Filed 8/1/02
IN THE SUPREME COURT OF CALIFORNIA
RAUL WILSON et al., )
)
Plaintiffs and Appellants, )
) S097444
v. )
) Ct.App. 4/2 E025710
PARKER, COVERT & CHIDESTER )
et al., ) Riverside County
) Super. Ct. No. 326517
Defendants and Respondents. )
__________________________________)
)
RAUL WILSON et al., )
)
Plaintiffs and Appellants, )
)
v. ) Ct.App. 4/2 E025832
)
MARK WILLIAMS, ) Riverside County
) Super. Ct. No. 326517
Defendant and Respondent. )
__________________________________)
)
RAUL WILSON et al., )
)
Plaintiffs and Appellants, )
)
v. ) Ct.App. 4/2 E026853
)
CARL AXUP et al., ) Riverside County
) Super. Ct. No. 326517
Defendants and Respondents. )
__________________________________)
2
One of the elements of an action for malicious prosecution is the absence of
probable cause for bringing the prior action. (Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal.3d 863, 874.) The question presented here is whether the
trial court’s denial, in the prior action, of a special motion to strike under
California’s anti-SLAPP (strategic lawsuit against public participation) statute
(Code Civ. Proc., § 425.16) establishes that probable cause did exist for bringing
the action, precluding maintenance of the malicious prosecution suit absent proof
the ruling was obtained by fraud. We conclude that denial of the motion to strike
does establish the existence of probable cause where, as in this case, the trial
court’s denial ruling was predicated on a finding that the action had potential
merit. We therefore affirm the judgment of the Court of Appeal, which affirmed
the trial court’s sustaining of demurrers to this malicious prosecution action.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying action, Kuzmich v. Mexican Political Assn. (Super. Ct.
Riverside County, 1998, No. 283066) (Kuzmich), arose from demonstrations and
personal confrontations occurring in and around a public school. The plaintiffs
were teachers and administrators at the school who alleged that the demonstrators’
actions and speech amounted to harassment and defamation; the defendants were
allegedly participants in, or organizers of, the protests and accompanying
confrontations.
Several of the Kuzmich defendants, including the Mexican Political
Association (MPA), which organized the demonstrations, and Raul Wilson, an
officer of the MPA, moved to strike the action under the anti-SLAPP statute (Code
Civ. Proc., § 425.16 (hereafter section 425.16)). The trial court denied the motion
on three grounds: the motion was untimely; the defendants had not established
that the action arose from acts “in furtherance of [their] right of petition or free
speech” (§ 425.16, subds. (b)(1), (e)); and the plaintiffs had demonstrated a
3
probability they could prevail on the merits (id., subd. (b)(3)) by establishing, in
the trial court’s words, “a sufficient prima facie showing of facts to sustain a
favorable judgment.”1
The Kuzmich defendants sought review of this ruling by petition to the
Court of Appeal for a writ of mandate. The Court of Appeal granted the petition
in part, vacating the superior court’s order denying the motion to strike as to
Wilson and the MPA. The reviewing court held that the organized protests came
within the protective scope of section 425.16, though some of the personal insults
and slurs alleged to have been made did not. Finding insufficient evidence of a
conspiracy to harass or defame, and therefore examining each defendant’s conduct
individually, the Court of Appeal held that “[a]s for Wilson, there is no evidence
that he personally committed tortious conduct and he is entitled to a dismissal.”
The MPA, the court further held, “cannot be held liable for the actions of certain
of its members, and it has no liability in tort for sponsoring a protest on an issue of
public significance.” (Martinez v. Superior Court (Aug. 29, 1997, E020044)
[nonpub. opn.].) On remand, the superior court granted the motion to strike and
dismissed the action as to Wilson and the MPA.
Wilson and the MPA then brought this suit for malicious prosecution and
other causes of action against the Kuzmich plaintiffs and their attorneys. The
1
In a separate ruling, the Kuzmich trial court also issued a permanent
injunction against harassment. The Kuzmich Court of Appeal reversed the grant of
injunctive relief on procedural grounds. In the present case, the Court of Appeal
held that the Kuzmich trial court’s grant of injunctive relief established probable
cause for that cause of action, but neither plaintiffs’ petition for review nor any of
defendants’ answers raises for our review the correctness of that holding. We
therefore do not address the effect of the order for injunctive relief.
4
superior court sustained demurrers to the complaint by the attorney defendants and
by teachers Carl Axup and K. T. Bowers, and dismissed the action as to them.
