Mindys Cosmetics, Inc. v. Dakar

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINDYS COSMETICS, INC., a 

California corporation,

Plaintiff-Appellee,

v. No. 09-55134

SONYA DAKAR, an individual; D.C. No.

DONNA DAKAR, an individual,  2:08-cv-04459-

AKA Daniella Dakar, SVW-RZ

Defendants, OPINION

and

KIA KAMRAN, an individual,

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

March 5, 2010—Pasadena, California

Filed July 6, 2010

Before: William C. Canby, Jr. and William A. Fletcher,

Circuit Judges, and John R. Tunheim,* District Judge.

Opinion by Judge William A. Fletcher

*The Honorable John R. Tunheim, United States District Judge for the

District of Minnesota, sitting by designation.

9587

9590 MINDYS COSMETICS v. DAKAR

COUNSEL

Al Mohajerian, Michael Thomas Smith, MOHAJERIAN

LAW CORPORATION, Los Angeles, California, for the

appellee.

William K. Mills, Justin Davis Denlinger, PARKER SHU-

MAKER MILLS, LLP, Los Angeles, California, for the

appellant.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff-appellee Mindys Cosmetics, Inc. (“Mindys”) is a

cosmetics company owned and operated by members of the

Dakar family. Defendant-appellant Kia Kamran (“Kamran”)

is an attorney. In 2007, Kamran registered two of Mindys’

trademarks in Sonya Dakar’s name. Israel and Natan Dakar

brought suit in the name of Mindys against Sonya Dakar,

Donna Dakar, and Kamran. Kamran moved under Califor-

nia’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, to

strike the claims against him. The district court denied the

motion. Kamran brings an interlocutory appeal of the district

court’s denial. We affirm.

I. Background

This case arises from a dispute among members of the

Dakar family over ownership of two trademarks: the “Sonya

Dakar” mark and “The Problem Skin Specialists” mark. The

family conflict pits Israel Dakar and his son Natan against

Israel’s wife Sonya Dakar, their son Yigal, and their daugh-

ters Daniella (“Donna”) and Michal (“Mimi”).

According to Israel Dakar, he and Natan founded Mindys

Cosmetics in 1994 and have managed the company since

MINDYS COSMETICS v. DAKAR 9591

1999. In 2000 and 2001, Mindys registered the two trade-

marks at issue, listing Donna Dakar as the owner of the

marks. In 2006, Yigal Dakar retained Kamran for a variety of

services “on behalf of the family business.” Kamran was not

involved in the 2000 trademark registration. In 2007, Kamran

noticed that the “Sonya Dakar” mark had expired. Yigal,

Donna, and Mimi instructed Kamran to consult Sonya about

the registration. Sonya instructed Kamran to register both

marks in her name, which Kamran did.

In 2008, Israel and Natan brought suit on behalf of Mindys

against Sonya and Donna (the “Dakar Defendants”) and Kam-

ran. The complaint alleged trademark infringement by Sonya

Dakar, legal malpractice and breach of fiduciary duty by

Kamran, and fraudulent concealment and conversion by Kam-

ran and the Dakar Defendants. Kamran moved under Califor-

nia’s anti-SLAPP law, Cal. Civ. Proc. Code § 425.16, to strike

the claims against him. The district court denied Kamran’s

motion. It held that Mindys’ suit against Kamran did not arise

from protected conduct under the anti-SLAPP statute and that,

even if it did, Mindys had demonstrated a probability of pre-

vailing on the merits of its claims.

II. Jurisdiction and Standard of Review

We have jurisdiction to review the district court’s denial of

Kamran’s anti-SLAPP motion under the collateral order doc-

trine. Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir.

2010); Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th Cir.

2003). We review de novo a district court’s denial of a motion

to strike under California’s anti-SLAPP statute. Vess v. Ciba-

Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003); see

also Flatley v. Mauro, 39 Cal. 4th 299, 326 (2006).

III. Discussion

[1] Kamran contends that Mindys’ suit against him is a

Strategic Lawsuit Against Public Participation (“SLAPP”)

9592 MINDYS COSMETICS v. DAKAR

within the meaning of California’s anti-SLAPP statute. See

Cal. Civ. Proc. Code § 425.16. California enacted the anti-

SLAPP statute “in response to the legislature’s concern about

civil actions aimed at private citizens to deter or punish them

for exercising their political or legal rights.” United States ex

rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d

963, 970 (9th Cir. 1999). The statute was designed to allow

courts “to promptly expose and dismiss meritless and harass-

ing claims seeking to chill protected expression.” Bosley Med.

