Maleti v. Wickers ( 2022 )

Filed 9/9/22 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CAROL MALETI, H048393
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 19CV02276)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
RODNEY W. WICKERS et al., [NO CHANGE IN JUDGMENT]
Defendants and Appellants.
THE COURT:
The petition for rehearing filed on behalf of appellants Law Office of Rodney W.
Wickers, Rodney W. Wickers, and Christina M. Wickers is denied.
The petition for rehearing filed on behalf of respondent and cross-appellant Carol
Maleti is denied.
On the court’s own motion, it is ordered that the opinion filed August 15, 2022, be
modified as follows:
On page 15, first full paragraph, fifth line:
Delete “resolved” and replace it with “decided”
On page 17, in the heading identified as (1):
Delete “Resolved” and replace with “Terminated”; delete “Resolution of”; after
“Was” add “Terminated”
On page 18, second full paragraph, following the first sentence, delete the
parenthetical citation, and insert the following:
As the Supreme Court has explained, “ ‘[w]hether a prior action was terminated
favorably tends to show the innocence of the defendant in the prior action . . . [, an issue]
not affected by the objective tenability of the claim. In short, these two elements of the
malicious prosecution tort serve different purposes, and the legal tenability of the
underlying action is not the standard by which to judge whether the action was terminated
in [plaintiff's] favor.’ [Citation.]” (Crowley, supra, 8 Cal.4th at p. 686.)
On page 19, footnote 7, first sentence:
Delete “resolution on” and replace with “disposition of”
On page 20, first partial paragraph, first partial sentence:
Delete “resolved” and replace with “terminated”
On page 20, first partial paragraph, first full sentence:
Delete “resolved” and replace with “disposed of”
On page 22, second full paragraph, fourth sentence:
Delete “resolved” and replace with “disposed of”
On page 23, first partial paragraph, second full sentence:
Delete “resolved” and replace with “disposed of”
On page 33, first partial paragraph, second full sentence, after “remand” and
before the comma, insert the following:
(see § 425.16, subd. (b)(3))
2
On page 38, delete the entire second paragraph, except for footnote 14 and
footnote 15. Before footnote 14, insert the following sentence:
In their memoranda filed below in support of their anti-SLAPP motion, Attorneys
failed to address the issue of probable cause for the initiation and prosecution of the six
Easement Claims against the Maleti Respondents.
Following that new sentence and the existing footnote 14, and before the existing
footnote 15, insert the following sentence:
Further, while Attorneys in their appellate briefs—citing the joint declaration of
Rodney Wickers and Christina Wickers—argue that probable cause existed because
Maleti allegedly (1) created an ambiguity concerning easement rights in his deed to
Farkas, and (2) later attempted to conceal his alleged agreement with Farkas, they do not
address how it was objectively tenable to initiate and prosecute the Easement Claims
against the Maleti Respondents when they no longer held any interest in the subject
properties.
On page 39, at the end of the first paragraph, insert new footnote 16 as follows:
In concluding that Carol made a prima facie showing that the six Easement Claims
were not supported by probable cause, we make three additional observations. First, in
reaching this conclusion—and notwithstanding that Attorneys’ appellate briefs contained
only two citations to the record in support of their probable cause argument, one being
the joint declaration and the other being to an apparent legal description that is illegible—
we have considered the entire record, including the evidence presented by Attorneys
below in support of their special motion to strike. Second, in their petition for rehearing,
Attorneys argued that there was significant evidence below supporting probable cause for
asserting claims against the Maleti Respondents. We note that, although Attorneys’
appellate briefs contained only two citations to the record concerning the probable cause
element, their petition included at least 15 new citations to the appellate record that could
have, and should have, been included in their briefs on appeal. (See Gentis v. Safeguard
Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308 [“arguments, including
3
insufficiency of the evidence, cannot be raised for the first time in a petition for
rehearing”].) Third, our conclusion that Carol made a prima facie showing of the
element of absence of probable cause is, of course, not the final word in the litigation.
Our decision only permits Carol’s malicious prosecution claim to go forward. It is up
to the trial court to determine ultimately whether any or all of the six Easement Claims
were or were not objectively tenable, based upon all evidence presented by the parties.
(See § 425.16, subd. (b)(3) [“[i]f the court determines that the plaintiff has established
a probability that he or she will prevail on the claim, neither that determination nor the
fact of that determination shall be admissible in evidence at any later stage of the case”];
see also Rasmussen v. Superior Court (2011) 51 Cal.4th 804, 808 [conclusion that trial
court had erroneously granted defendant’s anti-SLAPP motion did not result in a finding
that the action was finally decided in the plaintiff’s favor]; Mendoza v. Wichmann (2011)
194 Cal.App.4th 1430, 1448, fn. 5 [in reviewing order denying special motion to strike
malicious prosecution claim, the trial court’s “prior rulings did not establish probable
cause as a matter of law”].)
There is no change in the judgment.
4
BAMATTRE-MANOUKIAN, ACTING P.J.
DANNER, J.
WILSON, J.
Maleti v. Wickers et al.
H048393
Filed 8/15/22 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CAROL MALETI, H048393
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 19CV02276)
v.
RODNEY W. WICKERS et al.,
Defendants and Appellants.
I. INTRODUCTION
At the time of his death in November 2013, Andrew Farkas (Farkas) owned Santa
Cruz County property, Parcel 5 and Parcel 18. His widow, Collette McLaughlin
(McLaughlin), brought a probate petition to establish and enforce an access easement
benefiting that property. In the first amended petition, McLaughlin named several
neighboring landowners in the petition. She later added Sal Maleti (Maleti) and his
corporation, the Sal Maleti Corporation (Maleti Corp.), as respondents. Maleti Corp. had
owned Parcel 18 and neighboring property many years earlier. Maleti Corp. sold Parcel 18
to Farkas in 1993; after 2000, the corporation owned no property in the vicinity of the
Farkas property.
McLaughlin asserted nine claims against Maleti and Maleti Corp. (hereafter,
collectively, the Maleti Respondents). Each of the nine claims was disposed of in favor of
the Maleti Respondents: five after McLaughlin failed to amend the probate petition
following the sustaining of a demurrer with leave to amend; one after the sustaining of a
demurrer without leave to amend; and three after the granting of summary judgment.
The present lawsuit for malicious prosecution and abuse of process was then brought
by Maleti’s executor, Carol Maleti (Carol).1 Carol named as defendants McLaughlin and
the attorneys who had represented her in the probate proceeding, Law Office of Rodney W.
Wickers, Rodney W. Wickers, and Christina M. Wickers (collectively, Attorneys). Carol
alleged, inter alia, that McLaughlin and Attorneys brought the probate proceeding against
the Maleti Respondents without probable cause and with malice, and that the claims alleged
in that proceeding were terminated in their favor on the merits.
Attorneys filed a special motion to strike the two claims alleged in the complaint
under Code of Civil Procedure section 425.16 (special motion to strike, or anti-SLAPP
motion).2 There was no dispute that the claims were based upon Attorneys’ exercise of
constitutionally protected activity, thereby satisfying the first prong of the anti-SLAPP
statute. Attorneys argued that Carol could not satisfy her burden of showing a probability
that she would prevail on the two claims. In an order filed September 15, 2020 (the Order),
the trial court ruled in favor of Attorneys on Carol’s claim for abuse of process, striking that
cause of action. The court, however, denied Attorneys’ special motion to strike the
malicious prosecution claim, concluding that Carol had shown a probability of succeeding
on that claim. The court also denied Attorneys’ request for statutory attorney fees.
1
We refer to Carol Maleti by her first name for clarity. We mean no disrespect in
doing so. (See Rubinstein v. Rubinstein (2000) 81 Cal.App.4th 1131, 1136, fn.1.)
2
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1 (Jarrow Formulas).)
Further statutory references are to the Code of Civil Procedure unless otherwise
stated.
. 2
Attorneys challenge the Order denying the special motion to strike the malicious
prosecution claim and the denial of attorney fees. Carol filed a cross-appeal, challenging the
Order striking the abuse of process claim.
We conclude that Carol satisfied her burden of establishing that her malicious
prosecution claim had “ ‘‘a minimum level of legal sufficiency and triability’ [citation].”
(Jarrow Formulas, supra, 31 Cal.4th at p. 738.) The first element of the tort is the favorable
termination of the underlying proceeding on the merits. We hold that a malicious
prosecution plaintiff, who has succeeded in all respects in defending a multiple-claim case,
need not show that all such claims were resolved on the merits as long as at least one claim
was terminated on the merits. Because Carol showed that six of the nine claims in the
underlying probate proceeding were terminated on the merits in favor of the Maleti
Respondents, she established the favorable termination element. We conclude further that
Carol satisfied her burden of showing the legal sufficiency and an evidentiary basis
supporting the elements of absence of probable cause and malice required for malicious
prosecution. Accordingly, we conclude the court did not err in denying the special motion
to strike the first cause of action for malicious prosecution.
We conclude further that Carol did not adequately plead a claim for abuse of process.
Therefore, we reject Carol’s cross-appeal, concluding the trial court properly granted the
motion to strike the second cause of action for abuse of process.
Lastly, we conclude the trial court erred in denying Attorneys’ request for attorney
fees and costs under section 425.16, subdivision (c)(1) as the prevailing defendant. A
defendant who prevails in part in an anti-SLAPP motion is generally entitled to an award of
attorney fees and costs related to that partial success. In its denial of an award, the court
below found that Attorneys derived no practical benefit from successfully moving to strike
the abuse of process claim. Because this finding is not supported by the record, we
conclude the court was required to award reasonable fees and costs in connection with
Attorneys’ successful challenge to the abuse of process claim.
. 3
We will therefore reverse the Order only insofar as the trial court denied attorney fees
and costs to Attorneys. We will remand the case to the trial court for further proceedings,
including in that remand a directive that the court decide Attorneys’ request for fees and
costs in connection with their partially successful special motion to strike.
II. PROCEDURAL HISTORY
A. Background Concerning Farkas Probate Proceeding
Maleti was a real estate broker who received his California license in or about 1976.
Maleti Corp., established in 1984, was solely owned and operated by Maleti and was
engaged in the purchase and sale of real property. In 1988, Maleti Corp. purchased from
Pacific Western Bank four real estate parcels in Boulder Creek, Santa Cruz County, that are
referred to by the parties as Parcels 18, 19, 21, and 22. The parcels are located as follows:
. 4
In 1992, Maleti Corp. sold three of the four parcels (i.e., Parcels 18, 19, and 22). In
April, Parcel 22 was sold to Andrew Opler. In May, Maleti Corp. sold Parcel 19 to John
Willheim; at the time of the probate proceedings relevant here, Parcel 19 was owned by
Ronald Wilson (Wilson) and Harold Patrick (Patrick). In August 1992, Maleti Corp. sold
Parcel 18 to Farkas. Maleti was the listing agent; he did not represent Farkas. Farkas
owned Parcel 18 until his death on November 1, 2013. At that time, Farkas also owned
Parcel 5, located to the east of Parcel 18. In April 2000, Maleti Corp. sold Parcel 21 to
Kendall and Renee King (collectively, the Kings).
. 5
B. The Farkas Probate Proceeding
Attorneys, on behalf of McLaughlin as administrator of the Farkas Estate, filed a
petition for probate in January 2014. On May 12, 2016, Attorneys filed a “Petition to
Establish Estate’s Claim of Ownership and for Order Directing its Transfer to Estate
Pursuant to Probate Code Section 850.” McLaughlin alleged that at the time of his death,
“[Farkas] held a prescriptive easement for ingress and egress with respect to the dirt road . . .
located within [Parcels 19 and 21] . . . [and she was seeking] to legally record this
easement.” It was alleged further that the Farkas Estate’s property, Parcel 5, used primarily
for timber harvesting, was only accessible by the subject dirt road easement. McLaughlin
requested that “[o]wnership of such property easement for ingress and egress over the dirt
access road . . . immediately be transferred to [her], as administrator of decedent’s estate.”
Attorneys filed a First Amended Petition3 in July 2016, naming the owners of
Parcel 19 (Wilson and Patrick) and Parcel 21 (the Kings), as respondents. This First
Amended Petition, like the original Petition, sought an order transferring to the Farkas
Estate a prescriptive easement for ingress and egress by a dirt road over Parcel 19 and
Parcel 21. It was also alleged that the Estate’s property, Parcel 5 and Parcel 18, was only
accessible by the subject dirt road easement. Thereafter, Attorneys filed second and third
amended petitions; neither pleading named Maleti or Maleti Corp. as respondents.
