(1)–(2), defines protected activity to include any statement made in a
judicial proceeding or in connection with an issue under consideration by a
judicial body. “We review the parties’ pleadings, declarations, and other
supporting documents at this stage of the analysis only ‘to determine what
conduct is actually being challenged, not to determine whether the conduct is
actionable.’” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 491.) The
parties agree Lahar’s malicious prosecution complaint arises from protected
activity, therefore we turn to the second prong of the anti-SLAPP analysis.

9
III.
STEP TWO: PROBABILITY OF PREVAILING ON THE MERITS
A. Lahar Carried His Burden of Showing a Probability of Prevailing on the
Merits of the Malicious Prosecution Cause of Action
As discussed ante, once Jaiswal and Gilani met their burden of
demonstrating Lahar’s malicious prosecution cause of action arose from
protected activity, the burden shifted to Lahar to demonstrate the malicious
prosecution cause of action was “legally sufficient and factually
substantiated.” (Baral v. Schnitt, supra, 1 Cal.5th at p. 396.) A plaintiff
cannot meet this burden by relying on its own pleading but must present
admissible evidence. (Newport Harbor Offices & Marina, LLC v. Morris
Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 49.) As discussed in
more detail below, we find Lahar carried his burden.
1. Elements of a Malicious Prosecution Claim
A successful malicious prosecution claim has three elements: It
“was (1) initiated or maintained by, or at the direction of, the defendants, and
pursued to a legal termination in favor of the malicious prosecution plaintiff;
(2) initiated or maintained without probable cause; and (3) initiated or
maintained with malice.” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 787.)
a. Favorable Termination of the Prior, Underlying Proceeding
The favorable termination element has been interpreted as
requiring a resolution, either express or implied, on the substantive merits of
the claim, as opposed to procedural or technical resolutions. The “termination
must reflect on the merits of the underlying action.” (Lackner v. LaCroix
(1979) 25 Cal.3d 747, 750.) “It is apparent ‘favorable’ termination does not
occur merely because a party complained against has prevailed in an
underlying action. While the fact he has prevailed is an ingredient of a

10
favorable termination, such termination must further reflect on his innocence
of the alleged wrongful conduct. If the termination does not relate to the
merits—reflecting on neither innocence of nor responsibility for the alleged
misconduct—the termination is not favorable in the sense it would support a
subsequent action for malicious prosecution.” (Id. at p. 751.) “The key is
whether the termination reflects on the underlying defendant’s innocence.”
(Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855.) “The test is whether
or not the termination tends to indicate the innocence of the defendant or
simply involves technical, procedural or other reasons that are not
inconsistent with the defendant’s guilt.” (Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857, 881.) “Examples of technical or procedural reasons
for terminating an action include abandonment of ‘the proceeding because of
the defects in the complaint, or doubts as to the jurisdiction of the offense,
with the intention of bringing a new proceeding in proper form or before a
proper court.’” (Eells, supra, 36 Cal.App.4th at p. 1855.) In “‘determin[ing]
“whether there was a favorable termination,” we “look at the judgment as a
whole in the prior action.”’” (Maleti v. Wickers (2022) 82 Cal.App.5th 181,
211.)
Here, the trial court in the underlying action sustained Lahar’s
demurrer to the fraud causes of action because they failed to state a cause of
action. The court struck the breach of contract cause of action without leave
to amend because it was barred by the sham pleading doctrine. The court
determined both the fraud and breach of contract causes of action were based
on an oral agreement that was “‘not plausible’” based on Jaiswal’s pleadings.
These circumstances “reflect[ ] the opinion of the court or the prosecuting
party that the action would not succeed.” (Sierra Club Foundation v. Graham