Inst., Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005). The

statute provides that a party may file a motion to strike a

cause of action against it if the complaint “aris[es] from any

act of that person in furtherance of the person’s right of peti-

tion or free speech under the United States Constitution or the

California Constitution in connection with a public issue.”

Cal. Civ. Proc. Code § 425.16(b)(1). The statute is to be “con-

strued broadly.” Id. § 425.16(a); Vess, 317 F.3d at 1109.

“A court considering a motion to strike under the anti-

SLAPP statute must engage in a two-part inquiry.” Vess, 317

F.3d at 1110. First, the defendant must make a prima facie

showing that the plaintiff’s suit “arises from an act in further-

ance of the defendant’s rights of petition or free speech.” Id.

(internal quotation marks omitted). “Second, once the defen-

dant has made a prima facie showing, the burden shifts to the

plaintiff to demonstrate a probability of prevailing on the

challenged claims.” Id. (internal quotation marks omitted).

The defendant bringing a motion to strike “need not show that

the plaintiff’s suit was brought with the intention to chill the

defendant’s speech” or “that any speech was actually chilled.”

Id.

We hold that Kamran has made a prima facie showing that

the suit against him “arises from” a protected act under the

anti-SLAPP statute. However, Mindys has made a sufficient

showing under the second part of the inquiry to withstand

Kamran’s motion to strike under the anti-SLAPP statute. We

MINDYS COSMETICS v. DAKAR 9593

therefore affirm the district court’s denial of Kamran’s motion

to strike.

A. Prima Facie Showing of a Protected Act

Defendant Kamran bears the burden of demonstrating that

Mindys’ suit against him arises from a protected act. Vess,

317 F.3d at 1110.

[2] An “act in furtherance of a person’s right of petition or

free speech” includes:

(1) any written or oral statement or writing made

before a legislative, executive, or judicial proceed-

ing, or any other official proceeding authorized by

law;

(2) any written or oral statement or writing made in

connection with an issue under consideration or

review by a legislative, executive, or judicial body,

or any other official proceeding authorized by law;

(3) any written or oral statement or writing made in

a place open to the public or a public forum in con-

nection with an issue of public interest;

(4) or any other conduct in furtherance of the exer-

cise of the constitutional right of petition or the con-

stitutional right of free speech in connection with a

public issue or an issue of public interest.

Cal. Civ. Proc. Code § 425.16(e). Kamran contends that filing

a trademark application with the United States Patent and

Trademark Office (“USPTO”) constitutes a protected act

under categories (1) and (2). The district court did not deter-

mine whether this act constituted a protected act because it

concluded that the suit did not “arise from” the filings even

if they were protected. While it is a close question, we follow

9594 MINDYS COSMETICS v. DAKAR

the California legislature’s direction that the anti-SLAPP stat-

ute be “construed broadly,” id. § 425.16(a), and hold that

Kamran’s act of filing the trademark applications with the

USPTO was a protected act within the meaning of the statute.

1. Protected Act

[3] The filing of a trademark application is a formal com-

munication to the USPTO seeking official action in a process

governed by statute. See 15 U.S.C. § 1051 (“Application for

registration; verification”). We conclude that the application

is protected by the anti-SLAPP statute as a “writing made

before . . . [an] executive [or] . . . other official proceeding

authorized by law.” Cal. Civ. Proc. Code § 425.16(e)(1). The

application may also be a “writing made in connection with

an issue under consideration . . . by . . . [an] executive . . .

body, or any other official proceeding.” Id. § 425.16(e)(2).

California appellate courts interpreting the anti-SLAPP

statute have distinguished between communications made in

the course of “official” proceedings, which are protected, and

mere “ministerial” business communications, which are not.

For example, in ComputerXpress, Inc. v. Jackson, 93 Cal.