In April 2017, Attorneys filed a Fourth Amended Petition on behalf of McLaughlin,
naming Wilson and Patrick, the Kings, Maleti and Maleti Corp. as respondents. The Fourth
Amended Petition included 10 claims—nine of which were directed against the Maleti
Respondents—related to the Estate of Farkas’s asserted easement rights over a private
roadway identified in the pleading as the “ ‘Tradewinds Route,’ ” namely, (1) easement by
3
The Petition and the five amended Petitions were each captioned “Petition to
Establish Estate’s Claim of Ownership and for Order Directing its Transfer to Estate
Pursuant to Probate Code Section 850.”
. 6
prescription, (2) easement by implication, (3) easement by implied conveyance,
(4) easement by express grant, (5) easement by necessity, (6) easement by estoppel,
(7) declaratory relief to establish easement (not alleged against the Maleti Respondents),
(8) negligence by interfering with Farkas’s use of the easement for ingress and egress,
(9) slander of title by denial of Farkas’s existing easement and making false statements
concerning it, and (10) to pierce the corporate veil of Maleti Corp. to establish that it was
Maleti’s alter ego (against Maleti only). (The first six causes of action are collectively
referred to as the Easement Claims.)
The Maleti Respondents filed a demurrer to the Fourth Amended Petition. In
September 2017, the probate court sustained the demurrer with leave to amend as to all nine
causes of action.
Attorneys filed a Fifth Amended Petition on behalf of McLaughlin that tracked the
same 10 causes of action that had been alleged in the Fourth Amended Petition. The first
five Easement Claims were no longer alleged against the Maleti Respondents. The
negligence claim included allegations that the Maleti Respondents breached duties to Farkas
of (1) not interfering with his use of the Tradewinds Route and (2) preparing a grant deed of
Parcel 18 without ambiguity regarding easements to and from that property. The slander of
title claim included allegations, inter alia, that the Maleti Respondents, in a December 1999
fax to the Kings’ agent, “disparaged Farkas’ property rights to the Tradewinds Route.”
The Maleti Respondents filed a demurrer of to all four causes of action alleged
against them in the Fifth Amended Petition. In February 2018, the probate court sustained
the demurrer without leave to amend as to the sixth cause of action for easement by
estoppel, and it overruled the demurrer to the eighth through tenth causes of action.
Thereafter, the Maleti Respondents filed a motion for summary judgment as to the
remaining causes of action, and on October 11, 2018, the court granted summary judgment.
Specifically, the court found that (1) the eighth cause of action for negligence was barred by
the applicable statute of limitations (see § 338); (2) the ninth cause of action for slander of
. 7
title was barred by the applicable statute of limitations (see ibid.); and (3) the tenth cause of
action to pierce the corporate veil was not maintainable because it was a theory of vicarious
liability, not a freestanding claim, and because no substantive claims existed against the
Maleti Respondents, “there [was] no predicate liability for which Mr. Maleti can be
vicariously liable.”
A trial involving respondents Wilson, Patrick, and the Kings on the claims remaining
against them occurred in October 2018. The court granted respondents’ motion for
judgment pursuant to section 631.8. The court found that McLaughlin had failed to meet
her burden of proof with respect to any of the claims, and that she had not established that
Parcel 18 owned by the Farkas Estate had an access easement over the Tradewinds Route
that encumbered either Parcel 21 (the Kings) or Parcel 19 (Wilson/Patrick).
On February 19, 2019, the court entered judgment in favor of the Maleti
Respondents.
C. The Current Litigation
In March 2019, shortly after the judgment was entered in the underlying probate
proceeding, Maleti passed away. On July 31, 2019, Carol, as Maleti’s executor, filed a
complaint for malicious prosecution and abuse of process against Attorneys and
McLaughlin. (McLaughlin and Attorneys are collectively referred to as the Defendants.)
Carol alleged that the underlying proceeding involved “utterly meritless” probate claims
brought by the Defendants that they knew were time-barred but that they prosecuted for
nearly 18 months until they were dismissed.
Carol alleged in the first cause of action for malicious prosecution that when the
Defendants filed the Fourth and Fifth Amended Petitions, they had no factual or legal basis
for asserting any of the claims alleged against the Maleti Respondents, and therefore no
reasonable attorney would have thought that the claims were legally tenable. The claims
were prosecuted by the Defendants with malice and bad faith for the purpose of extracting a
settlement from the Maleti Respondents that bore no relationship to the merits of the claims.
. 8
The Maleti Respondents achieved a favorable and final termination on the merits as to each
of the claims alleged.
In the second cause of action for abuse of process, Carol alleged that the Defendants
engaged in willful acts against the Maleti Respondents in the probate proceedings by using
the court process in improper ways to obtain a collateral advantage against them. The
Defendants improperly named the Maleti Respondents as respondents despite there being no
factual or legal basis for doing so and with knowledge that Maleti was in poor health.
D. Attorneys’ Special Motion to Strike
On September 30, 2019, Attorneys filed a special motion to strike the complaint.
They asserted that both causes of action arose out of the exercise of protected free speech
and petitioning activity in the representation of their client in a probate proceeding.
Attorneys asserted further that Carol was required to show a probability of prevailing. Carol
opposed the special motion to strike, contending there was a probability she would succeed
on her claims.
After a hearing on the special motion to strike, the court issued the Order on
September 15, 2020. The court (1) noted that Carol had conceded that the claims alleged in
the complaint arose out of activity protected under the anti-SLAPP statute; (2) held that
Carol had shown a probability of prevailing as to the elements of the first cause of action for
malicious prosecution and therefore denied the special motion to strike as to that claim;
(3) granted the special motion to strike as to the second cause of action for abuse of process;
and (4) denied Attorneys’ request for attorney fees and costs in connection with the motion
to strike.
Attorneys filed a timely appeal from the Order. Carol filed a timely cross-appeal
from the Order.
. 9
III. DISCUSSION
A. Anti-SLAPP Motions to Strike
A SLAPP suit is one in which a plaintiff “seeks to chill or punish a party’s exercise
of constitutional rights to free speech and to petition the government for redress of
grievances. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) SLAPP suits
may be disposed of summarily by a special motion to strike under section 425.16, which is
“a procedure where the trial court evaluates the merits of the lawsuit using a summary-
judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc.
v. Delfino (2005) 35 Cal.4th 180, 192.) The statute provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right of petition or
free speech under the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) The Legislature has directed that the language of the
statute be “construed broadly.” (§ 425.16, subd. (a).)
Subdivision (e) of section 425.16 (§ 425.16(e)) identifies four general categories of
protected activities of petition or free speech. The first two categories are relevant here:
“(1) any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; [and] (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.”
“[S]ection 425.16 potentially may apply to every malicious prosecution action,
because every such action arises from an underlying lawsuit, or petition to the judicial
branch. By definition, a malicious prosecution suit alleges that the defendant committed a
tort by filing a lawsuit. [[Citation.]” (Jarrow Formulas, supra, 31 Cal.4th at pp. 734-735,
fn. omitted.) Likewise, since “the essence of the tort of abuse of process . . . [is] some
misuse of process in a prior action[,] . . . it is hard to imagine an abuse of process claim that
. 10
would not fall under the protection of the [anti-SLAPP] statute.” (Booker v. Rountree
(2007) 155 Cal.App.4th 1366, 1370.)
A motion to strike under section 425.16, subdivision (b)(1) is analyzed and resolved
by “the court . . . engag[ing] in a two-step process. First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is one arising
from protected activity. The moving defendant’s burden is to demonstrate that the act or
acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of
petition or free speech under the United States or California Constitution in connection with
a public issue,’ as defined in the statute. [Citation.] If the court finds such a showing has
been made, it then determines whether the plaintiff has demonstrated a probability of
prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making
these determinations considers ‘the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.’ ” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
To meet this burden under the second prong of the statute, “the plaintiff ‘must
demonstrate that the complaint is both legally sufficient and supported by a sufficient prima
facie showing of facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.
4th 811, 821 (Wilson), superseded by statute as stated in Hutton v. Hafif (2007) 150
Cal.App.4th 527, 547-548.) The plaintiff must show that its claim has “at least ‘minimal
merit.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057,
1061 (Park).)
Thus, “[o]nly a cause of action that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a
SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th
82, 89, original italics.)
. 11
“Review of an order granting or denying a motion to strike under section 425.16 is de
novo. [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits . . .
upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither
‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).) In
performing our de novo review, we “ ‘conduct[] an independent review of the entire record.
[Citations.]’ ” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.) “[O]ur
review is conducted in the same manner as the trial court in considering an anti-SLAPP
motion.” (Ibid.) We review the trial court’s decision, not its rationale. (See City of
Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1307.)
B. Malicious Prosecution: Protected Activity
It is clear that the conduct alleged in the complaint arises out of protected activity.
(See Jarrow Formulas, supra, 31 Cal.4th at pp. 734-735 [malicious prosecution suits arise
out of protected activity under the anti-SLAPP statute].) Carol conceded below that
Attorneys had met their burden of establishing that her malicious prosecution claim arose
out of constitutionally protected conduct under the anti-SLAPP statute.
C. Malicious Prosecution (Appeal): Probability of Prevailing
We address whether Carol met her burden of establishing a probability of prevailing
on her malicious prosecution claim. (See § 425.16, subd. (b)(1).) Satisfying this second
prong “requires only ‘a minimum level of legal sufficiency and triability’ [citation].”
(Jarrow Formulas, supra, 31 Cal.4th at p. 738.)4
4
To defeat the anti-SLAPP motion, Carol was required to establish “ ‘that the
complaint is both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’
continued
. 12
1. Malicious Prosecution Generally
As the California Supreme Court has explained: “The malicious commencement of a
civil proceeding is actionable because it harms the individual against whom the claim is
made, and also because it threatens the efficient administration of justice. The individual is
harmed because he [or she] is compelled to defend against a fabricated claim which not only
subjects him [or her] to the panoply of psychological pressures most civil defendants suffer,
but also to the additional stress of attempting to resist a suit commenced out of spite or ill
will, often magnified by slanderous allegations in the pleadings. In recognition of the wrong
done the victim of such a tort, settled law permits him [or her] to recover the cost of
defending the prior action including reasonable attorney’s fees [citations], compensation for
injury to his [or her] reputation or impairment of his [or her] social and business standing in
the community [citations], and for mental or emotional distress [citation].” (Bertero v.
National General Corp. (1974) 13 Cal.3d 43, 50-51, fn. omitted (Bertero).) Although
“malicious prosecution is not a tort ‘favored by the law’ . . . [t]his convenient phrase should
not be employed to defeat a legitimate cause of action.” (Id. at p. 53.)
There are four essential elements to a malicious prosecution claim. First, there had to
have been a prior action “commenced by or at the direction of the defendant [that] was
pursued to a legal termination in . . . [the] plaintiff’s[] favor.” (Bertero, supra, 13 Cal.3d at
[Citations.]” (Wilson, supra, 28 Cal. 4th at p. 821.) The court below in the Order denying
the special motion to strike the malicious prosecution claim found the complaint to be
legally sufficient, stating that Carol had properly pleaded favorable termination, lack of
probable cause, and malice. But the court did not find that Carol had made a sufficient
prima facie evidentiary showing to support judgment in her favor on the claim. Because (1)
our review of the Order is de novo, (2) the parties addressed the second anti-SLAPP prong
extensively below, and (3) the parties have briefed the issue on appeal, we will consider
here whether Carol’s complaint was legally sufficient and whether she made a sufficient
prima facie showing with admissible evidence to support a favorable judgment on the
malicious prosecution claim. (See Muddy Waters, LLC v. Superior Court (2021) 62
Cal.App.5th 905, 922.)
. 13
p. 50.) (We will refer to this as the favorable termination element.) Second, the defendant
must have brought the prior action without probable cause. (Ibid.) Third, the defendant
must have initiated the prior action with malice. (Ibid.; see also Casa Herrera, Inc. v.
Beydoun (2004) 32 Cal.4th 336, 341 (Casa Herrera).) Fourth, the plaintiff must show
resulting damage, which may include out-of-pocket losses of attorney fees and costs, as well
as emotional distress and injury to reputation. (Jackson v. Yarbray (2009) 179 Cal.App.4th
75, 90-91.)5
2. Favorable Termination on the Merits
a. Applicable Law
To establish a claim for malicious prosecution, “termination of the underlying action
must reflect on the defendant’s innocence. ‘If [the termination] is of such a nature as to
indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the
requirement. If, however, the dismissal is on technical grounds, for procedural reasons . . .
it does not constitute a favorable termination.’ [Citations.] ‘The theory underlying the
requirement of favorable termination is that it tends to indicate the innocence of the accused,
and coupled with the other elements of lack of probable cause and malice, establishes the
tort [of malicious prosecution].’ [Citations.]” (Lackner v. LaCroix (1979) 25 Cal.3d 747,
750 (Lackner).) The malicious prosecution plaintiff need not prove “that the prior
proceeding was favorably terminated following trial on the merits. However, termination
must reflect on the merits of the underlying action. [Citation.]” (Ibid., original italics.)
