Opinion
G051732
06-09-2017
BILL BANCROFT et al., Plaintiffs and Respondents, v. ANTHONY AULISIO, JR., Defendant and Appellant.
Anthony Aulisio, Jr., in pro. per. for Defendant and Appellant. Law Office of Neal C. Swensen, for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00692736) OPINION Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Reversed. Anthony Aulisio, Jr., in pro. per. for Defendant and Appellant. Law Office of Neal C. Swensen, for Plaintiffs and Respondents.
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Anthony Aulisio, Jr., appeals from the entry of judgment after a bench trial in which the trial court found in favor of Bill Bancroft and BLB Enterprises, doing business as Patrol One (Patrol One), on their malicious prosecution claim against Aulisio. In an underlying lawsuit, Aulisio sued Bancroft and Patrol One for conversion and related claims after the Jeep vehicle he owned through a revocable living trust was towed from outside his home in a condominium complex. A Patrol One employee wrote the parking ticket that resulted in the Jeep being towed for lack of current vehicle registration required by the homeowners' association (HOA) parking rules. In the underlying lawsuit, Aulisio presented a police report and the testimony of a police officer who confirmed with the tow yard where Aulisio's Jeep was taken that a moving permit was visible through the Jeep's windshield on its dashboard. California law authorizes one-day moving permits issued by the Department of Motor Vehicles (DMV) so that a vehicle lawfully may be operated without current registration in order to obtain a smog test or other repair work necessary to register the vehicle. (Veh. Code, § 4002.) Aulisio presented evidence that his DMV moving permit was valid for the day on which he was ticketed and towed. The jury, however, rendered a defense verdict in the underlying lawsuit and, after an intervening appeal, Patrol One and Bancroft sued Aulisio for malicious prosecution.
Malicious prosecution is a disfavored cause of action. (See, e.g., Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1342, fn. 21 [noting "strict limits placed on the tort of malicious prosecution"]; Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 493 (Downey).) Although Aulisio did not prevail in the underlying lawsuit, his claim for wrongful towing was not devoid of probable cause, an essential element for malicious prosecution. The high bar to prevail on a malicious prosecution claim required Patrol One to establish as a matter of law that no reasonable person could consider a DMV moving pass as a registration substitute on the day it is valid. Patrol One did not meet that threshold. To the contrary, a reasonable person could view the permit as tantamount to registration because both have the same effect of making the vehicle lawful to operate for the specified period. Consequently, the moving permit furnished grounds for a tenable claim that Patrol One's ticketing of the vehicle fell outside the purpose of the HOA rules requiring current registration. Patrol One therefore failed to establish the lack of probable cause necessary to prevail on its malicious prosecution claim.
But Aulisio also sued Bancroft, Patrol One's president, personally. As we explain, the record does not establish Aulisio had probable cause to do so, but the absence of probable cause does not satisfy the separate malice requirement necessary for malicious prosecution. There is no merit in Bancroft's theory of malice premised on Aulisio's decision to pay court filing fees for his underlying lawsuit rather than $400 to retrieve the Jeep from the tow yard. Nor does the record support the trial court's conclusion Aulisio acted maliciously because he did not attempt to retrieve personal property from the Jeep. Instead, the "Synopsis of Aulisio Direct Examination" that the malicious prosecution plaintiffs presented to the court demonstrates Aulisio attempted to retrieve both the Jeep and its contents to no avail. We therefore reverse the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
As suggested by our introduction, this case has an extensive and convoluted history. Aulisio filed his underlying suit in June 2012, based on the seizure of his vehicle that occurred nearly three years earlier in June 2009. He alleged five causes of action: conversion, trespass to chattels, extortion, intentional infliction of emotional distress (IIED), and conspiracy. The Jeep belonged to a trust Aulisio had created, the CAAJ Leasing Trust (CAAJ); and Aulisio was the trust's sole settlor, trustee, and beneficiary.
According to Aulisio, an attorney representing CAAJ drew up the complaint with his (Aulisio's) input. The attorney filed the complaint on CAAJ's behalf regarding the Jeep, while Aulisio did so regarding personal property in which he claimed a possessory interest inside the Jeep when it was towed, primarily a laptop computer and tax preparation software Aulisio utilized as an accountant. According to Aulisio, the laptop and software were particularly valuable precisely because they were older, out of production, and therefore helpful in preparing or amending tax returns of corresponding vintage.