The Court of Appeal affirmed. Observing that “the denial of a SLAPP suit
motion to strike parallels the denial of a motion for summary judgment,” the court
followed Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375 (Roberts),
which held that denial of a defense summary judgment motion normally
establishes probable cause. As did the Roberts court (id. at p. 384), the Court of
Appeal reasoned that the foundation for the contrary view, enunciated in Lucchesi
v. Giannini & Uniack (1984) 158 Cal.App.3d 777 (Lucchesi), had been
undermined by this court’s intervening decision in Sheldon Appel Co. v. Albert &
Oliker, supra, 47 Cal.3d 863 (Sheldon Appel), adopting an objective standard of
probable cause for malicious prosecution actions. One justice dissented from this
holding, arguing that, because survival of a section 425.16 motion to strike
requires only a prima facie case, denial of such a motion does not establish
probable cause. The dissenter maintained that Roberts conflicted with this court’s
approving citation of Lucchesi in Crowley v. Katleman (1994) 8 Cal.4th 666, 692-
693, footnote 15.
We granted plaintiffs’ petition for review.
DISCUSSION
We addressed the probable cause element of malicious prosecution
comprehensively in Sheldon Appel, supra, 47 Cal.3d 863. We first considered the
policy reasons for adhering to limitations on the malicious prosecution tort,
reiterating that the tort is disfavored both because of its “potential to impose an
undue ‘chilling effect’ on the ordinary citizen’s willingness to report criminal
conduct or to bring a civil dispute to court” (id. at p. 872) and because, as a means
of deterring excessive and frivolous lawsuits, it has the disadvantage of
constituting a new round of litigation itself (id. at p. 873). A preferable approach
5
is “the adoption of measures facilitating the speedy resolution of the initial lawsuit
and authorizing the imposition of sanctions for frivolous or delaying conduct
within that first action itself.” (Ibid.)
Applying that policy perspective to the delineation of the probable cause
element, this court held, first, that the existence or nonexistence of probable cause
is a legal question to be resolved by the court in the malicious prosecution case;
litigants are thus protected against the danger that a lay jury would mistake a
merely unsuccessful claim for a legally untenable one. (Sheldon Appel, supra, 47
Cal.3d at pp. 874-877.) We further held that probable cause is determined
objectively, i.e., without reference to whether the attorney bringing the prior action
believed the case was tenable (id. at pp. 877-882), and that the standard of
probable cause to bring a civil suit was equivalent to that for determining the
frivolousness of an appeal (In re Marriage of Flaherty (1982) 31 Cal.3d 637), i.e.,
probable cause exists if “any reasonable attorney would have thought the claim
tenable.” (Sheldon Appel, supra, at p. 886.) This rather lenient standard for
bringing a civil action reflects “the important public policy of avoiding the chilling
of novel or debatable legal claims.” (Id. at p. 885.) Attorneys and litigants, we
observed, “ ‘have a right to present issues that are arguably correct, even if it is
extremely unlikely that they will win . . . .’ ” (Ibid., quoting In re Marriage of
Flaherty, supra, at p. 650.) Only those actions that “ ‘any reasonable attorney
would agree [are] totally and completely without merit’ ” may form the basis for a
malicious prosecution suit. (Ibid.)
Long before Sheldon Appel was decided, decisions in California and
elsewhere established that a trial court judgment or verdict in favor of the plaintiff
or prosecutor in the underlying case, unless obtained by means of fraud or perjury,
6
establishes probable cause to bring the underlying action, even though the
judgment or verdict is overturned on appeal or by later ruling of the trial court.2
Although this rule predates Sheldon Appel, it is motivated by much the same
policy concern. Because malicious prosecution suits have the potential to penalize
and deter the legitimate invocation of the judicial process for redress of
grievances, only claims that a reasonable litigant or attorney would have seen as
lacking all merit should form the basis for such a suit. Claims that have succeeded
at a hearing on the merits, even if that result is subsequently reversed by the trial
or appellate court, are not so lacking in potential merit that a reasonable attorney
or litigant would necessarily have recognized their frivolousness.
Thus, in Fairchild v. Adams, supra, 170 Cal.App.2d 10, the superior court
jury in the underlying case, a will contest, found the will to have been made under
undue influence; the Court of Appeal affirmed, but this court reversed, holding the
evidence insufficient to show that undue pressure had been brought to bear on the
testamentary act itself. (Id. at pp. 11-12.) In the devisee’s ensuing malicious
prosecution action against the objector, the appellate court held the jury’s verdict
in the underlying case established probable cause for the contest despite its
reversal on appeal. The jurors had “considered the evidence produced at the will
contest alone sufficient, not only to justify the commencement of the proceeding,
but also to support the judgment that the will and codicil were results of such
2
Bealmear v. So. Cal. Edison Co. (1943) 22 Cal.2d 337, 340; Carpenter v.