Thus, it is important to recognize that to establish the tort, favorable termination means
5
Although Attorneys argued below that the claim failed because Carol had not
adequately shown damage, they do not raise this question on appeal. It is therefore
abandoned. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d
211, 216, fn. 4.) In any event, Carol presented evidence that Maleti had paid over $283,000
in attorney fees and costs in defending the claims in the underlying proceeding.
. 14
more than showing simply that the plaintiff “ ‘prevailed in an underlying action. . . . 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.’ [Citation.]” (Casa Herrera,
supra, 32 Cal.4th at p. 342.) “To determine ‘whether there was a favorable termination,’ we
‘look at the judgment as a whole in the prior action.’ ” (Id. at p. 341.)
Thus, the termination of a case by a discretionary dismissal for failure to prosecute
“reflect[s] on the merits of the action. . . . The reflection arises from the natural assumption
that one does not simply abandon a meritorious action once instituted.” (Minasian v. Sapse
(1978) 80 Cal.App.3d 823, 827 (Minasian).) Other instances of favorable termination
include cases where the prior case was resolved against the malicious prosecution defendant
(1) by summarily disposing of contract and fraud claims through application of the parol
evidence rule, a matter of substantive law (Casa Herrera, supra, 32 Cal.4th at pp. 342-345);
(2) after a judgment of nonsuit because the plaintiff failed to designate an expert on
causation (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 874); (3) by summary judgment
that reflected on the merits of the claim (Sierra Club Foundation v. Graham (1999) 72
Cal.App.4th 1135, 1149-1150 (Sierra Club)); and (4) by court dismissal because the claims
were barred by the litigation privilege (Berman v. RCA Auto Corp. (1986) 177 Cal.App.3d
321, 323-326.)
On the other hand, termination based upon the action being barred by the statute of
limitations is “deemed a technical or procedural as distinguished from a substantive
termination.” (Lackner, supra, 25 Cal.3d at p. 751.) Similarly, dismissal after the
sustaining of a demurrer without leave to amend is not on the merits where it was based
upon the jurisdictional defect of lack of standing. (Hudis v. Crawford (2005) 125
Cal.App.4th 1586, 1590-1592.) And “a dismissal resulting from negotiation, settlement or
agreement is generally not deemed a favorable termination of the proceedings. [Citations.]”
(Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335-1336; see also Minasian, supra, 80
. 15
Cal.App.3d at p. 827, fn. 4 [“dismissal [through settlement] reflects ambiguously on the
merits of the action”].)
A voluntary dismissal of the prior suit by the plaintiff—not resulting from a
settlement—will, in general, constitute a favorable termination. (Sycamore Ridge
Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1401.) “[A] voluntary
dismissal, even one without prejudice, may be a favorable termination which will support an
action for malicious prosecution. [Citation.] ‘In most cases, a voluntary unilateral dismissal
is considered a termination in favor of the defendant in the underlying action . . . .’
[Citations.]” (Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808.) In many instances the
dismissal “may be an implicit concession that the dismissing party cannot maintain the
action and may constitute a decision on the merits.” (Eells v. Rosenblum (1995) 36
Cal.App.4th 1848, 1855 (Eells).) But “ ‘[i]t is not enough . . . merely to show that the
proceeding was dismissed.’ [Citation.] The reasons for the dismissal of the action must be
examined to determine whether the termination reflected on the merits. [Citations.]” (Ibid.)
b. Carol Showed Favorable Termination
Carol contends that she made a prima facie showing of favorable termination of the
prior suit to support her claim for malicious prosecution. She acknowledges that the claims
in the fifth amended petition for negligence and abuse of process were disposed of on the
technical or procedural ground of a statute of limitations defense and therefore were not
terminated on the merits. (See Lackner, supra, 25 Cal.3d at p. 751.)6 But Carol asserts that
6
Notwithstanding this acknowledgment, Carol argues elsewhere in her brief that the
subsequent trial and judgment in favor of the remaining respondents (Wilson, Patrick, and
the Kings) established that the negligence and slander of title claims against the Maleti
Respondents were “never viable” because Farkas never had an easement over the
Tradewinds Route. This argument—coupled with the fact that the Maleti Respondents
asserted in their summary judgment motion that the two claims (in addition to being time-
barred) were not substantively viable—suggests that Carol in fact contends that the
summary judgment of the tort claims was on the merits. At oral argument, however, Carol’s
continued
. 16
the other seven claims were disposed of on the merits by demurrer and summary judgment,
thereby satisfying the favorable termination element of Carol’s malicious prosecution claim.
Attorneys respond that Carol failed to show that the Maleti Respondents achieved a
favorable termination on the merits because their “procedural win” through the probate
court’s granting summary judgment was insufficient to support a malicious prosecution
claim. They conclude that “there was no termination of the entire action on the merits.”
(Italics added.)
Therefore, the essential issue in this case is the following: Where multiple claims
were asserted in the prior action, none was successful, and at least one claim was decided on
the merits, may the malicious prosecution plaintiff properly contend that the favorable
termination element of the tort is satisfied? We will first address this legal question. After
answering it in the affirmative, we will consider whether Carol established the element of
favorable termination for malicious prosecution.
(1) Favorable Termination Occurs if All Claims Were
Resolved in Favor of Prior-Suit Defendant and
Resolution of at Least One Claim Was on the Merits
We begin by noting that in evaluating whether there has been a favorable termination
on the merits, the court “ ‘look[s] at the judgment as a whole in the prior action . . . .’
[Citation.]” (Casa Herrera, supra, 32 Cal.4th at p. 341.) Although the disposition need not
occur after a trial of the case on the merits (ibid.), a “ ‘favorable’ termination does not occur
merely because a party complained against has prevailed in an underlying action. . . . 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
counsel confirmed that the granting of summary judgment on the negligence and slander of
title claims was based upon them being time-barred and was thus not a termination on the
merits.
. 17
would support a subsequent action for malicious prosecution.” (Lackner, supra, 25 Cal.3d
at p. 751, fn. omitted.)
The Supreme Court has held that a plaintiff may pursue a claim for malicious
prosecution where one theory in the prior suit was pursued without probable cause, even if
there was probable cause to pursue other theories. (Bertero, supra, 13 Cal.3d at pp. 55-57.)
As the high court explained, “We see no reason for permitting plaintiffs and cross-
complainants to pursue shotgun tactics by proceeding on counts and theories which they
know or should know to be groundless.” (Id. at p. 57, fn. omitted.) The Supreme Court has
reaffirmed its holding in Bertero. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 686
(Crowley) [“ ‘a malicious prosecution suit may be maintained where only one of several
claims in the prior action lacked probable cause”].) Under the Bertero rule, therefore, “[a]
claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be
based upon only some of the causes of action alleged in the underlying lawsuit.
[Citations.]” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th
313, 333 (Franklin Mint).)
Favorable termination must be distinguished from the lack of probable cause element
of the tort of malicious prosecution. (See Crowley, supra, 8 Cal.4th at p. 686 [“ ‘[w]hether a
prior action was terminated favorably tends to show the innocence of the defendant in the
prior action . . . [, an issue] not affected by the objective tenability of the claim’ ”].) Thus,
the fact that, under Bertero, “ ‘a malicious prosecution suit may be maintained where only
one of several claims in the prior action lacked probable cause [citation] does not alter the
rule there must first be a favorable termination of the entire action. [Citation.]’ [Citation.]”
(Crowley, supra, at p. 686, original italics.)
Thus, “favorable termination requires favorable resolution of the underlying action in
its entirety, not merely a single cause of action. [Citation.] ‘. . . [I]f the underlying plaintiff
succeeds on any of his or her claims, the favorable termination requirement is unsatisfied
and the malicious prosecution action cannot be maintained.’ [Citation.]” (Citizens of
. 18
Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 128, italics added.) Accordingly,
numerous cases have held that a malicious prosecution claim may not be maintained where
the prior-suit defendant prevailed on one or more (but not all) claims. One such case—
relied upon by Attorneys here—is Friedberg v. Cox (1987) 197 Cal.App.3d 381(Friedberg). There, two attorneys had represented client in a prior medical malpractice
action in which the client received a monetary settlement, and a total of $86,000 in fees was
earned. (Id. at p. 383.) Failing to reach agreement on the division of fees, attorney
Ingraham sued attorney Friedberg. Ingraham alleged (1) the two had entered into a joint
venture concerning the client engagement and Friedberg breached his fiduciary duty as a
coventurer warranting the imposition of punitive damages; (2) Friedberg tortiously and
maliciously induced the client to breach the contingency fee agreement between client and
Ingraham; and (3) Ingraham was entitled to $43,000 as the reasonable value of services he
rendered in the malpractice case. (Ibid.) Friedberg’s nonsuit motion was granted as to the
tort theories, and the jury then awarded Ingraham $12,900 as the reasonable value of legal
services rendered. (Id. at pp. 383-384.) Friedberg then sued Ingraham for malicious
prosecution, alleging the joint venture and tortious interference theories in the underlying
case were without probable cause and asserted with malice. (Id. at p. 384.) The appellate
court held that Ingraham’s summary judgment motion was properly granted, concluding that
the underlying action did not terminate in Friedberg’s favor because the three theories
addressed one breach of a primary right, and Ingraham was successful on one such theory.
(Id. at pp. 388-389.)
Friedberg, supra, 197 Cal.App.3d 381 and other similar authorities7 do not support
Attorneys’ position that favorable termination requires that the malicious prosecution
7
Courts in other cases have similarly held that there is no favorable termination
where the prior-suit defendant received a favorable resolution on some, but not all, causes of
action. In StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1395
continued
. 19
plaintiff show that all claims in the underlying action were unsuccessful and that each of
them was resolved on the merits. Here, unlike Friedberg and similar cases citing that case
(see, e.g., Lane v. Bell (2018) 20 Cal.App.5th 61; StaffPro, supra, 136 Cal.App.4th 1392),
no portion of the underlying probate proceeding was resolved in favor of the claimant,
McLaughlin.
We hold that where the prior-suit defendant prevailed unequivocally on all claims in
the lawsuit and at least one claim was disposed of substantively in the defendant’s favor,
there has been a “termination [that] reflect[s] on the merits of the underlying action”
(Lackner, supra, 25 Cal.3d at p. 750, italics omitted) supporting a malicious prosecution
action. Under such circumstances, the termination “reflect[s] on the defendant’s
innocence.” (Ibid.) We perceive of no reasoned basis for concluding otherwise. The mere
(StaffPro)—relied upon by Attorneys—the plaintiff in the underlying case alleged three
claims. One claim was dismissed by the plaintiff before trial, a second claim was disposed
of against the plaintiff by motion for judgment, and the plaintiff prevailed on the third claim
at trial, obtaining injunctive relief from the court. (Id. at p. 1396.) The defendant in the
prior suit then filed a malicious prosecution action alleging that two of the claims were
maintained without probable cause and with malice. (Id. at p. 1397.) The StaffPro court
held that the malicious prosecution claim was not maintainable; there had been no favorable
termination because the prior-suit plaintiff had obtained injunctive relief on the third claim.
(Id. at pp. 1400-1402.) In Dalany v. American Pacific Holding Corporation (1996) 42
Cal.App.4th 822, (Dalany), the defendant in the underlying action filed a cross-complaint
asserting various claims; some of those claims were disposed of against defendant/cross-
complainant by summary adjudication, and the remainder of the action was later settled.
(Id. at pp. 825, 826.) The plaintiff and cross-defendant in the underlying action then filed a
malicious prosecution suit asserting that the cross-complaint had been brought without
probable cause and with malice. (Id. at p. 826.) The appellate court held the cross-
complaint was concluded as a result of a negotiated settlement (id. at p. 828), and that the
cross-complaint did not terminate on the merits in favor of the prior-suit plaintiff/cross-
defendant (id. at p. 829). The Dalany court reasoned that the fact that the prior-suit cross-
defendant (malicious prosecution plaintiff) achieved partial success “ ‘ “does not alter the
rule that there must first be favorable termination of the entire action.” [Citation.]’
[Citation.]” (Id. at pp. 829-830, quoting Crowley, supra, 8 Cal.4th at p. 686, original
italics.)
. 20
fact that an entirely unsuccessful claimant (here, McLaughlin, through her Attorneys) joins
claims that are disposed of for “technical or procedural” reasons (id. at p. 751) with claims
that are disposed of on substantive grounds should not preclude a favorable termination
finding. “As a general rule, the termination of underlying civil proceedings, in order to
constitute a favorable termination for the purposes of a malicious prosecution action, must
be consistent with a finding for the defendant on substantive grounds, and must not be based
solely upon technical or procedural considerations.” (52 Am.Jur. 2d (1995) Malicious
Prosecution § 40, italics added.)
Lanz v. Goldstone (2015) 243 Cal.App.4th 441 (Lanz) supports our conclusion.