App. 4th 993, 1009 (2001), the court of appeal found that fil-

ing a complaint with the SEC that was designed to solicit an

investigation “qualified at least as a statement before an offi-

cial proceeding” under § 425.16(e)(1). “[C]ommunication to

an official administrative agency . . . designed to prompt

action by that agency is as much a part of the ‘official pro-

ceeding’ as a communication made after the proceeding had

commenced.” Id. (internal citations and some quotation marks

omitted). In Kibler v. Northern Inyo County Local Hospital

District, 39 Cal. 4th 192, 199 (2006), the California Supreme

Court held that “a hospital’s peer review procedure qualifies

as an ‘official proceeding authorized by law’ . . . because that

procedure is required under [California] Business and Profes-

sions Code section 805 et seq., governing hospital peer review

proceedings.” In Braun v. Chronicle Publishing Co., 52 Cal.

MINDYS COSMETICS v. DAKAR 9595

App. 4th 1036, 1049 (1997), the court of appeal similarly con-

cluded that an investigative audit conducted by a state auditor

was “an authorized, public proceeding because it is

government-sponsored and provided for by statute.”

In contrast, California appellate courts have held that “min-

isterial” acts involving primarily private transactions are not

protected acts. For example, in Blackburn v. Brady, 116 Cal.

App. 4th 670, 677 (2004), the court of appeal rejected the

contention that statements made in connection with a Sheriff’s

auction could amount to protected speech under the anti-

SLAPP law. “The ministerial event of a Sheriff’s sale or auc-

tion simply does not concern an issue under review or deter-

mine some disputed matter as contemplated under the anti-

SLAPP law.” Id. It was a mere “business dealing or transac-

tion.” Id.; see also Kajima Eng’g & Constr., Inc. v. City of

Los Angeles, 95 Cal. App. 4th 921, 932 (2002) (“The submis-

sion of contractual claims for payment in the regular course

of business before the commencement of litigation simply is

not an act in furtherance of the right of petition or free speech

within the meaning of the anti-SLAPP statute.”) (citing Peo-

ple ex rel. 20th Century Ins. Co. v. Bldg. Permit Consultants,

Inc., 86 Cal. App. 4th 280, 285 (2000); Ericsson GE Mobile

Commc’ns, Inc. v. C.S.I. Telecomms. Eng’rs, 49 Cal. App. 4th

1591, 1601-02 (1996)).

[4] Filing a trademark application is more than merely a

ministerial act connected with a business transaction. It is an

attempt to establish a property right under a comprehensive

federal statutory scheme. See New Kids on the Block v. News

Am. Publ’g, Inc., 971 F.2d 302, 305 (9th Cir. 1992); 15

U.S.C. § 1072 (registering a trademark provides “constructive

notice of the registrant’s claim of ownership thereof”). The

filing party seeks a determination by USPTO examiners that

it is the presumptive owner of a protectable mark. See, e.g.,

Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966, 970 (9th

Cir. 2007) (“Registration of a mark on the Principal Register

in the Patent and Trademark Office constitutes prima facie

9596 MINDYS COSMETICS v. DAKAR

evidence of the validity of the registered mark and of the reg-

istrant’s exclusive right to use the mark on the goods and ser-

vices specified in the registration.” (internal alterations and

quotation marks omitted)); Yellow Cab Co. of Sacramento v.

Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 928 (9th Cir.

2005) (“Federal registration of a mark constitutes prima facie

evidence of the validity of the mark.“). We therefore conclude

that such a filing is a protected act under the anti-SLAPP stat-

ute.

2. “Arising From” a Protected Act

Kamran must also demonstrate that the suit against him

“arises from” his protected act of filing a trademark applica-

tion. “In the anti-SLAPP context, the critical consideration is

whether the cause of action is based on the defendant’s pro-

tected free speech or petitioning activity.” Navellier v. Sletten,

29 Cal. 4th 82, 89 (2002); see also City of Cotati v. Cashman,

29 Cal. 4th 69, 76-77 (2002) (“[T]he mere fact an action was

filed after protected activity took place does not mean it arose

from that activity.”).

The district court relied on two California court of appeal

cases in which the court concluded that attorney malpractice

claims do not arise from a protected act. See Benasra v.

Mitchell Silberberg & Knupp LLP, 123 Cal. App. 4th 1179

(2004); Kolar v. Donahue, McIntosh & Hammerton, 145 Cal.

App. 4th 1532 (2006). It is true that in several cases involving

attorney malpractice claims, courts of appeal have concluded

that the alleged malpractice does not arise from a protected

act under the anti-SLAPP statute. See PrediWave Corp. v.