11
(1999) 72 Cal.App.4th 1135, 1149,) and therefore constituted a favorable
determination as to Lahar.3
As they did in the trial court, Gilani and Jaiswal contend Jaiswal
dismissed his underlying action against Lahar because Jaiswal reached a
settlement with Del Franco and Garcia in March 2023. Gilani and Jaiswal
admit Lahar was neither a party nor a signatory to the settlement. The court
initially confirmed Jaiswal’s dismissal as to Lahar, but later vacated the
judgment because Jaiswal had lost the right to voluntarily dismiss his
complaint against Lahar 10 days after he was served with the court’s minute
order. The court then entered a judgment in Lahars’ favor pursuant to section
581, subdivision (f) and California Rules of Court, rule 3.1320(h) with
prejudice. These facts show Jaiswal neither did nor could have voluntarily
dismissed his first amended complaint as part of his settlement with Del
Franco and Garcia.
Jaiswal and Gilani also attempt to argue the trial court
misapplied the sham pleading doctrine as to the underlying action. Jaiswal,
however, failed to appeal from that June 1, 2023 minute order, and we cannot
consider his challenge to the finding now. “‘If a judgment or order is
appealable, an aggrieved party must file a timely appeal or forever lose the
opportunity to obtain appellate review.’” (Norman I. Krug Real Estate
Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) Consequently,

3 Despite his opportunity to file a notice for leave to amend

without falling afoul of the sham pleading doctrine, Jaiswal failed to cure the
defect and file a second amended complaint. Typically, the failure to amend a
complaint constitutes an admission the plaintiffs have stated the case as
strongly as they could have, and no additional facts could be alleged to cure
the defect. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th
237, 244.)

12
“‘[a] party who fails to take a timely appeal from a decision or order from
which an appeal might previously have been taken cannot obtain review of it
on appeal from a subsequent judgment or order.’” (Dakota Payphone, LLC v.
Alcaraz (2011) 192 Cal.App.4th 493, 509.) The June 1, 2023 minute order
granting Lahar’s ex parte application was final and appealable. (See In re
Marriage of Leonard (2004) 119 Cal.App.4th 546, 554.) By failing to timely
appeal that order, Jaiswal has forfeited his right to challenge it and cannot
obtain review thereof in this appeal arising from Lahar’s malicious
prosecution case.
b. Probable Cause
“‘Probable cause is a low threshold designed to protect a litigant’s
right to assert arguable legal claims even if the claims are extremely unlikely
to succeed. “[T]he standard of probable cause to bring a civil suit [is]
equivalent to that for determining the frivolousness of an appeal [citation],
i.e., probable cause exists if ‘any reasonable attorney would have thought the
claim tenable.’ [Citation.] This rather lenient standard for bringing a civil
action reflects ‘the important public policy of avoiding the chilling of novel or
debatable legal claims.’ [Citation.] Attorneys and litigants . . . ‘“have a right
to present issues that are arguably correct, even if it is extremely unlikely
that they will win . . . .”’ [Citations.] Only those actions that ‘“any reasonable
attorney would agree [are] totally and completely without merit”’ may form
the basis for a malicious prosecution suit.”’” (Mendoza v. Wichmann (2011)
194 Cal.App.4th 1430, 1449, quoting Plumley v. Mockett (2008)
164 Cal.App.4th 1031, 1047–1048.)
An attorney has probable cause to pursue an action if the
attorney has “‘evidence sufficient to uphold a favorable judgment or
information affording an inference that such evidence can be obtained for