There, an attorney (Lanz), sued his former client, Garcia-Bolio, for attorney fees incurred in
a prior Marvin (Marvin v. Marvin (1976) 18 Cal.3d 660) suit. (Lanz, supra, at p. 446.)
Goldstone, an attorney, represented Garcia-Bolio and filed a cross-complaint on her behalf
alleging three causes of action (breach of fiduciary duty, declaratory relief, and professional
negligence. (Id. at pp. 446, 450, 452.) While the action was pending, Garcia-Bolio filed for
bankruptcy protection, which stayed the litigation. (Id. at p. 453.) Garcia-Bolio did not list
her breach of fiduciary duty/professional negligence claims against Lanz in the bankruptcy
schedule disclosing her actual or potential assets. (Ibid.) After the bankruptcy stay was
lifted, Lanz prevailed on the cross-complaint by a motion for judgment on the pleadings
(breach of fiduciary duty and professional negligence), and by a motion for summary
adjudication (declaratory relief). (Ibid.) Lanz then sued Goldstone for malicious
prosecution, to which the latter responded with an answer and a special motion to strike
under section 425.16. (Lanz, supra, at p. 456.) The trial court denied the special motion to
strike. (Ibid.)
On appeal, Goldstone asserted that Lanz could not show a probability of prevailing
because he could not establish any of the malicious prosecution elements. (Lanz, supra, 243
Cal.App.4th at p. 459.) Goldstone argued, inter alia, that Lanz could not establish favorable
termination of the underlying action because two of the three causes of action of the cross-
. 21
complaint (i.e., the tort claims) were dismissed because Garcia-Bolio, by virtue of failing to
list them in her bankruptcy schedule, “ ‘was procedurally barred from pursuing those claims
in the Superior Court.’ ” (Ibid., original italics.) The appellate court rejected the argument,
stating: “To begin with, we fail to see the significance of the argument, as the third claim
[for declaratory relief] in the cross-complaint was resolved on the merits, as Goldstone
essentially concedes. This ends the inquiry, as expressly held by numerous cases, including
Bertero[, supra, 13 Cal.3d 43], where the court held that where several claims are advanced
in the underlying action, each must be based on probable cause.” (Ibid.)
The appellate court in Lanz, supra, 243 Cal.App.4th at pages 461 to 462, however,
proceeded to hold that the disposition of the two tort claims under the circumstances could
be deemed ultimately by the trier of fact to have been a favorable termination on the merits.
Therefore, Lanz’s holding that one claim that was unquestionably disposed of on the merits
would support a favorable termination finding, even if other claims were disposed of on
procedural grounds (i.e., not on the merits), appears to be dictum. (Stockton Theatres, Inc.
v. Palermo (1956) 47 Cal.2d 469, 474 [obiter dictum need not be followed by appellate
courts].)
We nonetheless agree with the conclusion by the Lanz court. In doing so, however,
we note a slight difference in our view of the significance of Bertero, supra, 13 Cal.3d 43than that expressed in Lanz. The Supreme Court in Bertero held that malicious prosecution
lies where one theory in the underlying case was pursued without probable cause, even if
there was probable cause to pursue other theories. (Bertero, supra, at pp. 55-57.) Bertero
thus does not provide direct support for the proposition that favorable termination exists
where the underlying action containing multiple claims resolved uniformly against the
claimant and at least one of the claims was a disposition on the merits. (See Crowley, supra,8 Cal.4th at p. 686 [probable cause and favorable termination are separate elements and
require distinct analyses].) But the principle derived from Bertero that a plaintiff need not
pursue a malicious prosecution claim as to each cause of action in the underlying case in
. 22
which he or she prevailed (see Franklin Mint, supra, 184 Cal.App.4th at p. 333) applies with
equal force to the favorable termination element. It would make no sense to bar a malicious
prosecution suit where the party was previously sued, prevailed completely in defending
multiple claims, and achieved a substantive victory on one or more of those claims. A party
who files a multiple-claim suit, suffers a complete loss, and loses on the merits on at least
one claim—where that claim was brought without probable cause and with malice—should
not escape liability because of the fortuity that other claims were resolved on procedural or
technical grounds.
(2) Prima Facie Showing of Favorable
Termination on the Merits
Carol had the burden of establishing that her malicious prosecution claim had “at
least ‘minimal merit’ ” (Park, supra, 2 Cal.5th at p. 1061), and she was required to
“ ‘demonstrate that the complaint [was] both legally sufficient and [was] supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if [her] evidence . . .
[were] credited.’ [Citations.]” (Wilson, 28 Cal.4th at p. 821.) Attorneys, in challenging the
legal sufficiency of Carol’s complaint, argue at length that the complaint fails to allege the
favorable termination element required for malicious prosecution. They assert, inter alia,
that the allegation in the complaint that “ ‘Maleti obtained a favorable and final termination
on the merits of all claims alleged against him in the Farkas Probate Proceeding’ . . . is
demonstrably false.” (Italics omitted.) Carol does not respond to this challenge to the
complaint’s legal sufficiency.
We disagree with Attorneys’ contention that the complaint was legally insufficient
because it contained inadequate or incorrect allegations concerning the favorable
termination element. The one paragraph of the complaint (paragraph 41, quoted in the
preceding paragraph herein) must be considered in the context of the entire pleading. In the
preliminary allegations of the complaint, Carol detailed the procedural history of the
underlying probate proceeding, including the allegations of the Fourth and Fifth Amended
. 23
Petitions, the demurrers to those pleadings and the demurrer orders, and the summary
judgment motion and order. Specifically, Carol alleged, inter alia, that the Maleti
Respondents’ demurrer to all causes of action of the Fourth Amended Petition was sustained
with leave to amend; McLaughlin’s Fifth Amended Petition no longer named the Maleti
Respondents in the first five causes of action of the Easement Claims; and their demurrer to
the sixth cause of action for easement by estoppel was sustained by the court without leave
to amend. These allegations were incorporated by reference into the malicious prosecution
cause of action and supplemented paragraph 41 alleging favorable and final termination on
the merits of the underlying proceeding. (See Collins v. Thurmond (2019) 41 Cal.App.5th
879, 893-894 [noting that on demurrer, the plaintiff’s allegations were bolstered by general
factual allegations incorporated by reference].) Recognizing that a “plaintiff [opposing an
anti-SLAPP motion] need[] show only a ‘minimum level of legal sufficiency and triability’
[citation]” (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989), we conclude that Carol
demonstrated that the complaint was legally sufficient in alleging favorable termination.8
We turn next to whether Carol made an evidentiary showing that she prevailed in the
prior action and there was a substantive termination of the case in her favor. To reiterate, in
8
We conclude, post, that the disposition of the eighth through tenth causes of action
of the Fifth Amended Petition, while favorable to the Maleti Respondents, did not reflect the
merits. We observe therefore that Carol has not established, as alleged in her complaint,
that the “Maleti obtained a favorable and final termination on the merits of all claims
alleged against him in the Farkas Probate Proceeding.” (Italics added.) We conclude,
however, that she has established that some of the claims were terminated in favor of the
Maleti Respondents on the merits. Since Carol has thus satisfied the favorable termination
element, and particularly given the unusual procedural circumstances presented here, we
believe it would be improper to conclude that she did not satisfy her burden in opposing the
anti-SLAPP motion due to imprecise wording in her complaint. (See Integrated Healthcare
Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 530 [expressing inclination “to
allow the plaintiff in a SLAPP motion a certain degree of leeway in establishing a
probability of prevailing on its claims due to ‘the early stage at which the motion is brought
and heard . . . and the limited opportunity to conduct discovery’ ”].)
. 24
“determin[ing] ‘whether there was a favorable termination,’ we ‘look at the judgment as a
whole in the prior action.’ ” (Casa Herrera, supra, 32 Cal.4th at p. 341.) And as discussed,
ante, where, as here, the current plaintiff prevailed in the underlying action on multiple
causes of action, we look to whether the disposition was on the merits as to at least one of
those claims.
There were nine claims asserted by McLaughlin against the Maleti Respondents in
the Farkas probate proceeding. We will consider the disposition of those claims in three
separate categories: (a) the eighth through tenth causes of action of the Fifth Amended
Petition; (b) the first through fifth causes of action of the Fourth Amended Petition; and (c)
the sixth cause of action of the Fifth Amended Petition.
(a) 8th–10th Causes of Action
In granting summary judgment in favor of the Maleti Respondents, the probate court
found that the eighth and ninth causes of action for negligence and for slander of title,
respectively, were barred by the applicable statute of limitations (see § 338). No other
ground for granting summary judgment of these claims was stated by the court in its
October 11, 2018 order.9 Thus, the termination of the eighth and ninth causes of action in
the underlying case is “deemed a technical or procedural as distinguished from a substantive
termination” and was not a termination on the merits. (Lackner, supra, 25 Cal.3d at p. 751.)
The probate court also granted summary judgment in favor of the Maleti
Respondents on the tenth cause of action to pierce the corporate veil, concluding that it was
a theory of vicarious liability, not a freestanding claim, and because no substantive claims
9
The record suggests that there may have been substantive grounds argued in support
of the summary judgment motion. It was alleged in the complaint that the motion for
summary judgment was based in part upon substantive grounds. Nonetheless, the probate
court did not rule in the Maleti Respondents’ favor on substantive grounds as to the eighth
and ninth causes of action.
. 25
remained against them. Carol makes the conclusory argument, unsupported by authority,
that this was a favorable termination on the merits. We may “treat the issue as abandoned.”
(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)
In any event, the court’s ruling concerning the alter ego claim does not appear to
have been a substantive determination. The court did not consider the merits of whether
Maleti Corp. was, in fact, the alter ego of Maleti. Instead, the probate court reasoned that
the alter ego theory could not survive because the Maleti Respondents had no potential
liability under the remaining claims asserted by McLaughlin. This decision appears
“technical or procedural,” not “substantive,” and thus does not reflect the merits. (Lackner,
supra, 25 Cal.3d at p. 751.)
Robbins v. Blecher (1997) 52 Cal.App.4th 886 supports this conclusion. There, the
malicious prosecution defendants had prevailed against a corporation, and while that case
was on appeal, they filed a separate action against Robbins alleging that he was the
corporation’s alter ego. (Id. at p. 890.) After the judgment in favor of the corporation was
reversed on appeal and the decision became final, the defendants voluntarily dismissed their
alter ego action. (Id. at pp. 890-891.) Robbins filed a malicious prosecution suit based upon
the dismissal of the alter ego action. (Id. at p. 891) The trial court sustained without leave
to amend a demurrer to Robbins’s complaint because there had been no favorable
termination of the underlying alter ego action. (Ibid.) The Court of Appeal affirmed,
reasoning, “As an entity which was no longer a judgment creditor of [the corporation], [the
malicious prosecution defendants] had simply lost standing to pursue [the corporation’s]
alter egos. [The] voluntary dismissal was not a concession that [the corporation] and
Robbins had done nothing wrong, but merely a concession that [the defendants were] no
longer in a position to complain of their wrongdoing. This concession does not reflect on
the merits of the alter ego action, but only on its mootness.” (Id. at p. 894, fn. omitted.)
. 26
(b) 1st-5th Causes of Action
We next address the first through fifth causes of action of the Fourth Amended
Petition—i.e., five of the six Easement Claims alleged against the Maleti Respondents in
that pleading. The probate court sustained with leave to amend the Maleti Respondents’
demurrer to those claims. When McLaughlin, through her Attorneys, filed the Fifth
Amended Petition, she elected not to reallege those five claims against the Maleti
Respondents. “When the proceeding terminates other than on the merits, the court must
examine the reasons for termination to see if the disposition reflects the opinion of the court
or the prosecuting party that the action would not succeed.” (Sierra Club, supra, 72
Cal.App.4th at p. 1149; see also Eells, supra, 36 Cal.App.4th at p. 1855 [“[t]he reasons for
the dismissal of the action must be examined to determine whether the termination reflected
on the merits”].) Therefore, here, the circumstances involving the procedural history of the
first through fifth causes of action must be examined to determine whether there was a
favorable termination.
McLaughlin alleged in the Fourth Amended Petition that the Farkas Estate, owning
Parcels 18 and 5, held easement rights over a dirt road located on Parcel 19 and Parcel 21
connecting to Tradewinds Drive (i.e., the Tradewinds Route). She alleged that Parcel 19
and Parcel 21 were owned by Wilson/Patrick and the Kings, respectively. McLaughlin
alleged further that Parcels 18, 19, and 21 had been “previously owned by [the Maleti
Respondents].” In the first through fifth causes of action, McLaughlin sought to enforce
these rights through claims of easement (1) by prescription, (2) by implication, (3) through
implied conveyance, (4) by express grant, and (5) by necessity.