Simpson Thacher & Bartlett LLP, 179 Cal. App. 4th 1204,

1221-26 (2009 ) (describing cases). For example, in Benasra,

the court determined that the anti-SLAPP statute did not apply

to a former client’s suit against a law firm for breach of loy-

alty. The court reasoned that “[t]he breach of fiduciary duty

lawsuit may follow litigation pursued against the former cli-

ent, but does not arise from it.” Benasra, 123 Cal. App. 4th

MINDYS COSMETICS v. DAKAR 9597

at 1189. In Jespersen v. Zubiate-Beauchamp, 114 Cal. App.

4th 624 (2003), the court held that the malpractice action fell

outside of the anti-SLAPP statute when it alleged the attor-

neys’ failure to respond to discovery requests and to comply

with court orders. In Kolar, the court explained, “In a mal-

practice suit, the client is not suing because the attorney peti-

tioned on his or her behalf, but because the attorney did not

competently represent the client’s interests while doing so.”

145 Cal. App. 4th at 1540.

[5] However, there is no categorical exclusion of claims of

attorney malpractice from the anti-SLAPP statute. The Cali-

fornia Supreme Court has observed that “[n]othing in the stat-

ute itself categorically excludes any particular type of action

from its operation.” Navellier, 29 Cal. 4th at 92. “The anti-

SLAPP statute’s definitional focus is not the form of the

plaintiff’s cause of action but, rather, the defendant’s activity

that gives rise to his or her asserted liability—and whether

that activity constitutes protected speech or petitioning.” Id.

[6] Each of Mindys’ causes of action arises not out of a

general breach of duty, but out of Kamran’s act of filing the

trademark application in Sonya’s name. The trademark appli-

cation was not “incidental” to the causes of action, see Free-

man v. Schack, 154 Cal. App. 4th 719, 732 (2007), but was

their gravamen, see Cotati, 29 Cal. 4th at 79. But for the

trademark application, Mindys would have no reason to sue

Kamran. Because Mindys’ claims arose from Kamran’s act of

applying to register the trademarks in Sonya’s name, they are

properly subject to an anti-SLAPP motion.

B. Probability of Success on the Merits

1. Legal Standard

At the second step of the anti-SLAPP inquiry, the burden

shifts to Mindys to show a probability of success. Navellier,

29 Cal. 4th at 95. To satisfy this second prong, the plaintiff

9598 MINDYS COSMETICS v. DAKAR

“must show a ‘reasonable probability’ of prevailing in its

claims for those claims to survive dismissal.” Metabolife Int’l,

Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001). The court

is to consider “the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense

is based.” Cal. Civ. Proc. Code § 425.16(b)(2).

“Reasonable probability” in the anti-SLAPP statute has a

specialized meaning. The statute requires only a “minimum

level of legal sufficiency and triability.” Linder v. Thrifty Oil

Co., 23 Cal. 4th 429, 438 n.5 (2000). Indeed, the second step

of the anti-SLAPP inquiry is often called the “minimal merit”

prong. See Peregrine Funding, Inc. v. Sheppard Mullin Rick-

ter & Hampton LLP, 133 Cal. App. 4th 658, 675 (2005)

(quoting Navellier, 29 Cal. 4th at 95 n.11); Navellier, 29 Cal.

4th at 93 (“[T]he statute poses no obstacle to suits that possess

minimal merit.”). To establish “minimal merit,” the plaintiff

need only “state and substantiate a legally sufficient claim.”

Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 746

(2003); Mann v. Quality Old Time Serv., Inc., 120 Cal. App.

4th 90, 105 (2004) (“A plaintiff is not required to prove the

specified claim to the trial court; rather, so as to not deprive

the plaintiff of a jury trial, the appropriate inquiry is whether

the plaintiff has stated and substantiated a legally sufficient

claim.”) (internal quotation marks omitted). “Put another way,

the plaintiff must demonstrate that the complaint is both

legally sufficient and supported by a sufficient prima facie

showing of facts to sustain a favorable judgment if the evi-

dence submitted by the plaintiff is credited.” Wilson v. Par-

ker, Covert & Chidester, 28 Cal. 4th 811, 821 (2002) (internal

quotation marks omitted).