Sibley (1908) 153 Cal. 215, 218; Holliday v. Holliday (1898) 123 Cal. 26, 32;
Cowles v. Carter (1981) 115 Cal.App.3d 350, 356, 359; Fairchild v. Adams (1959)
170 Cal.App.2d 10, 15; see also Crescent Live Stock Co. v. Butchers’ Union
(1887) 120 U.S. 141, 149-151; Restatement Second of Torts, section 675,
comment b, page 458; Prosser and Keeton, The Law of Torts (5th ed. 1984)
section 120, page 894.
7
undue influence. They were declared by the Supreme Court to be in error—but
not unreasonable—in their opinions. [¶] . . . [¶] The favorable outcome of the
proceedings in the court below is conclusive evidence, in the absence of fraud, of
the existence of probable cause . . . notwithstanding reversal by the Supreme
Court.” (Id. at p. 15, italics added.)
Similarly, in Cowles v. Carter, supra, 115 Cal.App.3d 350, in the
underlying case, a civil action for child stealing and kidnapping, the jury returned
a verdict for the plaintiffs, but the trial court granted judgment for the defense
notwithstanding the verdict. (Id. at pp. 353-354.) In the defendant’s ensuing
malicious prosecution action, the appellate court held the jury’s favorable verdict
for the plaintiffs in the underlying case established probable cause for the action
despite its vacation by the trial court. Quoting from a Georgia decision, the court
explained, “ ‘it would be hard law which would render a plaintiff liable in
damages for instituting an action, wherein he made a truthful and honest statement
of the facts, in the event that, notwithstanding a judge of the superior court was
satisfied that upon those facts the plaintiff had a meritorious case, a ruling to that
effect should afterwards be set aside. . . . [T]he inquiry [is] not whether the
plaintiff had in fact a good and valid cause of action, but whether this was
apparently true, and it was accordingly the right of the plaintiff to invoke a
judicial decision concerning the merits of the case presented for determination
. . . .’ ” (Id. at p. 357, quoting Short v. Spragins (1898) 104 Ga. 628 [30 S.E. 810];
italics added.)
The Court of Appeal in Roberts, supra, 76 Cal.App.4th 375, relied upon
much the same reasoning to hold that denial of a defense motion for summary
judgment in the prior case established probable cause. In the underlying case in
Roberts, an insurer’s action against a physician for fraud and other causes of
action, the trial court denied a defense motion for summary judgment on the fraud
8
claim, finding material questions of fact. At trial, however, the fraud claim was
resolved in the defendant’s favor. (Id. at pp. 380-381.) In the physician’s
subsequent malicious prosecution action, the appellate court held the prior
summary judgment denial was “a reliable indicator that probable cause [was]
present.” (Id. at p. 383.) Just as a trial victory by the underlying plaintiff “shows
that the suit was not among the least meritorious of meritless suits, those which are
totally meritless and thus lack probable cause,” so too “[d]enial of a defendant’s
summary judgment motion provides similarly persuasive evidence that a suit does
not totally lack merit.” (Ibid.) A trial court’s conclusion that issues of material
fact remain for trial “necessarily impl[ies] that the judge finds at least some merit
in the claim. The claimant may win, if certain material facts are decided
favorably. This finding (unless disregarded) compels [the] conclusion that there is
probable cause, because probable cause is lacking only in the total absence of
merit.” (Ibid.) Giving effect to this conclusion “serves the policy expressed in
Sheldon Appel to discourage dubious malicious prosecution suits.” (Id. at
p. 384.)3
Several recent cases from other jurisdictions have reached the same
conclusion as to denial of defense summary judgment motions, directed verdict
motions, and similar efforts at pretrial termination of the underlying case. In
3
Roberts is the only published California decision holding denial of a
defense summary judgment motion demonstrates the existence of probable cause.
That holding, however, was prefigured in Hufstedler, Kaus & Ettinger v. Superior
Court (1996) 42 Cal.App.4th 55, 69, where the appellate court observed that
denial of summary judgment in the underlying libel case, while not dispositive,
supported the conclusion that probable cause existed for that action, since “if the
statements [sued upon in the libel case] were so clearly expressions of opinion that
any reasonable attorney would have so viewed them, [the underlying defendant’s]
motion for summary judgment would have been granted.”