In their demurrer filed in July 2017, the Maleti Respondents challenged the first
through fifth causes of action on both technical and substantive grounds. They asserted that
the claims were barred by the applicable statute of limitations and by laches. The Maleti
Respondents also argued that each of the five claims failed to state facts sufficient to
constitute a cause of action because (1) the Maleti Respondents “own no vested interest in
. 27
any of the property at issue,” citing section 762.010 and Civil Code section 804; (2) Maleti,
individually, never owned any interest in the properties at issue in the proceeding; and
(3) the Maleti Respondents “are not legally authorized defendants under Probate Code
section 850, as they presently have no interest in the property at issue.” In her opposition to
the demurrer, McLaughlin presented argument, inter alia, in response to the assertions that
the claims were barred by the applicable statute of limitations and by laches. Significantly,
however, McLaughlin presented no argument in response to the Maleti Respondents’
position that the five easement claims were not viable because they presently held no
interest in any of the property at issue and because Maleti, individually, never held any
interest in such property.
In September 2017, the court sustained with leave to amend the demurrer to the six
Easement Claims alleged in the Fourth Amended Petition.10 It is apparent that the basis for
the ruling was McLaughlin’s failure to allege that the Maleti Respondents had a present
interest in the property at issue. The court granted leave to amend “to allow Petitioner to
allege, that the Maleti Respondents are claiming an interest to, have title to or are in
possession of the property.” (Italics added.)
McLaughlin filed a Fifth Amended Petition. Although she alleged the same six
Easement Claims that had been previously asserted, McLaughlin omitted the Maleti
Respondents from the first five causes of action. Attorneys contend here that “[a]lthough
[they] chose not to include Sal Maleti in the other easement theories [in the Fifth Amended
Petition], this was not a ‘dismissal on the merits’ for purposes of ‘a favorable termination’
of the entire action . . . since the remaining causes of action were based on the same
requested relief: an easement.” We need not consider this argument as it is unsupported by
any legal authority. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.)
10
The sixth cause of action (easement by estoppel) is discussed separately, post.
. 28
“ ‘[W]hen a plaintiff is given the opportunity to amend his [or her] complaint and
elects not to do so, strict construction of the complaint is required and it must be presumed
that the plaintiff has stated as strong a case as he [or she] can.’ [Citations.]” (Reynolds v.
Bement (2005) 36 Cal.4th 1075, 1091 (Reynolds), overruled on other grounds in Martinez v.
Combs (2010) 49 Cal.4th 35, 66.) As the high court stated more emphatically many years
ago, an election not to amend after a demurrer to a complaint is sustained with leave to
amend results in the plaintiff “ ‘practically confess[ing] that he [or she] has alleged in [the]
pleading every fact [the plaintiff] is prepared to prove in support of [the plaintiff’s]
action.’ ” (Goldtree v. Spreckels (1902) 135 Cal. 666, 672.)
When McLaughlin (through her Attorneys) failed to amend her petition as to the first
through fifth causes of action, she admitted that she had “ ‘stated as strong a case as [she
could’ ” against the Maleti Respondents. (Reynolds, supra, 36 Cal.4th at p. 1091.) And her
failure to amend after the court granted her leave supports the conclusion that she could not
cure the defect identified by the court in its order, namely, the failure to allege “that the
Maleti Respondents [were currently] claiming an interest [to], . . . title to or [were currently]
in possession of the property.” The disposition of the first five Easement Claims through
their abandonment by McLaughlin and Attorneys may “reflect[] the opinion of . . . the
prosecuting party that the action would not succeed.” (Sierra Club, supra, 72 Cal.App.4th
at p. 1149.)
At oral argument in this appeal, counsel for Attorneys asserted that the decision not
to amend the Fifth Amended Petition to include the Maleti Respondents was simply a
strategic decision to narrow the focus of the case, and it could not be viewed as a
termination on the merits. Counsel argued further that under no circumstances should a
plaintiff’s decision to dismiss voluntarily a claim after the court sustains a demurrer to it
with leave to amend constitute a favorable termination on the merits. We disagree. A
voluntary dismissal may support a favorable termination finding, although “[t]he reasons for
the dismissal of the action must be examined to determine whether the termination reflected
. 29
on the merits. [Citations.]” (Eells, supra, 36 Cal.App.4th at p. 1855.) And here, although
there was no formal voluntary dismissal of the first through fifth causes of action,
Attorneys’ election not to amend after the court sustained the demurrer to the Fourth
Amended Petition with leave to amend effectively resulted in an abandonment of those
claims, removing them from the proceedings (as to the Maleti Respondents). We conclude
that a plaintiff’s decision not to amend a pleading to reallege one or more causes of action
after a demurrer to those claims is sustained on substantive grounds with leave to amend
may, upon a proper showing, constitute a favorable termination on the merits of those
abandoned claims.
Viewing the circumstances as a whole, Carol made a prima facie showing that the
disposition of the first through fifth causes of action in the Maleti Respondents’ favor
“reflect[ed] on the merits.” (Lackner, supra, 25 Cal.3d at p 750.)11
(c) 6th Cause of Action
McLaughlin alleged in the Fourth Amended Petition, as a sixth cause of action
against all respondents, that the Farkas Estate was entitled to an easement by estoppel over
the Tradewinds Route burdening Parcels 19 and 21 that should be enforced by a court of
equity. The probate court sustained the Maleti Respondents’ demurrer to that claim,
granting McLaughlin leave to amend “to allege, that the Maleti Respondents are claiming an
interest to, have title to or are in possession of the property.”
11
In their opening brief, Attorneys rely on Cuevas-Martinez v. Sun Salt Sand, Inc.
(2019) 35 Cal.App.5th 1109 (Cuevas-Martinez). There, the court held that a plaintiff could
properly assert a malicious prosecution claim that would survive an anti-SLAPP motion if
he or she could show that a multiple-theory claim in the underlying action was not
supported by probable cause as to at least one of those theories. (Id. at p. 1118, citing
Crowley, supra, 8 Cal.4th at p. 683, fn. 11.) Cuevas-Martinez does not support Attorneys’
position that their failure to amend the first through fifth causes of action did not constitute a
termination on the merits.
. 30
The Fifth Amended Petition contained revisions and additions to its preliminary
allegations, including some pertaining to the Maleti Respondents. There were no new
allegations, however, to the effect that the Maleti Respondents’ currently claimed an interest
in, title to, or possession of the property. The only new allegation in the sixth cause of
action pertaining to the prior order on demurrer is the italicized portion of the following
sentence: “Farkas is entitled to the Tradewinds Route easement by estoppel because
MALETI, who owned, and had interest in, title to and possession of KING APN 21 at the
time Farkas purchased FARKAS APN 18, and Farkas entered into an agreement which
should be enforced in equity in favor of both FARKAS APN 18 and FARKAS APN 05.”
(Italics added.)
The Maleti Respondents demurred, inter alia, to the easement by estoppel claim
alleged in the Fifth Amended Petition.12 The court sustained the demurrer to the sixth cause
of action without leave to amend.
Carol argues that this ruling after demurrer constituted a favorable termination on the
merits as to the easement by estoppel claim because McLaughlin “could not allege that
[Maleti] had an ownership interest in the land over which she sought an easement.”
Attorneys do not address this issue.
The probate court had previously sustained the demurrer to the easement by estoppel
claim in the Fourth Amended Petition with leave to amend “to allege, that the Maleti
Respondents are claiming an interest to, have title to or are in possession of the property.”
(Italics added.) Plainly, the court had agreed with the Maleti Respondents’ position that the
sixth cause of action was defective because Attorneys had not alleged that the Maleti
12
Although this demurrer was not included in record, Carol alleged in the complaint
that it was based, inter alia, upon McLaughlin’s failure to “allege that the Maleti
Respondents claimed an interest in, have title to or possession of any of the property at
issue.”
. 31
Respondents currently owned a vested interest in the property as required by section
762.010, Civil Code section 804, and Probate Code section 850. McLaughlin, through her
Easement Claims, was claiming an adverse interest in the property of another and was thus
required to “name as defendants in the action the persons having adverse claims to the title
of the plaintiff against which a determination is sought.” (§ 762.010, italics added.) In her
Fifth Amended Petition, McLaughlin did not address the defect identified in the prior
order—and thus did not present a cognizable claim under section 762.010—instead, adding
an allegation that the Maleti Respondents “owned, and had interest in, title to and possession
of” Parcel 21 when Farkas purchased Parcel 18 in August 1992. (Italics added.)
In summary, (1) the probate court sustained a demurrer to the easement by estoppel
claim in the Fourth Amended Petition for the substantive reason that there was no allegation
that the Maleti Respondents held a current interest in the subject property; (2) despite being
granted leave to amend, Attorneys failed to cure that defect; and (3) the probate court,
recognizing Attorneys’ inability to allege facts that were necessary to assert a viable claim,
sustained the general demurrer of the Maleti Respondents to the sixth cause of action of the
Fifth Amended Petition without leave to amend. These circumstances “reflect[] the opinion
of the court or the prosecuting party that the action would not succeed.” (Sierra Club,
supra, 72 Cal.App.4th at p. 1149.) Thus, Carol made a prima facie showing that the order
constituted a termination on the merits as to the sixth cause of action. (Cf. Ojavan
Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 384 [holding that, in
the context of applying the res judicata doctrine, “a judgment following the sustaining of a
general demurrer may be on the merits”].)
(d) Conclusion (Favorable Termination)
We conclude that Carol satisfied her burden in opposing the anti-SLAPP motion, as
to the element of favorable termination of the underlying proceeding required for malicious
prosecution, of presenting a legally sufficient complaint and making a prima facie showing
of facts supporting that element. (Wilson, 28 Cal.4th at p. 821.) The disposition of the
. 32
eighth through tenth causes of action in the probate proceeding was procedural or technical
and thus did not reflect the merits. But there was a prima facie showing that the dispositions
of (a) the first through fifth causes of action by demurrer sustained with leave to amend
(with McLaughlin electing not to amend), and (b) the sixth cause of action by demurrer
sustained without leave to amend, were in the Maleti Respondents’ favor and “reflect[ed] on
the merits.” (Lackner, supra, 25 Cal.3d at p 750.) While Attorneys may challenge this
conclusion as the malicious prosecution case proceeds on remand, Carol’s showing was
sufficient to defeat the special motion to strike. (See Ross v. Kish (2006) 145 Cal.App.4th
188, 198 [if there is a conflict “as to the circumstances of the termination, the determination
of the reasons underlying the dismissal is a question of fact”].)
3. Absence of Probable Cause
a. Applicable Law
“[T]he probable cause element calls on the trial court to make an objective
determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether,
on the basis of the facts known to the defendant, the institution of the prior action was
legally tenable.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 (Sheldon
Appel).) The court determines if a claim is tenable by inquiring “whether any reasonable
attorney would have thought the claim tenable.” (Id. at p. 886.) Thus, as the high court
later explained, “probable cause to bring an action does not depend upon it being
meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in
apparent merit that no reasonable attorney would have thought the claim tenable.
[Citation.]” (Wilson, supra, 28 Cal.4th at p. 824, original italics.) “ ‘A litigant will lack
probable cause for his action either if he relies upon facts which he has no reasonable cause
to believe to be true, or if he seeks recovery upon a legal theory which is untenable under
the facts known to him.’ [Citation.]” (Soukup, supra, 39 Cal.4th at p. 292.)
Because the probable cause determination is based upon an objective standard, the
nature, extent, and adequacy of an attorney’s research—while germane to the separate issue
. 33
of malice—is not relevant to probable cause. (Sheldon Appel, supra, 47 Cal.3d at p. 883.)
And because “ ‘experts may not give opinions on matters which are essentially within the
province of the court to decide’ citations],” expert testimony concerning probable cause is
improper. (Id. at p. 884.) If the court finds the existence of probable cause, “the malicious
prosecution action fails, whether or not there is evidence that the prior suit was maliciously
motivated.” (Id. at p. 885.)
Probable cause is a question of law decided by the court. (Sheldon Appel, supra, 47
Cal.3d at p. 875.) Where the facts are undisputed, the court decides the issue without any
submission to the jury. (Ibid.) But if the evidence is conflicting, the jury decides the
preliminary factual questions on which the probable cause determination is made by the
court. (Ibid.)
As discussed, ante, under the Bertero rule, a malicious prosecution plaintiff must
show that the defendant lacked probable cause in the assertion of at least one theory in the
prior suit, even if such defendant had probable cause in asserting other theories in that case.
(Bertero, supra, 13 Cal.3d at p. 50.) Additionally, probable cause (or its absence) must be
viewed at more than one moment in the life of the prior litigation. Even if the malicious
prosecution defendant had probable cause to initiate the suit under a particular theory, his or
her decision to continue to prosecute the case on that theory after learning it was not
supported by probable cause may result in liability for malicious prosecution. (Zamos v.