While a court’s evaluation of a claim under the anti-SLAPP

statute has been called a “summary-judgment-like procedure,”

see Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260,

278 (2006), a motion to strike does not impose an initial bur-

den of production on the moving defendant. Tuchscher Dev.

Enters., Inc. v. San Diego Unified Port Dist., 106 Cal. App.

MINDYS COSMETICS v. DAKAR 9599

4th 1219, 1238-40 (2003). The applicable burden “is much

like that used in determining a motion for nonsuit or directed

verdict, which mandates dismissal when no reasonable jury

could find for the plaintiff.” Metabolife Int’l, 264 F.3d at 840

(internal quotations omitted). The court “does not weigh the

credibility or comparative probative strength of competing

evidence,” but “should grant the motion if, as a matter of law,

the defendant’s evidence supporting the motion defeats the

plaintiff’s attempt to establish evidentiary support for the

claim.” Wilson, 28 Cal. 4th at 821; see also Wilcox v. Supe-

rior Court, 27 Cal. App. 4th 809, 828 (1994), overruled on

other grounds by Equilon Enters. v. Consumer Cause, Inc., 29

Cal. 4th 53 (2002) (citing Carson v. Facilities Dev. Co., 36

Cal. 3d 830, 838-39 (1984)); Coll. Hosp. Inc. v. Superior

Court, 8 Cal. 4th 704, 718 (1994) (“[T]he motion required by

[the statute] operates like a demurrer or motion for summary

judgment in ‘reverse,’ . . . [requiring] the plaintiff to demon-

strate that he possesses a legally sufficient claim which is sub-

stantiated, that is, supported by competent, admissible

evidence.”) (some internal quotation marks omitted).

2. Application

[7] As a preliminary matter, we note that under California

law, Kamran cannot use the litigation privilege to defend

against Mindys’ claims. See Cal. Civ. Code § 47(b). The liti-

gation privilege “grants absolute immunity from tort liability

for communications made in relation to judicial proceedings.”

Jarrow Formulas, 31 Cal. 4th at 737. “The usual formulation

is that the privilege applies to any communication (1) made

in judicial or quasi-judicial proceedings; (2) by litigants or

other participants authorized by law; (3) to achieve the objects

of the litigation; and (4) that have some connection or logical

relation to the action.” Silberg v. Anderson, 50 Cal. 3d 205,

212 (1990). Although § 47(b) encompasses “official proceed-

ings,” it is not coextensive with the anti-SLAPP statute. See

Kibler, 39 Cal. 4th at 201-02 (“The [§ 47(b)] privilege is a

9600 MINDYS COSMETICS v. DAKAR

substantive rule of law, whereas the anti-SLAPP statute is a

procedural device to screen out meritless claims.”).

[8] The trademark registration application was not filed in

anticipation of litigation, nor was it intended to instigate offi-

cial investigation into wrongdoing. See Hagberg v. Cal. Fed.

Bank FSB, 32 Cal. 4th 350, 369 (2004). Further, California

courts of appeal have concluded that the litigation privilege

does not protect an attorney from a suit by a former client

because if it did, “no malpractice suit could be brought.” See

Kolar, 145 Cal. App. 4th at 1541; Mattco Forge, Inc. v.

Arthur Young & Co., 5 Cal. App. 4th 392, 407 (1992).

a. Malpractice and Breach of Fiduciary Duty Claims

Mindys alleges that Kamran committed malpractice and

breached his fiduciary duty by representing Mindys and

Sonya Dakar simultaneously. Mindys alleges that Kamran

failed to protect Israel and Natan’s ownership interests when

he registered the trademarks in Sonya’s name and that Kam-

ran has refused to turn over the client file to Israel and Natan.

[9] Mindys has made a sufficient prima facie showing of

facts supporting its claims for malpractice and breach of fidu-

ciary duty to withstand a motion to strike under the anti-

SLAPP statute. Kamran contends that he represented only

Mindys at all relevant times, but if Mindys’ evidence is cred-

ited Kamran was at least negligent in determining who had

authority to act on behalf of Mindys. Kamran admits that he

took instructions to register the trademarks from Yigal,

Donna, Mimi, and Sonya. Israel states in his declaration that

Sonya was never a shareholder of Mindys and Kamran never

inquired whether Yigal, Donna, or Mimi, who were share-

holders, had actual authority to act on behalf of the company.