9
Davis v. Butler (Ga.Ct.App. 1999) 522 S.E.2d 548, for example, an action for
abusive civil litigation (which required proof that the prior litigation was
groundless, frivolous or vexatious) was held precluded where a defense motion for
summary judgment had been denied in the underlying suit: “[S]uch denial of
summary judgment constitutes a legal determination that the action has substantial
justification, because it is not groundless or frivolous and can proceed to jury trial.
Thus, it was not groundless, frivolous, or vexatious in fact or law.” (Id. at p. 550.)
Again, in Porous Media Corp. v. Pall Corp. (8th Cir. 1999) 186 F.3d 1077, the
court, applying Minnesota law, held denial of a directed verdict for the defense
established probable cause for the underlying suit: “If reasonable jurors could find
in Pall’s favor, it follows that there was probable cause for bringing the
counterclaims . . . . This is fatal to an essential element of Porous’s claims for
malicious prosecution.” (Id. at p. 1080.)4
The same result has been held to follow under the federal Noerr-
Pennington doctrine,5 which immunizes plaintiffs from counterclaims for, e.g.,
violation of antitrust law, based merely on having initiated nonsham business
litigation. Sham litigation, for this purpose, is the “pursuit of claims so baseless
that no reasonable litigant could realistically expect to secure favorable relief.”
(Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc.
4
Accord, Butler v. Ratner (App.Div. 1994) 619 N.Y.S.2d 871, 874 (issuance
of temporary restraining order creates presumption of probable cause); Skinder-
Strauss v. Mass. Continuing Legal Educ. (D.Mass. 1994) 870 F.Supp. 8, 11 (claim
that survives summary judgment does not lack objective merit); contra, Kirk v.
Marcum (Ky.Ct.App. 1986) 713 S.W.2d 481, 485 (denial of directed verdict for
defense does not establish probable cause).
5
So called after Eastern R. Conf. v. Noerr Motors (1961) 365 U.S. 127 and
Mine Workers v. Pennington (1965) 381 U.S. 657.
10
(1993) 508 U.S. 49, 62.) A finding of probable cause to bring the action therefore
precludes a finding the action was a sham. (Id. at pp. 62-63.) Significantly for our
purposes, the denial of summary judgment in the underlying action has been held
to demonstrate the action was not a sham. (Harris Custom Builders, Inc. v.
Hoffmeyer (N.D.Ill. 1993) 834 F.Supp. 256, 261-262.) “An action that is well
enough grounded, factually and legally, to survive a motion for summary
judgment is sufficiently meritorious to lead a reasonable litigant to conclude that
they had some chance of success on the merits. Consequently, plaintiffs’
infringement action is not a sham and, under Noerr-Pennington, cannot subject
Harris to antitrust liability.” (Ibid., italics added; accord, Porous Media Corp. v.
Pall Corp., supra, 186 F.3d at p. 1080, fn. 4; Gen-Probe, Inc. v. Amoco Corp., Inc.
(S.D.Cal. 1996) 926 F.Supp. 948, 958.)
The same considerations lead us to conclude that a trial court’s denial of a
motion to strike under section 425.16, on the ground that the plaintiff has
established the requisite probability of success, establishes probable cause to bring
the action, and precludes the maintenance of a subsequent malicious prosecution
action, unless the prior ruling is shown to have been obtained by fraud or perjury.
The rights of litigants and attorneys to bring nonfrivolous civil actions, “ ‘even if it
is extremely unlikely that they will win’ ” (Sheldon Appel, supra, 47 Cal.3d at
p. 885), would be unduly burdened were they exposed to tort liability for
malicious prosecution for actions that had been found potentially meritorious
under section 425.16.
In order to establish a probability of prevailing on the claim (§ 425.16,
subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “ ‘state[] and
substantiate[] a legally sufficient claim.’ ” (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1123, quoting Rosenthal v. Great Western
Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Put another way, the plaintiff
11
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40
Cal.App.4th 539, 548; accord, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260,
274.) In deciding the question of potential merit, the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the defendant
(§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should grant the motion
if, as a matter of law, the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the claim. (Paul for Council
v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365.)