Stroud (2004) 32 Cal.4th 958, 971.)
b. Prima Facie Showing of Absence of Probable Cause
Attorneys contend that they had probable cause to join the Maleti Respondents in the
probate proceeding when they filed the Fourth Amended Petition. Citing a lengthy joint
declaration of Rodney Wickers and Christina Wickers in support of the anti-SLAPP motion,
they contend that they only added the Maleti Respondents to the proceeding “[a]fter
conducting extensive discovery, consulting with experts, and taking Maleti’s deposition,”
from which Attorneys determined “that Maleti had promised Farkas an easement to access
. 34
the Properties, and it was Maleti, the original grantor, who created the ambiguity in the
Farkas Deed.” Carol responds that none of the claims was supported by probable cause
because, inter alia, (1) as to the Easement Claims, Maleti had no ownership interest in the
subject properties at the time he and his corporation were named as respondents; (2) as to
the negligence claim, Maleti owed no duty to Farkas, who chose to be unrepresented in the
transaction in which he purchased Parcel 18; and (3) as to the slander of title claim, all of
Maleti’s statements in the 1999 fax to the title company concerning Farkas’s access to
Parcel 18 and any easements were true.
“The tort of malicious prosecution does not have to be directed to an entire lawsuit or
even to an entire cause of action. [Citations.]” (Area 55, LLC v. Nicholas & Tomasevic,
LLP (2021) 61 Cal.App.5th 136, 153.) As we have concluded, Carol made a prima facie
showing that some, but not all, of the claims asserted against the Maleti Respondents
terminated in their favor on the merits. Since the eighth, ninth, and tenth causes of action
were terminated for procedural or technical reasons, our focus on the probable cause
element (as well as the element of malice addressed, post) is on the six Easement Claims for
which Carol made a prima facie showing of termination on the merits. (Cf. Padres L.P. v.
Henderson (2003) 114 Cal.App.4th 495, 522 (Padres L.P.) [because malicious prosecution
plaintiff opposing anti-SLAPP motion failed to show that two underlying lawsuits lacked
probable cause, appellate court would address malice element only as to third lawsuit for
which there was no probable cause].)
The complaint contains the allegation that when the Fourth and Fifth Amended
Petitions were filed, “no reasonable attorney would have thought that the claims alleged
against Sal Maleti in those pleadings were legally tenable.” Carol alleged specifically that
no probable cause existed because, inter alia, “[t]here was no factual or legal basis for
prosecution of the [Easement Claims] . . . because Sal Maleti never owned any interest in
Parcels 18, 19 or 21, and Maleti Corp. divested itself of any interest in those properties by
April 2000.” We conclude that Carol satisfied her burden of showing that the complaint, as
. 35
it concerned the absence of probable cause element, was “ ‘legally sufficient.’ ” (Wilson, 28
Cal.4th at p. 821.)13
California’s Quiet Title Act (§ 760.010 et seq.) “creates a special procedural
mechanism for seeking and obtaining in rem judgments resolving adverse claims to property
that would be binding even to nonparties and hence be ‘good against all the world.’
[Citations.]” (Tsasu LLC v. U.S. Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.) One
element of a quiet title claim “is ‘[t]he adverse claims to the title of the plaintiff against
which a determination is sought.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013)
214 Cal.App.4th 780, 802 (West), quoting § 761.020, subd. (c).) Thus, in an action brought
under the statute, the plaintiff seeking to quiet title to real or personal property “shall name
as defendants in the action the persons having adverse claims to the title of the plaintiff
against which a determination is sought.” (§ 762.010; see also Civ. Code, § 804 [“[a]
servitude can be created only by one who has a vested estate in the servient tenement”].)
In West, supra, 214 Cal.App.4th at page 786, after her property was lost through
foreclosure, the borrower/former owner West sued, among others, the foreclosing bank that
was the successor to the original lender. She alleged numerous causes of action, including
an action to quiet title. (Ibid.) The bank argued that the quiet title claim was defective
because, having foreclosed on the security in a sale in which it was not the grantee, the bank
no longer held an interest in the subject property. (Id. at pp. 802-803.) The appellate court
agreed. It held that West had not alleged and proved the statutory element under
section 761.020, subdivision (c) concerning “[t]he adverse claims to the title of the plaintiff
against which a determination is sought,” “because none of the defendants to the third
amended complaint has adverse claims to title.” (West, supra, at p. 802; see also Orcilla v.
13
Attorneys do not argue on appeal—nor did they do so below—that the complaint’s
allegations regarding the absence of probable cause were deficient.
. 36
Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1010 (Orcilla) [borrowers’ concession that “ ‘the
Bank Defendants have no Adverse claims to title’ . . . dooms their quiet title claim against
[those] Defendants”].)
During the pendency of the Farkas proceeding, neither Maleti nor Maleti Corp. had
any interest in any of the property at issue (Parcels 18, 19, and 21). McLaughlin
acknowledged in the Fourth Amended and Fifth Amended Petitions that the Maleti
Respondents had “previously owned” those parcels, and they had conveyed them to others.
(Italics added.) Also, significantly, in the last paragraph of both petitions, under the heading
“PERSONS WITH INTEREST,” McLaughlin identified 16 parties as being “all persons
known by petitioner to claim an interest in the property, all persons having an interest in
decedent’s estate who could be affected by a determination of ownership of the property,
including the heirs and devisees . . .”; neither Maleti nor Maleti Corp. was included among
those 16 parties.
Further, Attorneys were aware no later than January 20, 2017—more than three
months before the Fourth Amended Petition was filed—that the Maleti Respondents held no
interest in any of the relevant properties. On that date, Attorneys deposed Maleti, and he
testified that he had previously owned Parcels 18, 19, 21, and 22, acquiring them in the
1980’s; he had thereafter transferred each parcel; and that he no longer owned any of the
parcels.
Maleti Respondents, therefore, were plainly not “persons having adverse claims to
the title of the plaintiff.” (§ 762.010.) The six Easement Claims under which McLaughlin,
through Attorneys, sought to adjudicate the Farkas Estate’s easement rights over Parcels 19
and 21 to access the Tradewinds Route, and thereby adjudicating rights affecting the owners
of those servient tenements, were plainly claims governed by the California’s Quiet Title
Act (§ 760.010 et seq.). Those claims were not maintainable against the former owner, the
Maleti Respondents, who had no present claim to, or interest in the relevant property.
(Orcilla, supra, 244 Cal.App.4th at p. 1010; West, supra, 214 Cal.App.4th at p. 802.)
. 37
As alleged in the Fourth and Fifth Amended Petitions, McLaughlin, through her
Attorneys, brought the proceeding that included the Easement Claims pursuant to the
authority of Probate Code section 850, subdivision (a)(2)(D). Under that statute, “[t]he
personal representative or any interested person [may file a petition seeking an order] . . .
[¶] . . . [¶] [w]here the decedent died having a claim to real or personal property, title to or
possession of which is held by another.” (Prob. Code, § 850, subd. (a)(2)(D), italics added.)
Here, during the pendency of the underlying proceeding, none of the subject real property to
which the Farkas Estate was asserting a claim of title or possession was being presently
“held by” the Maleti Respondents. (Ibid.) The Easement Claims against the Maleti
Respondents were thus not authorized under Probate Code section 850,
subdivision (a)(2)(D).
Attorneys do not in their appellate briefs—nor did they in their memoranda filed
below in support of their anti-SLAPP motion14—address the issue of probable cause for the
initiation and prosecution of the six Easement Claims against the Maleti Respondents. And
the joint declaration of Rodney Wickers and Christina Wickers, referred to in Attorneys’
opening brief, does not provide any factual or legal support for asserting the Easement
Claims against the Maleti Respondents.15
14
Attorneys’ initial memorandum in support of their special motion to strike stated
conclusorily that there was probable cause and an absence of malicious intent in naming
Maleti and Maleti Corp. as respondents, “because there is ample evidence that there were
reasonable grounds for bringing claims against him.” They also asserted, without citation of
authority, that the probate court’s having partially overruled the demurrers to the petitions
demonstrated that Attorneys “had stated valid claims against Maleti as a matter of law.”
The reply memorandum contained one paragraph on the issue of probable cause. Neither
the initial memorandum nor the reply addressed the legal basis upon which the Maleti
Respondents were joined as parties in the six Easement Claims alleged in the Fourth
Amended Petition or in the sixth cause of action alleged in the Fifth Amended Petition.
15
Attorneys also argue (without citation to authority) that it was not required that
they “prevail on their claims to have probable cause to bring their action against Maleti.
continued
. 38
We conclude that Carol made a prima facie showing that the six Easement Claims
asserted against the Maleti Respondents in the underlying probate proceeding were not
objectively tenable and thus not supported by probable cause.
4. Malice
a. Applicable Law
“The malice element of the malicious prosecution tort goes to the defendant’s
subjective intent in initiating the prior action. [Citations.]” (Sierra Club, supra, 72
Cal.App.4th at pp. 1156-1157.) As such, malice—being “the defendant’s motivation”
(Sheldon Appel, supra, 47 Cal.3d at p. 874)—is a question of fact within the province of the
jury. The requisite showing of malice “is not limited to actual hostility or ill will toward
plaintiff but exists when the proceedings are instituted primarily for an improper purpose.
[Citations.]” (Albertson v. Raboff (1956) 46 Cal.2d 375, 383.) “Malice ‘may range
anywhere from open hostility to indifference. [Citations.]’ ” (Soukup, supra, 39 Cal.4th at
p. 292.) Malice may be found “where the proceedings are initiated for the purpose of
forcing a settlement which has no relation to the merits of the claim.” (HMS Capital, Inc. v.
Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 (HMS Capital).) And “[s]ince parties
rarely admit an improper motive, malice is usually proven by circumstantial evidence and
inferences drawn from the evidence. [Citation.]” (Ibid.)
In evaluating the element of malice, its distinction from, and relationship to, the
element of lack of probable cause, are important. The absence of probable cause alone does
not establish malice. (Padres L.P., supra, 114 Cal.App.4th at p. 522.) However, “ ‘[m]alice
They were only required to show a sincere and good faith belief that the easement claim was
genuine.” (Original italics.) This is an incorrect statement of the law. While whether an
attorney did or did not have a subjective good faith belief that a claim was tenable is
relevant to the malice element, the presence or absence of probable cause is determined
under an objective standard of whether the claim is legally tenable. (Sheldon Appel, supra,
47 Cal.3d at p. 881.)
. 39
may . . . be inferred from the facts establishing lack of probable cause.’ [Citation.]”
(Soukup, supra, 39 Cal.4th at p. 292; see also HMS Capital, supra, 118 Cal.App.4th at
p. 218 [absence “of probable cause is a factor that may be considered in determining if the
claim was prosecuted with malice”].) The attorney’s subjective belief in the tenability of
the claim, or the lack of such belief—while irrelevant to probable cause—is “clearly . . .
relevant to the question of malice.” (Sheldon Appel, supra, 47 Cal.3d at p. 881.) And while
“[a]dditional proof of malice can consist of evidence [of] a party knowingly bring[ing] an
action without probable cause . . . , a corollary to this rule . . . [is that] malice can be inferred
when a party continues to prosecute an action after becoming aware that the action lacks
probable cause.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226, original italics
(Daniels).)
b. Prima Facie Showing of Malice
Attorneys contend that Carol did not establish the element of malice. They urge
there was significant evidence that they added Maleti and Maleti Corp. as respondents in the
underlying probate proceeding due to a “good faith belief that they had a tenable claim
against [Maleti].” Carol responds that there was ample evidence of Attorneys’ malice in the
underlying proceeding. Carol cites to such evidence (discussed, post) as Attorneys’
inadequate investigation, their knowledge of Maleti’s poor health, and their personal service
late in the evening of a trial subpoena upon the ailing Maleti, who was represented by
counsel.
Carol alleged in the complaint that the Defendants “acted maliciously by initiating
and maintaining litigation against Sal Maleti in the Farkas Probate Proceeding in bad faith.”
She alleged, inter alia, that the Defendants litigated the underling proceeding to force a
settlement, and that they knew when they named Maleti and Maleti Corp. as respondents
“that Maleti Corp. had not owned any interest in any of the properties at issue since April
2000 and that Sal Maleti never owned any interest in those properties, and therefore had no
ability to grant the easement they sought and could not be compelled to do so.” We
. 40
conclude that Carol satisfied her burden of showing that the complaint, as it concerned the
element of malice, was “ ‘legally sufficient.’ ” (Wilson, 28 Cal.4th at p. 821.)16
We address initially the circumstances concerning the absence of probable cause for
the Easement Claims as they relate to the element of malice. (See Soukup, supra, 39 Cal.4th
at p. 292.) Before naming Maleti and Maleti Corp. as respondents, Attorneys were aware
that neither held any present interest in any of the property at issue. Attorneys learned this
fact no later than January 20, 2017, when they deposed Maleti. They, therefore, at least
three months before filing the Fourth Amended Petition, knew (or, as legal professionals,
should have known) that the Maleti Respondents could not be joined as respondents in
connection with the Easement Claims because they were clearly not “persons having
adverse claims to the title of the plaintiff” as required under section 762.010 of the
California Quiet Title Act.