Mindys also introduced evidence that in January 2002, Yigal

assigned away his shares in Mindys, and thus as of that time

he was only an employee of the company. If this is true, Yigal

had no authority to give instructions to Kamran on behalf of

MINDYS COSMETICS v. DAKAR 9601

Mindys. Moreover, according to Israel and Natan, Donna and

Mimi were minority shareholders and therefore had no

authority to take action on behalf of Mindys without Israel or

Natan’s approval. Mindys has thus made at least a minimal

showing that Kamran did not “use such skill, prudence, and

diligence as lawyers of ordinary skill and capacity commonly

possess and exercise in the performance of the tasks which

they undertake.” Lucas v. Hamm, 56 Cal. 2d 583, 591 (1961).

Crediting the evidence submitted by Mindys, as we are

required to do, Mindys has demonstrated a “reasonable proba-

bility,” within the meaning of the anti-SLAPP statute, of pre-

vailing on its malpractice and breach of fiduciary duty claims.

b. Fraudulent Concealment and Conversion Claims

[10] Mindys alleges claims of fraudulent concealment and

conversion based on its contention that the registration of the

trademarks in Sonya’s name deprived Mindys of its “lawful

ownership interests in the subject trademarks.” Mindys has

made a sufficient prima facie showing of facts supporting

both claims to withstand an anti-SLAPP motion to strike.

When there is a fiduciary relationship between two parties,

“any material concealment or misrepresentation will amount

to fraud sufficient to entitle the party injured thereby to an

action.” Ford v. Shearson Lehman Am. Express, Inc., 180 Cal.

App. 3d 1011, 1020 (1986). Natan states in his declaration

that Kamran “never advised Mindys Cosmetics, Inc. of the

legal consequences to Mindys Cosmetics’ intellectual prop-

erty rights that the [trademark registrations] were about to

expire or be transferred to Sonya Dakar.” Kamran contends

that he emailed Natan about the trademark registration, but at

this phase we must credit the evidence submitted by Mindys.

Although the tort of fraudulent concealment usually requires

a showing of intent to defraud, see, e.g., Kaldenbach v. Mut.

of Omaha Life Ins. Co., 178 Cal. App. 4th 830, 850 (2009),

Mindys’ claim is grounded, at least in part, on constructive

fraud. An action for constructive fraud does not require a

9602 MINDYS COSMETICS v. DAKAR

showing of intent to defraud. See, e.g., Quintilliani v. Man-

nerino, 62 Cal. App. 4th 54, 70 (1998).

“Conversion is the wrongful exercise of dominion over the

property of another.” Oakdale Vill. Group v. Fong, 43 Cal.

App. 4th 539, 543 (Cal. Ct. App. 1996). The elements of a

conversion claim are (1) the plaintiff’s ownership or right to

possession of the property at the time of the conversion; (2)

the defendant’s conversion by a wrongful act or disposition of

property rights; and (3) damages. Id. at 543-44. It is necessary

to show that the alleged converter has assumed control over

the property “or that the alleged converter has applied the

property to his own use.” Id. When Kamran registered Sonya

Dakar as the owner of the trademarks, she began requesting

license fees from the company.

[11] If Sonya did not have an ownership right over the

trademark, as Israel and Natan contend, Kamran may have

caused a wrongful appropriation of trademark rights held by

Mindys.

[A]ny act of dominion wrongfully exerted over the

personal property of another inconsistent with the

owner’s rights thereto constitutes conversion. . . .

Where the conversion is the result of the acts of sev-

eral persons, which, though separately committed,

all tend to the same end, there is a joint conversion.

. . . If the principal is a wrong-doer, the agent is a

wrong-doer also.

McCafferty v. Gilbank, 249 Cal. App. 2d 569, 576 (Cal. Ct.

App. 1967) (internal quotation marks omitted). Although it is

a close question, we hold that, under a generous interpretation

of the alleged facts, there is a reasonable probability that

Kamran was an agent of Sonya such that he, along with

Sonya, could be held liable for conversion.

MINDYS COSMETICS v. DAKAR 9603

Conclusion

For the foregoing reasons, we affirm the district court’s

denial of Kamran’s anti-SLAPP motion to strike Mindys’

claims for malpractice, breach of fiduciary duty, fraudulent

concealment, and conversion.

AFFIRMED.