In denying a motion to strike on the ground that the plaintiff has established
the requisite probability of success, therefore, the trial court necessarily concludes
that the plaintiff has substantiated a legally tenable claim through a facially
sufficient evidentiary showing and that the defendant’s contrary showing, if any,
does not defeat the plaintiff’s as a matter of law. This determination establishes
probable cause to bring the claim, for such an action clearly is not one that “ ‘any
reasonable attorney would agree . . . is totally and completely without merit.’ ”
(Sheldon Appel, supra, 47 Cal.3d at p. 885.) A claim that is legally sufficient and
can be substantiated by competent evidence is, on the contrary, one that a
“reasonable attorney would have thought . . . tenable.” (Id. at p. 886.) The
opposite rule, permitting such claims to form the basis for malicious prosecution
liability, would unduly limit the right to invoke judicial remedies in pursuit of
nonfrivolous claims. (Cf. Professional Real Estate Investors, Inc. v. Columbia
Pictures Industries, Inc., supra, 508 U.S. at p. 56 [imposition of antitrust liability
for the initiation of nonsham litigation would tend to infringe First Amendment
right of petition].)
12
We are not persuaded by plaintiffs’ argument, echoing the dissenter in the
Court of Appeal, that the denial of a section 425.16 motion does not demonstrate
probable cause because the trial court, in deciding such a motion, determines only
whether the plaintiff has substantiated a prima facie case and does not weigh one
side’s evidence against the other in the manner of a jury or court trying the merits.
A litigant or attorney who possesses competent evidence to substantiate a legally
cognizable claim for relief does not act tortiously by bringing the claim, even if
also aware of evidence that will weigh against the claim. Plaintiffs and their
attorneys are not required, on penalty of tort liability, to attempt to predict how a
trier of fact will weigh the competing evidence, or to abandon their claim if they
think it likely the evidence will ultimately weigh against them. They have the
right to bring a claim they think unlikely to succeed, so long as it is arguably
meritorious. (Sheldon Appel, supra, 47 Cal.3d at p. 885.)6 That the trial court
does not, pursuant to section 425.16, weigh the evidence or decide disputed
questions of fact does not, therefore, undermine the conclusion that a claim found
to have a probability of success under that statute was brought with probable
cause.
Nor, in this case, did the Kuzmich Court of Appeal’s partial vacation of the
trial court’s section 425.16 order vitiate its effect. The appellate court in Kuzmich
held the superior court legally erred in finding potential merit to the claims against
two of the Kuzmich defendants, but not that the lower court decided the case
6
Indeed, a plaintiff or his or her attorney may not be aware, when initiating
the action, of evidence in the defendant’s possession that weighs against the claim.
Considering the plaintiff’s prima facie case alone is appropriate for this reason as
well, for probable cause to bring an action depends on the facts known to the
litigant or attorney at the time the action is brought. (Sheldon Appel, supra, 47
Cal.3d at pp. 880-884.)
13
irrationally. (See Fairchild v. Adams, supra, 170 Cal.App.2d at p. 15 [Supreme
Court held jurors “to be in error—but not unreasonable—in their opinions”].)7
That the Kuzmich plaintiffs prevailed in the trial court shows their action was not
so clearly and completely without merit as to justify tort liability for its initiation;
though the Court of Appeal held the evidence of Wilson’s and the MPA’s liability
insufficient to proceed, it did not hold or imply that a reasonable attorney could
not have believed the case had potential merit. It would be a “ ‘hard law,’ ”
indeed, that “ ‘would render a plaintiff liable in damages for instituting an action
. . . in the event that, notwithstanding a judge of the superior court was satisfied
that upon those facts the plaintiff had a meritorious case, a ruling to that effect
should afterwards be set aside.’ ” (Cowles v. Carter, supra, 115 Cal.App.3d at
p. 357.)
To support their contention that denial of a section 425.16 motion should
not be deemed to establish probable cause, plaintiffs rely heavily on Lucchesi,
supra, 158 Cal.App.3d 777, and on this court’s favorable citation of Lucchesi in
Crowley v. Katleman, supra, 8 Cal.4th 666 (Crowley), both of which we now
examine.8
7
See also Butler v. Ratner, supra, 619 N.Y.S.2d at pages 873-874 (issuance
of temporary restraining order, though vacated by appellate court, creates
presumption of probable cause); Chapman v. Grimm & Grimm, P.C. (Ind.Ct.App.
1994) 638 N.E.2d 462, 464-465 (contempt citation against defendant in child
visitation action, though reversed by appellate court for lack of jurisdiction,
conclusively establishes probable cause to bring action).
8
The dissenting justice below, in addition to relying on Lucchesi and
Crowley, cited decisions refusing effect to preliminary rulings in criminal cases.