Nonetheless, Attorneys, in April 2017, named the Maleti Respondents in the Fourth
Amended Petition, asserting, inter alia, the Easement Claims against them. Thereafter in
July, 2017, Attorneys were notified, through the demurrer, of the flaw in charging the Maleti
Respondents because they had no interest in the property at issue. Attorneys continued to
assert the legal validity of the Easement Claims in opposing the demurrer; significantly,
however, their opposition contained no argument in response to the position that the
Easement Claims were untenable because neither Maleti nor Maleti Corp. held a present
interest in the property at issue. The probate court acknowledged the defect by sustaining
the demurrer with leave to amend so that McLaughlin could allege, if she could, “that the
Maleti Respondents are claiming an interest to, have title to or are in possession of the
property.”
16
Attorneys do not argue on appeal—nor did they do so below—that the complaint’s
allegations regarding malice were deficient.
. 41
When McLaughlin filed the Fifth Amended Petition containing the same six
Easement Claims, she elected not to include Maleti and Maleti Corp. as respondents to the
first five causes of action. As we have discussed, ante, the circumstances surrounding the
pleading of the first five causes of action and their later abandonment by McLaughlin,
through Attorneys, are a sufficient prima facie showing that the claims were terminated on
the merits in the Maleti Respondents’ favor because “the disposition reflect[ed] the opinion
of . . . the prosecuting party that the action would not succeed.” (Sierra Club, supra, 72
Cal.App.4th at p. 1149.)
As to the sixth cause of action, Attorneys—disregarding the issue the probate court
identified in its prior order on demurrer—alleged in the Fifth Amended Petition that the
Maleti Respondents previously “owned, and had interest in, title to and possession of [Parcel
21]” when Farkas purchased Parcel 18 in August 1992. (Italics added.) The Maleti
Respondents’ demurrer to the sixth cause of action—which again included the argument that
the easement by estoppel claim was not maintainable because the Maleti Respondents did
not claim a current interest in, or possession of the property—was sustained without leave to
amend by the probate court.
Acknowledging that the absence of probable cause alone does not establish malice
(Padres L.P., supra, 114 Cal.App.4th at p. 522), the matters described above offer
significant circumstances from which malice in this instance may be inferred. (Soukup,
supra, 39 Cal.4th at p. 292.) The evidence supports inferences that (1) Attorneys knew as
early as January 2017 that the Easement Claims against the Maleti Respondents were not
viable; (2) they nonetheless asserted those claims three months later in April in the Fourth
Amended Petition; (3) their knowledge that the claims were legally untenable was later
reinforced when the Maleti Respondents filed their demurrer in July and when the court
sustained that demurrer in September; and (4) Attorneys continued to assert, despite their
knowledge that it was untenable, the claim for easement by estoppel in the Fifth Amended
Petition. (See Daniels, supra, 182 Cal.App.4th at p. 226 [“evidence a party knowingly
. 42
[brought] an action without probable cause” may be “[a]dditional proof of malice,” and
“malice can be inferred when a party continues to prosecute an action after becoming aware
that the action lacks probable cause”].)17 The above evidence, unrebutted at this stage of the
proceedings by Attorneys, supports a finding of malice.
Carol argued below that there were other facts showing malice, including Attorneys’
inadequate investigation that preceded the filing of the Fourth Amended Petition.
Specifically, she asserted that had Attorneys interviewed the adjacent property holders, they
would have learned that both Wilson (Parcel 19) and the Kings (Parcel 21) had given
permission to Farkas to use the Tradewinds Route passing over their respective properties,
thereby negating McLaughlin’s prescriptive easement claim. (See Aaron v. Dunham (2006)
137 Cal.App.4th 1244, 1252 [landowner’s express permission defeats assertion of a
prescriptive easement].) There is evidence in the record that the owners of Parcels 19 and
21 in fact gave permission to Farkas to use the Tradewinds Route. This evidence includes
(1) the declaration of Kendall King in support of his motion for summary adjudication; and
(2) the probate court’s orders granting the separate motions of the Kings and Wilson/Patrick
summarily adjudicating the prescriptive easement claim based upon evidence in each
motion that use of the roadway was permissive. This was probative evidence supporting
malice. (See Sheldon Appel, supra, 47 Cal.3d at p. 883 [where underlying action was not
17
Our discussion of the favorable termination and absence of probable cause
elements, ante, focused upon the six Easement Claims. Our discussion here is similarly
directed at whether there was evidence of malice in Attorneys’ initiation and prosecution of
those six claims. This discussion should not be construed as our holding inadmissible any
evidence that Attorneys acted with malice in prosecuting the other claims (e.g., whether
Attorneys subjectively believed the negligence claim was legally tenable). That issue is not
before us, and we therefore do not decide it. (See Benach, supra, 149 Cal.App.4th at p. 845,
fn. 5 [appellate courts will not address issues whose resolution is unnecessary to the
disposition of the appeal].)
. 43
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”].)
Carol also asserted that certain treatment of Maleti by Attorneys during the probate
proceedings, given Maleti’s age and poor health, was evidence of malice. The evidence,
consisting primarily of the declaration of his son, was that Maleti had been diagnosed in
2015 with a serious and progressive lung disease that required his reliance on the use of
oxygen tanks. He was 71 years old at the time he was deposed in January 2017. After
being named in the Fourth Amended Petition in April 2017, he underwent considerable
emotional, physical, and financial stress relating to the litigation. His health declined
dramatically in January 2018, and again in January 2019. Carol also identified in her
opposition an act by Christina Wickers occurring on October 10, 2018—after the hearing on
the Maleti Respondents’ summary judgment motion and one day before entry of the formal
order. Ms. Wickers caused Maleti to be served with a trial subpoena after 8:30 p.m. His
counsel objected in an e-mail, indicating that Maleti was represented by counsel who was
authorized to accept service; Maleti was in poor health, as Ms. Wickers knew; and the
service of the subpoena under the circumstances was harassment. Ms. Wickers responded
that Attorneys had never harassed Maleti; he “gave us no choice but to file this case”; and
she had caused the trial subpoena to be served to ensure that Maleti would appear. We
conclude that, given the context—including Maleti’s age and poor health of which
Attorneys were aware, the lengthy and costly litigation, and the apparent fact that Attorneys
had recently suffered the final setback of having the remaining claims against the Maleti
Respondents decided against McLaughlin18—the late-evening subpoena service could be
18
It was reflected in the order granting summary judgment filed October 11, 2018
(one day after Maleti was served with a trial subpoena), that there had been a tentative
ruling issued by the court on September 24 granting the Maleti Respondents’ motion for
continued
. 44
construed as having been harassment and thus offering some support for the element of
malice.
Carol raised several other matters in her opposition to the anti-SLAPP motion that
she claimed supported malice. They do not appear to support the allegation in the complaint
that Attorneys acted with malice.19
Viewing the record as a whole, we conclude that Carol made a prima facie showing
from which a trier of fact may ultimately conclude (see Sheldon Appel, 47 Cal.3d at p. 874)
that Attorneys acted with malice in the initiation and prosecution of the underlying
proceeding.
D. Standing to Sue
Attorneys in their opening brief—as they did in their reply memorandum below—
contend that Carol did not plead that she had standing to sue for malicious prosecution on
behalf of decedent Maleti. They argue that because it was a survival action (§ 377.20,
subd. (a)), Maleti’s personal representative, or (if there was none) his successor in interest,
could bring the suit (§ 377.30, subd. (a)), but Carol failed to sufficiently allege or provide
evidence of such status. Attorneys assert further that if Carol were bringing suit as Maleti’s
personal representative, she had done so without filing an affidavit or declaration as required
under section 377.32, subdivision (a). Carol responds that (1) Attorneys’ belated contention
summary judgment, that the hearing on the motion took place on September 26, and that the
court, by its order, adopted the tentative ruling in its entirety.
19
Most of the other issues identified by Carol concerned statements and conduct by
McLaughlin, which might be relevant to proving malice by McLaughlin; it does not appear
to be relevant or probative concerning whether Attorneys acted with malice. Carol also
refers to a January 2018 written communication from Rodney Wickers, which she
characterizes as an “attempt[] to wring a cash payment from Sal Maleti . . . in exchange for
a settlement that had no relation to the merits of the claims . . . being litigated against him—
indeed, there were none.” The record is inadequate here to draw the conclusion that the act
of sending this communication was evidence of malice.
. 45
should be disregarded; (2) she was not required to file a declaration under section 377.32,
subdivision (a) as a condition to bringing suit; and (3) she complied with the statute by filing
a declaration on August 14, 2020 (i.e., one day after the hearing on the anti-SLAPP motion
and approximately one month before the formal order was entered).
Attorneys’ standing argument was raised below for the first time in their reply. Carol
thereafter filed an objection, indicating that the trial court should not consider the argument.
Carol contends here, without the requisite citation to the record (see Cal. Rules of Court,
rule 8.204(a)(1)(C)), that “[t]he trial court correctly declined to consider [Attorneys’]
eleventh-hour arguments.” But there is nothing in the record indicating that the court
explicitly sustained Carol’s objection. Nonetheless, we believe Carol’s objection has merit.
“The general rule of motion practice . . . is that new evidence is not permitted with reply
papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).) Strictly speaking,
Attorneys’ reply presented new argument rather than new evidence. But the principle
explained in Jay—which is based upon the unfairness to the opponent of not being able to
address the new matter raised in a reply (San Diego Watercrafts, Inc. v. Wells Fargo Bank,
N.A. (2002) 102 Cal.App.4th 308, 316)—applies here, particularly where the circumstances
giving rise to the argument (i.e., an asserted pleading defect) were known to Attorneys when
their anti-SLAPP motion was filed. (See Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2022) ¶ 9:106.1 [“[i]t is a serious mistake to
leave key arguments for the reply brief . . . [because] [t]he court is likely to refuse to
consider new evidence or arguments first raised in reply papers”].)
Carol alleged in the complaint that she is Maleti’s widow; upon his death, she
“became the executor of [his] estate . . . pursuant to the terms of his Last Will and
Testament”; and she brought “the claims alleged in this complaint as the executor of the
estate of Sal Maleti.” A survivor action may be brought by the personal representative or
successor in interest of the decedent. (§ 377.30.) Carol adequately pleaded her status as the
personal representative of Maleti’s estate.
. 46
Further, after Attorneys first identified an issue concerning Carol’s standing, and
before the filing of the formal order that is the subject of this appeal, Carol filed a
declaration as executor of Maleti’s estate pursuant to section 377.32, clarifying her status as
plaintiff. (See Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614 [filing of affidavit
under § 377.32 is not “ ‘a condition precedent to commencing or continuing the action’ ”].)
In that declaration, Carol stated that: (1) there was no pending proceeding concerning the
administration of Maleti’s estate; (2) his estate was not administered; (3) she became
Maleti’s successor in interest under his Last Will and Testament; and (4) no other person
had a superior right to commence the present action.
We reject Attorneys’ contention that the anti-SLAPP motion should have been
granted on the basis that Carol did not adequately plead or provide evidence of standing.20
E. Conclusion: Malicious Prosecution
Based upon the foregoing, we conclude that Carol satisfied her burden in opposing
the special motion to strike the claim for malicious prosecution. She presented a legally
sufficient complaint and made a prima facie showing of facts supporting the required
elements of favorable termination, absence of probable cause, and malice. (See Wilson, 28
Cal.4th at p. 821.) And we reject Attorneys’ standing argument. We therefore conclude
from our de novo review that the trial court did not err in denying the special motion to
strike the malicious prosecution claim.
20
Although the record is silent, we will presume that the trial court addressed
Attorneys’ standing argument and rejected it either because it was not timely presented or
because the court concluded that Carol had adequately pleaded standing. (See Lydig
Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945 [appellate court
will presume that trial court “considered all the pertinent matters presented to it and ruled in
favor of the prevailing party”].
. 47
F. Abuse of Process (Cross-Appeal)
The tort of abuse of process has two elements: “ ‘[F]irst, an ulterior purpose, and
second, a willful act in the use of the process not proper in the regular conduct of the
proceeding. Some definite act or threat not authorized by the process, or aimed at an
objective not legitimate in the use of the process, is required; and there is no liability where
the defendant has done nothing more than carry out the process to its authorized conclusion,
even though with bad intentions.’ ” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232.)
Abuse of process is distinct from the tort of malicious prosecution. “[W]hile a defendant’s
act of improperly instituting or maintaining an action may, in an appropriate case, give rise
to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit—
even for an improper purpose—is not a proper basis for an abuse of process action.” (Oren
Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157,
1169 (Oren Royal Oaks Venture).)