13
trial.’” (Arcaro v. Silva & Silva Enterprises Corp. (1999) 77 Cal.App.4th 152,
157.) An inference is not reasonable if it is based on suspicion, imagination,
speculation, surmise, conjecture, or guesswork. (Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, 1113.) “A claim of malicious
prosecution may be based on a single ground for liability alleged in the
complaint that lacks probable cause.” (Kreeger v. Wanland (2006)
141 Cal.App.4th 826, 834, citing Crowley v. Katleman (1994) 8 Cal.4th 666,
679.)
Here, Lahar was neither a party to the agreement nor to the
letter of intent when Gilani filed the initial complaint and the first amended
complaint. Jaiswal’s own pleadings and his declaration to the initial
complaint failed to allege he entered into an oral agreement with Lahar.
Based on those known facts, no reasonable attorney would have thought
Jaiswal’s breach of contract action against Lahar was legally tenable.
(Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 568.) Jaiswal’s later
declaration, where he tries to explain the inconsistencies, fails to explain why
the alleged oral agreement overrode the asset purchase agreement, which
explicitly states: “complete, final and exclusive agreement among [Jaiswal
and Del Franco] with respect to the purchase.” Based on these facts, Gilani
did not have probable cause to pursue the breach of contract cause of action
because they did not have “‘evidence sufficient to uphold a favorable
judgment or information affording an inference that such evidence can be
obtained for trial.’” (Arcaro v. Silva & Silva Enterprises Corp., supra,
77 Cal.App.4th at p. 157.)
c. Malice
“The ‘malice’ element . . . relates to the subjective intent or
purpose with which the defendant acted in initiating the prior action.

14
[Citation.] The motive of the defendant must have been something other than
that of . . . the satisfaction in a civil action of some personal or financial
purpose. [Citation.] The plaintiff must plead and prove actual ill will or some
improper ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998)
66 Cal.App.4th 478, 494.) Improper purposes can be established in cases in
which, for instance: (1) the person bringing the suit does not believe the claim
may be held valid; (2) the proceeding is initiated primarily because of
hostility or ill will; (3) the proceeding is initiated solely for the purpose of
depriving the opponent of a beneficial use of property; or (4) the proceeding is
initiated for the purpose of forcing a settlement bearing no relation to the
merits of the claim. (Sycamore Ridge Apartments LLC v. Naumann (2007)
157 Cal.App.4th 1385, 1407.) If the prior action was not objectively tenable,
the extent of a defendant’s attorney’s investigation and research may be
relevant to the further question of whether the attorney acted with malice.
(Ibid.) “Since parties rarely admit an improper motive, malice is usually
proven by circumstantial evidence and inferences drawn from the evidence.”
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)
As noted above, the facts in Jaiswal’s initial complaint and the
first amended complaint were inconsistent. Jaiswal attempted to explain the
inconsistencies by stating he had discovered new information, i.e. the
supposed oral agreement between himself and Lahar. However, the oral
agreement allegedly occurred before Jaiswal filed his initial complaint.
Jaiswal would therefore have known of the agreement before he filed his
initial complaint. Jaiswal also alleged he entered into the letter of intent and
the asset purchase agreement after he discovered he was being defrauded
and wanted the writings as evidence. The writings, however, occurred before
Jaiswal ever transferred the funds to Del Franco. The record also shows

15
Jaiswal brought the breach of contract cause of action against Lahar because
he wanted to pressure Del Franco into settling. During the underlying action,
Jaiswal asked Lahar to “put some sense” into Del Franco and stated:
“[Garcia] got his part done, may[be] a conversation will help [Lahar]
understand the situation.” These facts taken together support a prima facie
showing Jaiswal initiated and maintained the breach of contract cause of
action with malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 296 [“malice can also be inferred from the evidence that defendants
lacked probable cause to initiate and maintain the underlying action”].)
With respect to Gilani, they were Jaiswal’s attorneys from the
time he filed his initial complaint. The terms of the asset purchase agreement
and conflicting information in Jaiswal’s declarations suggest Gilani knew the
breach of contract claim against Lahar lacked merit. (Sheldon Appel Co. v.
Albert & Oliker (1989) 47 Cal.3d 863, 881 [evidence “the defendant attorney
did not subjectively believe that the action was tenable would clearly be
relevant to the question of malice”].) Moreover, although Gilani tried to
obtain discovery to show Lahar’s involvement, they failed to show any
examination as to how the asset purchase agreement impacted the alleged
oral agreement. This was probative evidence which supports an inference of
malice. (See id. at p. 883 [where underlying action was not legally tenable,
“extent of a defendant attorney’s investigation and research may be relevant
to the further question of whether or not the attorney acted with malice”].)
Based on the record before us, the evidence is sufficient to demonstrate the
minimal merit necessary to defeat Gilani’s and Jaiswal’s anti-SLAPP motion
on the issue of malice.