(See, e.g., Diemer v. Herber (1888) 75 Cal. 287, 290 [magistrate’s holdover
order]; De La Riva v. Owl Drug Co. (1967) 253 Cal.App.2d 593, 595-597 [denial
of motion to set aside information].) These decisions are inapposite, however,
(footnote continued on next page)
14
In the underlying action in Lucchesi, an action to cancel a deed and to quiet
title, the court denied a defense motion for summary judgment; the Lucchesi
opinion does not state, however, whether the motion was denied because of the
existence of triable issues of material fact (Code Civ. Proc., § 437c, subd. (c)) or
for other reasons. (Lucchesi, supra, 158 Cal.App.3d at p. 784.) The defendant
ultimately prevailed at trial. (Ibid.)
In the defendant’s ensuing malicious prosecution action, the appellate court
rejected the former plaintiffs’ contention that denial of the summary judgment
motion in the underlying case established probable cause for bringing the action,
in part because a summary judgment motion may be denied for reasons other than
existence of triable issues: “A motion for summary judgment may be denied for
any of several reasons: (1) there may be a triable issue as to a material fact; (2) the
supporting affidavits may be insufficient; (3) the only proof as to a material fact
may be an affidavit or declaration by the sole witness to the fact; or (4) a material
fact may involve an individual’s state of mind and that fact is sought to be
established solely by that individual’s affirmation thereof. [Citations.]”
(Lucchesi, supra, 158 Cal.App.3d at p. 787; see Code Civ. Proc., § 437c, subds.
(b) [motion may be denied if supporting papers do not include a separate statement
of undisputed facts], (e) [motion may be denied if the only proof of one or more
material facts is the declaration of the sole witness to the fact, or a material fact as
to a person’s state of mind is sought to be established solely by the person’s
testimony].)
(footnote continued from previous page)
because our decision here rests on the relatively low standard of probable cause
required to bring a civil action. (Sheldon Appel, supra, 47 Cal.3d at p. 885.)
15
The Lucchesi court’s reasoning to this point is indisputably correct. Denial
of a summary judgment motion on procedural or technical grounds, rather than for
existence of triable issues of material fact, says nothing regarding the potential
merit of the action and hence does not establish probable cause for its initiation. A
parallel distinction can be made with regard to motions to strike under section
425.16: denial of the motion solely on technical or procedural grounds, for
reasons that cannot be determined, or because the cause of action does not “aris[e]
from any act of [the defendant] in furtherance of the [defendant’s] right of petition
or free speech” (§ 425.16, subd. (b)(1)), rather than because the plaintiff has
shown a probability of success, would say nothing about the action’s potential
merit and would not establish probable cause.
Lucchesi continues, however, with the statement that “[e]ven when the
denial is based on the first ground that a material issue of fact does exist, this
procedure still falls short of a hearing on the merits.” (Lucchesi, supra, 158
Cal.App.3d at p. 787.) The decision goes on to hold, as well, that denial of a
nonsuit motion does not establish probable cause because a nonsuit must be denied
“if there is any substantial evidence tending to prove all the controverted facts
necessary to establish the plaintiff’s case,” a conclusion that, like denial of
summary judgment, is “not a determination on the merits.” (Ibid.)
This latter part of Lucchesi’s reasoning has been undermined by this court’s
subsequent decision in Sheldon Appel. As discussed above, our decision in that
case clarified that 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. (Sheldon Appeal, supra, 47 Cal.3d at pp. 885-886.) Denial of a defense
summary judgment motion on grounds that a triable issue exists, or of a nonsuit,
while falling short of a determination of the merits, establishes that the plaintiff
16
has substantiated, or can substantiate, the elements of his or her cause of action
with evidence that, if believed, would justify a favorable verdict. As also
discussed above, a claimant or attorney who is in possession of such evidence has
the right to bring the claim, even where it is very doubtful the claim will ultimately
prevail. (Id. at p. 885.) Lucchesi, supra, 158 Cal.App.3d 777, is disapproved to
the extent it holds otherwise.
Our favorable citation of Lucchesi in Crowley did not amount to approval
of all of Lucchesi’s reasoning. The issue raised on review in Crowley was whether
we should retain an existing rule that “a suit for malicious prosecution lies for
bringing an action charging multiple grounds of liability when some but not all of
those grounds were asserted with malice and without probable cause.” (Crowley,
supra, 8 Cal.4th at p. 671.) In passing, we briefly addressed the defendants’
unrelated argument, which they had raised but abandoned during the trial court
proceedings, that denial of a defense summary adjudication motion in the
underlying case established probable cause. We remarked merely that the point
“was without merit for the reasons stated in [Lucchesi].” (Id. at p. 675, fn. 5.)