Attorneys argued below in their anti-SLAPP motion that Carol could not plead or
prove her second cause of action for abuse of process. They contended the claim asserted
was based upon the mere filing and prosecution of a lawsuit for an improper purpose which
was insufficient to support a claim for abuse of process. Carol disagreed, stating that the
“Defendants added Sal Maleti as a respondent in the midst of the underlying [probate
proceeding] for an improper purpose.”21 The trial court granted Attorneys’ special motion
to strike the second cause of action, concluding that “ ‘[s]imply filing or maintaining a
lawsuit for an improper purpose (such as might support a malicious prosecution cause of
action) is not abuse of process.’ [Citation.]”
21
Carol conceded below that Attorneys had satisfied the first prong in the anti-
SLAPP motion of showing that the abuse of process claim arose out of protected activity.
. 48
Carol in her cross-appeal asserts that the trial court erred in striking the abuse of
process claim, arguing she presented evidence that Defendants knew that their claims had no
merit and were time-barred, and that Maleti was in very poor health. Carol contends that
despite such knowledge, Defendants named Maleti and Maleti Corp. as respondents in the
Fourth Amended Petition in an “attempt to extract shakedown settlements.”
Attorneys respond that there was no error. They assert that all of the grounds in the
complaint as pleaded involved Defendants’ conduct of naming Maleti in the probate
proceeding and asserting claims against him. As there were no allegations that the process
of the court was misused in any specific manner, no abuse of process claim was stated.
In the complaint, Carol alleged that “Defendants committed willful acts against Sal
Maleti in the use of the court process that were not proper in the regular conduct of the
Farkas Probate Proceeding” by applying “coercion . . . to obtain a collateral advantage
against him when he was not a proper party.” She alleged that “Defendants improperly
named Sal Maleti as a respondent in the Farkas Probate Proceeding when there was no legal
or factual basis to do so.” Carol alleged that the Defendants asserted the claims with
knowledge that they had no merit, that Maleti was in poor health, and that they did so to
“extract a cash payment from him.” Carol also alleged that Defendants knew the claims
against Maleti were without merit when he was named as a respondent, because Defendants
knew, inter alia, that (1) Maleti never granted an easement to Farkas; (2) Maleti refused to
grant an easement to Farkas over the Tradewinds Route; and (3) Farkas asked Kendall King
for permission to use the access road connecting Parcel 21 with Tradewinds Drive and King
granted the request. And it was alleged that Defendants knew that Farkas was aware of the
existence of an issue concerning his right to use the Tradewinds Route to access his
property, and they knew the negligence and slander of title claims were time-barred.
The complaint did not contain allegations supporting abuse of process. As has been
explained, “Abuse of process is not just another name for malicious prosecution. Simply
filing or maintaining a lawsuit for an improper purpose (such as might support a malicious
. 49
prosecution cause of action) is not abuse of process. [Citation.] [¶] Malicious prosecution
and abuse of process are distinct. The former concerns a meritless lawsuit (and all the
damage it inflicted). The latter concerns the misuse of the tools the law affords litigants
once they are in a lawsuit (regardless of whether there was probable cause to commence that
lawsuit in the first place).” (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40 (Bidna).) Abuse
of process claims include lawsuits involving improper uses of the tools afforded litigants,
such as the improper use of discovery (see Younger v. Solomon (1974) 38 Cal.App.3d 289,
297-299); service of wrongful attachments (see White Lighting Co. v. Wolfson (1968) 68
Cal.2d 336, 348-351); obtaining a temporary restraining order to perpetuate a false
representation concerning a party (see Siam v. Kizilbash (2005) 130 Cal.App.4th 1563,
1579-1580); knowingly filing debt collection actions in improper venues for the purpose of
impairing the debtors’ ability to defend themselves (see Barquis v. Merchants Collection
Assn. (1972) 7 Cal.3d 94, 98 (Barquis)); and knowingly filing collection actions in the
wrong states to obtain default judgments upon which improper garnishment orders may be
obtained (see Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1389-1391).22
The allegations in the second cause of action of the complaint do not support a claim
for abuse of process. Rather, the allegations support the malicious prosecution claim
asserted in the first cause of action—the filing and prosecution of the meritless probate
proceeding. Carol does not allege an abuse of the court’s process by “the misuse of the
tools the law affords litigants once they are in a lawsuit.” (Bidna, supra, 19 Cal.App.4th at
22
Carol relies on Barquis, supra, 7 Cal.3d 94, which offers no support for her
position that the complaint here contained allegations sufficient to support an abuse of
process claim. In Barquis, the abuse of process consisted of the “practice of knowingly and
[willfully] filing actions in improper counties, pursuant to statutorily inadequate
complaints.” (Id. at pp. 97-98.) No such practice by Attorneys (or other misuse of the
process of the court) was alleged here.
. 50
p. 40.) The trial court did not err in granting the motion to strike the second cause of action
of the complaint. (See Oren Royal Oaks Venture, supra, 42 Cal.3d at p. 1169.)
G. Request for Attorney Fees
As an additional claim of error in their appeal,23 Attorneys challenge the trial court’s
denial of their request for attorney fees and costs in their special motion to strike. The court
declined to award fees and costs because Attorneys, as moving parties, obtained favorable
relief on only one of two causes of action sought to be stricken, and “the relief [was]
minimal compared with the goals of their motion.”
Attorneys contend that since they prevailed in part in their special motion to strike,
they were statutorily entitled to an award of attorney fees as to the portion of the motion on
which they prevailed. Carol responds that the trial court did not err in denying an award of
fees and costs because the partial granting of the anti-SLAPP motion “accomplished nothing
for [Attorneys].”
Under section 425.16, subdivision (c)(1), “a prevailing defendant on a special motion
to strike shall be entitled to recover his or her attorney’s fees and costs.” The purpose of the
statute is to “compensate[e] the prevailing defendant for the undue burden of defending
against litigation designed to chill the exercise of free speech and petition rights.
[Citation.]” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 327-328.) As explained
by one court, “the statute reflects a clear preference for awarding fees and costs to prevailing
23
Attorneys filed a notice of appeal identifying four orders they were challenging.
They also filed an amended notice of appeal adding a fifth challenged order. Besides the
August 13, 2020 Order denying their motion to strike the malicious prosecution claim and
the Order denying their request for attorney fees and costs, Attorneys identified three
discovery orders from which an appeal was taken. Attorneys present no argument in their
appellate briefs concerning the three discovery orders. They have thus abandoned any
appeal of those orders. (See Tanner v. Tanner (1997) 57 Cal.App.4th 419, 422, fn. 2
[appellate court treats as partial abandonment of appeal an appellant’s failure to challenge in
opening brief an order specified in notice of appeal].)
. 51
defendants. Section 425.16, subdivision (c) provides that a prevailing defendant on a
SLAPP motion to strike ‘shall be entitled to recover his or her attorney’s fees and costs.’ A
prevailing plaintiff, however, can only recover fees and costs ‘[i]f the court finds that a
special motion to strike is frivolous or is solely intended to cause unnecessary delay . . . .’ ”
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1018 (ComputerXpress).)
The term “ ‘prevailing defendant,’ ” as used in section 425.16, subdivision (c)(1), is
not defined, and it is unstated whether a defendant who prevails on some, but not all, of the
claims challenged in his or her anti-SLAPP motion is entitled to fees and costs.
(ComputerXpress, supra, 93 Cal.App.4th at p. 1016.) But as a general rule, a defendant who
prevails in part in bringing a special motion to strike is entitled to fees and costs, subject to
the trial court’s determination of the appropriate amount awardable based upon the
defendant’s partial success. (See, e.g., City of Colton v. Singletary (2012) 206 Cal.App.4th
751, 782-783; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 339-340
(Mann); ComputerXpress, supra, at pp. 1019-1020.) The entitlement to fees and costs
where the defendant prevails in part, however, is not absolute. As explained by the court in
Mann, supra, at page 340, “a party who partially prevails on an anti-SLAPP motion must
generally be considered a prevailing party unless the results of the motion were so
insignificant that the party did not achieve any practical benefit from bringing the motion.”
The trial court’s determination of whether a defendant prevailed such that he or she is
entitled to fees and costs is reviewed for abuse of discretion. (Ibid.)
Here, Attorneys were successful in obtaining an order striking one of the two causes
of action, abuse of process, alleged against them. (See, e.g., Mann, supra, 139 Cal.App.4th
at p. 340 [defendants prevailed by striking one of four challenged causes of action];
ComputerXpress, supra, 93 Cal.App.4th at p. 1017 [defendants prevailed by striking five of
nine challenged causes of action].) While Attorneys were not successful in achieving their
intended result of dismissing the entire complaint, their success was not trivial or a pyrrhic
victory. The order striking the abuse of process claim had the practical benefit to Attorneys
. 52
of narrowing the litigation, thus impacting discovery, motion practice, and trial preparation.
And the order eliminated the potential imposition of liability under a tort theory distinct
from malicious prosecution. (Cf. Mann, supra, at p. 340 [defendants’ success in striking the
trade libel claim existed, notwithstanding the fact that the similar, but distinct, defamation
claim remained].) Thus, “the results of the motion were [not] so insignificant that
[Attorneys] did not achieve any practical benefit from bringing the motion.” (Ibid.)
Moran v. Endres (2006) 135 Cal.App.4th 952 (Moran), cited by the trial court and
relied on by Carol, does not dissuade us from concluding that Attorneys were “prevailing
defendant[s]” under section 425.16, subdivision (c)(1). In Moran, the defendants
challenged the trial court’s order denying fees and costs after a special motion to strike in
which they had “sought to dismiss the entire complaint, and instead obtained only the most
illusory victory” of striking a claim for civil conspiracy. (Moran, supra, at p. 954.) The
court noted that the order did not result in the striking of any factual allegations, and,
because civil conspiracy is not a separate cause of action, “as a legal matter, the cause of
action for conspiracy added little or nothing to [the] plaintiffs’ case.” (Ibid.) The Moran
court, in finding no error, thus concluded: “To be blunt, [the] defendants’ motion
accomplished nothing, except that [the] plaintiffs were put to the cost of defending the
motion. The possible recovery against [the] defendants did not change. The factual
allegations which [the] defendants had to defend did not change. The work involved in
trying the case did not change. . . . The case was essentially the same after the ruling on the
special motion to strike as it was before.” (Id. at p. 955; see also Martin v. Inland Empire
Utilities Agency (2011) 198 Cal.App.4th 611, 633 [no error in denying fees and costs where
granting of “anti-SLAPP motion with leave to amend was the functional equivalent of a
denial”].)
Moran is entirely distinguishable. It does not support the conclusion that the results
here were so insignificant that Attorneys derived no practical benefit from filing their
motion.
. 53
We conclude that the trial court abused its discretion in denying Attorneys’ request
for attorney fees and costs as prevailing defendants under section 425.16, subdivision (c)(1).
We will remand the case with directions that the trial court conduct proceedings to make an
appropriate award based upon a determination of “the attorney fees incurred for bringing the
anti-SLAPP motion challenging the causes of action stricken from the complaint.
[Citation.]” (Mann, supra, 139 Cal.App.4th at p. 339.)24
IV. DISPOSITION
The order of September 15, 2020, granting in part and denying in part the special
motion of appellants Law Office of Rodney W. Wickers, Rodney W. Wickers, and Christina
M. Wickers to strike respondent Carol Maleti’s complaint, pursuant to Code of Civil
Procedure section 425.16, is reversed only to the extent that the court found that appellants
were not prevailing defendants under Code of Civil Procedure section 425.16,
subdivision (c)(1). The case is remanded to the trial court for further proceedings. On
remand, the trial court is directed to enter a new order denying the motion to strike the
malicious prosecution claim, granting the motion to strike the abuse of process claim, and
granting appellants’ request for attorney fees and costs in connection with obtaining an
order striking the abuse of process claim in an amount to be determined by the trial court in
further proceedings.
Appellants and respondent shall bear their and her respective costs on appeal.
24
We express no view as to the appropriate amount that is awardable as attorney fees
and costs as a result of Attorneys’ prevailing in part on their special motion to strike.
. 54
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
DANNER, J.
WILSON, J.
Maleti v. Wickers et al.
H048393
Trial Court: Santa Cruz County Superior Court
Superior Court No.: 19CV02276
Trial Judges: The Honorable Timothy R. Volkmann
The Honorable Paul Burdick
Attorneys for Defendants and Appellants Zelms Erlich & Mack
Rodney W. Wickers et al.:
Rinat-Klier-Erlich
Amy J. Cooper
Attorneys for Plaintiff and Respondent The Fortress Law Firm
Carol Maleti:
David P. Nemecek, Jr.
Maleti v. Wickers et al.
H048393