16
IV.
LAHAR’S MOTION FOR SANCTIONS
Lahar moved for sanctions on appeal, contending the appeal was
completely meritless, frivolous, and taken for the sole purpose of delay. An
appellate court may impose monetary sanctions in such instances. (§ 907;
Cal. Rules of Court, rule 8.276 (a)(1).) In evaluating whether an appeal is
frivolous, we use a subjective and objective standard. (Malek Media Group,
LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834 (Malek Media Group).)
“‘The subjective standard looks to the motives of the appealing party and his
or her attorney, while the objective standard looks at the merits of the appeal
from a reasonable person’s perspective.’” (Bucur v. Ahmad (2016)
244 Cal.App.4th 175, 192.) A frivolousness finding may be based on either
standard, but the two tests are commonly used together “with one sometimes
providing evidence relevant to the other.” (Malek Media Group, supra,
58 Cal.App.5th at p. 834.)
In considering whether an appeal is objectively frivolous, the
question is not whether counsel had an honest belief they had grounds for
appeal, but rather whether any reasonable person would agree the appeal is
completely devoid of merit. (Malek Media Group, supra, 58 Cal.App.5th at
p. 834.) If legal authority addressing the precise issue raised on appeal exists
or if appellant’s arguments rely on “negligible legal foundation,” an appeal
may be objectively frivolous. (Id. at pp. 834–835.) “An appeal is totally devoid
of merit where there are ‘no unique issues, no facts that are not amenable to
easy analysis in terms of existing law, and no reasoned argument by
[appellant] for an extension of existing law.’” (Id. at p. 835.)
The imposition of sanctions is appropriate “‘to compensate for a
party’s egregious behavior, and to deter abuse of the court system and the

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appellate process.’” (Malek Media Group, supra, 58 Cal.App.5th at p. 834.)
But they should not be used merely because an appeal is meritless. (Ibid.)
Indeed, the indiscriminate application of sanctions pursuant to section 907
“‘could deter attorneys from vigorously representing their clients, and deter
parties from pursuing legitimate appeals.’” (Ibid.)
Based on the record before us, we cannot conclude Gilani and
Jaiswal appealed for the sole purpose of delay or that the appeal was
completely meritless. Lahar contends Jaiswal and Gilani misrepresented the
record and obscured facts. Lahar’s argument focuses on Jaiswal and Gilani’s
discussion regarding the dismissal of the first amended complaint. We agree
Jaiswal and Gilani incorrectly argue the settlement was the reason Jaiswal
dismissed Lahar from the lawsuit. We also recognize Gilani and Jaiswal
failed to reference the trial court vacated the May 1, 2023 judgment.
Accordingly, we caution appellate counsel not to overstate or misrepresent
the record under the cloak of effective advocacy because it, at the very least,
violates court rules. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)
We, however, cannot say Gilani and Jaiswal’s conduct was
egregious because one of the main issues on appeal was a disagreement on
whether the judgment was a favorable termination on the merits.
Additionally, had Jaiswal and Gilani “elected not to appeal, they would have
done so at the risk of waiving whatever appellate rights they might have
had.” (Young v. Hartford (2024) 106 Cal.App.5th 730, 741.) Thus, mindful
that sanctions should be “‘used most sparingly to deter only the most
egregious conduct’ [citation], and that [the fact] an appeal lacks merit does
not, alone, establish it is frivolous” (In re Marriage of Gong & Kwong (2008)
163 Cal.App.4th 510, 518), we deny Lahar’s motion for sanctions.

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DISPOSITION
The order is affirmed. Lahar is to recover costs on appeal.

MOTOIKE, ACTING P. J.

WE CONCUR:

MOORE, J.

DELANEY, J.

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