Later in the opinion we again cited Lucchesi, this time for the proposition that
denial of the summary adjudication motion was not a judgment on the merits for
the purposes of the rule “that an interim adverse judgment on the merits, even
though subsequently set aside on motion or on appeal, conclusively establishes
probable cause for the prior action.” (Crowley, supra, at pp. 692-693, fn. 15.)
We did not, in Crowley, indicate whether we approved the result in
Lucchesi because, as the Lucchesi court had explained, summary judgment may be
denied on any of a number of procedural or technical grounds, or whether we
agreed with Lucchesi that even a determination of the existence of triable issues
would not establish probable cause. Our favorable but passing mention of
17
Lucchesi, therefore, did not constitute a full endorsement of its reasoning, which
we have here disapproved in part for the reasons already given.
Plaintiffs also contend that the determination of probable cause from a
finding or ruling in the underlying case is actually an aspect of collateral estoppel,
and hence no such determination may be made in circumstances where no
collateral estoppel would arise, as where the prior decision was neither final nor on
the merits; application of collateral estoppel in these circumstances, plaintiffs
argue, violates their due process and jury trial rights. In our view, plaintiffs’
invocation of collateral estoppel is a red herring. The determination of probable
cause does not operate, like collateral estoppel, to preclude relitigation of an issue
of fact. Probable cause, for purposes of a malicious prosecution action, is a legal
issue, not a factual one. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-877.) The
determination arises, moreover, not because the same issue was litigated in the
prior case, but because the result in the prior case (whether a verdict or judgment
in the plaintiff’s favor, or denial of a defense summary judgment or SLAPP
motion) establishes the existence of probable cause as a matter of law, absent
proof of fraud or perjury. The rule derives from the definition of probable cause—
which is framed so as not to infringe on the right to bring nonfrivolous litigation—
rather than from the doctrine of res judicata or any of its branches.
Lastly, plaintiffs contend that application of the probable cause
determination in these circumstances contravenes the terms, and defeats the intent,
of the anti-SLAPP statute. On the first point, plaintiffs cite section 425.16,
subdivision (b)(3), which provides that a trial court’s determination of a
probability that a claim will prevail, in denying a motion to strike, is inadmissible
“at any later stage of the case, and no burden of proof or degree of proof otherwise
applicable shall be affected by that determination.” This provision, however,
18
clearly addresses the effects of the motion’s denial in further proceedings in the
same case, not in derivative litigation commenced subsequently.
As to legislative intent, plaintiffs suggest that a rule equating denial of the
section 425.16 motion to strike with probable cause will deter SLAPP defendants
from taking advantage of section 425.16, for fear that denial will bar any
malicious prosecution action, thus defeating the legislative intent that the anti-
SLAPP procedures be employed to quickly end abusive litigation against public
participation and speech. We are not persuaded the statutory scheme will be
undermined in this manner. Given the low standard of probable cause under
Sheldon Appel, supra, 47 Cal.3d 863, and our holding there that probable cause is
decided by the court, defendants can hardly be confident in their ability to
maintain a malicious prosecution action even if they forgo the motion to strike and
defeat a SLAPP suit at trial. The anti-SLAPP statute, on the other hand, provides
for an award of attorney fees and costs to the defendant who makes, and prevails
on, a motion to strike. (§ 425.16, subd. (c).) These considerations should provide
adequate incentive for a defendant who desires the speedy and low-cost
termination of abusive litigation against him or her, and who is confident the
litigation is truly meritless, to employ the statutory procedures even at some risk of
losing the opportunity for a subsequent malicious prosecution suit.
For the above reasons, we conclude the Kuzmich court’s denial of the
defendants’ motion to strike under section 425.16 established probable cause to
bring the Kuzmich action. Plaintiffs in the present malicious prosecution action
have not attempted to show that that ruling was obtained by fraud or perjured
testimony. Probable cause therefore existed as a matter of law for initiation of
Kuzmich, negating a necessary element of the malicious prosecution action. As
the Court of Appeal also concluded, the demurrers to that cause of action were
therefore properly sustained.
19
DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
1
CONCURRING OPINION BY BROWN, J.
Although I concur with most of the majority’s reasoning, I write separately
because I find its distinction of Crowley v. Katleman (1994) 8 Cal.4th 666
(Crowley) unpersuasive. (See maj. opn., ante, at pp. 16-17.) According to the
majority, “[w]e did not, in Crowley, indicate whether we approved the result in
Lucchesi [v. Giannini & Uniack (1984) 158 Cal.App.3d 777] because . . .
summary judgment may be denied on any of a number of procedural or technical
grounds, or whether we agreed with Lucchesi that even a determination of the
existence of triable issues would not establish probable cause.” (Maj. opn., ante,
at p. 16.) Based on this ambiguity in Crowley, the majority concludes that “[o]ur
favorable but passing mention of Lucchesi . . . did not constitute a full
endorsement of its reasoning . . . .” (Maj. opn., ante, at pp. 16-17.) After
reviewing Crowley, I disagree.
In Crowley, Carole Katleman, represented by counsel (together, the
defendants), filed a will contest, alleging six separate grounds for invalidating the
will. (Crowley, supra, 8 Cal.4th at p. 673.) Arthur J. Crowley, the principal
beneficiary of the will, filed a motion for summary adjudication. (Ibid.) The
probate court granted the motion as to one of the grounds, but “denied the motion
as to the remaining grounds, ruling there were triable issues of material fact as to
each.” (Ibid., italics added.) After prevailing in the will contest, Crowley sued the
defendants for malicious prosecution. (Id. at p. 674.) In their demurrer to the
2
malicious prosecution action, the defendants contended, “by denying Crowley’s
motion for summary adjudication of issues as to all grounds of the will contest
except lack of due execution, the probate court ‘necessarily determined’ there was
probable cause for the remaining grounds . . . .” (Id. at p. 675.) We, however,
rejected this contention in a footnote, finding it “was without merit for the reasons
stated in Lucchesi . . . .” (Crowley, supra, 8 Cal.4th at p. 675, fn. 5.)
Because the probate court denied the motion for summary adjudication in
the will contest on the merits, our footnote in Crowley necessarily endorsed
Lucchesi’s holding that “a determination of the existence of triable issues would
not establish probable cause.” (Maj. opn., ante, at p. 16.) Like the majority, I
disagree with this holding. (See id. at pp. 15-16.) I would therefore disapprove of
Crowley to the extent it adopted this holding of Lucchesi.
BROWN, J.
1
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Wilson v. Parker, Covert & Chidester
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 87 Cal.App.4th 1337
Rehearing Granted
__________________________________________________________________________________
Opinion No. S097444
Date Filed: August 1, 2002
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Joan F. Ettinger, Temporary Judge*
__________________________________________________________________________________
Attorneys for Appellant:
Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew for Plaintiffs and Appellants.
Armen L. George, in pro. per., and for Alan D. Barbour and Miyoko O. Barbour as Amici Curiae on behalf
of Plaintiffs and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Mark L. Keifer, Laine E. Hedwall and Matthew E. Voss
for Defendants and Respondents Parker, Covert & Chidester, Spencer E. Covert and Mark Williams.
Reich, Adell, Crost & Cvitan, Paul Crost and Carlos R. Perez for Defendants and Respondents Reich,
Adell, Crost & Cvitan and Marianne Reinhold.
Stream & Stream, David D. Werner and Jamie E. Wrage for Defendants and Respondents Carl Axup and
K. T. Bowers.
Rutan & Tucker and David C. Larsen for California School Boards Association Education Legal Alliance
as Amicus Curiae on behalf of Defendants and Respondents Parker, Covert & Chidester, Spencer E.
Covert, Mark Williams, Carl Axup and K. T. Bowers.
Hinshaw & Culbertson, Ronald E. Mallen and Paul E. Vallone as Amici Curiae on behalf of Defendants
and Respondents.
Sidley Austin Brown & Wood and Mark E. Haddad for Amoco Corporation and Amoco Technology
Company as Amici Curiae on behalf of Defendants and Respondents.
Best Best & Krieger, Jack B. Clarke, Jr., John F. Walsh, Angelica Y. Castillo and Megan K. Starr for David
Kuzmich, Carole Castle and Ellen Schwartz as Amici Curiae on behalf of Defendants and Respondents.
*Pursuant to California Constitution, article VI, section 21.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Yvonne M. Renfrew
Law Offices of Yvonne M. Renfrew
692 Moulton Avenue, Studio B
Los Angeles, CA 90031-3290
(323) 222-0500
Paul Crost
Reich, Adell, Crost & Cvitan
501 Shatto Place, Suite 100
Los Angeles, CA 90020
(213) 386-3860
David D. Werner
Stream & Stream
4201 Brockton Avenue, Suite 200
Riverside, CA 92501
(909) 276-8444