The underlying lawsuit named in all five causes of action not only Patrol One and Bancroft, but also the HOA's management company (Optimum Property Management) and its president or chief executive personally (Debra Kovach), and the tow company (PD Transport, doing business as Southside Towing) and one of its former owners personally (John Vach). The defendants filed demurrers, which the trial court sustained as to the extortion, IIED, and conspiracy causes of action, but not conversion and trespass to chattels.
It is not clear from the record whether Bancroft filed a demurrer on any grounds independent from Patrol One, for example, to challenge being named personally as a defendant. Indeed, it is not clear whether Bancroft or Patrol One filed a demurrer at all. We deny as irrelevant Aulisio's request for judicial notice of the trial court's minute orders in the underlying action denying demurrers by other defendants. (Evid. Code, §§ 452, 459.)
The trial court apparently explained to Aulisio that conspiracy, as stated in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, "Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." Put another way, "'A bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement. Therefore, it is the acts done and not the conspiracy to do them which should be regarded as the essence of the civil action.'" (Id. at p. 511.) Consequently, the court sustained defendants' demurrer to the conspiracy cause of action, but allowed Aulisio to present evidence the defendants conspired to harm him.
At trial, however, Aulisio presented no evidence of the essence of a conspiracy, namely, an agreement among the alleged tortfeasors to commit a tort against him, which they then carried out. Aulisio's evidence showed only that the defendants claimed they validly towed the Jeep because of its expired tags. As the trial court subsequently explained to Aulisio, "The mere fact that they're approaching the same end is not evidence that they conspired, that they — that the requirements of a conspiracy were met."
In hindsight, Aulisio's trial brief revealed the deficiency of his conspiracy theory at the outset. He alleged no agreement or meeting of coconspirators, but merely that "upon being advised that Plaintiffs' vehicle was legally parked and had a provisional permit[], which [some] defendants acknowledged and admitted, defendants refused to return Plaintiffs' property . . . unless and until Plaintiff paid the fees demanded," "knowing that they had no legal right to" retain the vehicle and contents. Aulisio claimed that one or more defendants "acknowledged and admitted" the existence of his provisional moving permit based on the contents of a police report admitted at trial and the officer's corresponding testimony. Specifically, the officer explained that when he called the tow yard where Aulisio's vehicle was stored, the person who answered the phone viewed the Jeep and acknowledged that the moving permit on the dashboard was visible through the windshield.
Aulisio proceeded to trial on his conversion and trespass to chattels causes of action and, after a two day jury trial, the jury returned a defense verdict. After the verdict, the trial court observed, addressing Aulisio, "There is no evidence in this case that they [the defendants] had met or conferred. You assumed they had because they, I guess, were going for the same end . . . . But the statute — I instructed the jury on conspiracy. And you completely ignored the obligation of showing that they had made an agreement and knew about [some plan to commit a tort]."
Aulisio appealed the judgment against him concerning his personal property in the Jeep and he appealed on behalf of CAAJ the judgment finding no conversion of the Jeep when it was towed. At the outset of trial, the trial court had precluded Aulisio from representing the trust because, while Aulisio had gone to law school and claimed to have passed the bar exam, he did not obtain a license to practice law. Aulisio explained that the attorney who had filed the complaint on behalf of the trust withdrew before the trial because of the "press of business."
On appeal, in a matter of first impression, we held that the "sole trustee of a revocable living trust who is also the sole settlor and beneficiary of the trust assets he or she is charged to protect" does not violate the prohibition against the unauthorized practice of law (Bus. & Prof. Code, § 6125) by appearing on behalf of the trust in a lawsuit alleging tort claims because he or she is not acting in a representative capacity. (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519-1520.) Rather, the person properly exercises the right of self-representation because his or her interests and those of the trust are one and the same. (Id. at p. 1525.)
Consequently, because the trial court had precluded CAAJ from going forward with its conversion claim in the absence of a lawyer to represent it, we reversed the judgment as to CAAJ. But because Aulisio failed to designate or file an adequate record to review his claims, we upheld the jury's verdict that the defendants had not converted or interfered with the personal property inside the Jeep, including the laptop and software, that Aulisio claimed belonged to him.
Meanwhile, while the appeal was still pending, Bancroft and Patrol One filed this lawsuit against Aulisio and CAAJ alleging malicious prosecution. Because the underlying lawsuit was still on appeal, Aulisio moved to dismiss the suit for lack of a final termination in plaintiffs' favor, but our remittitur issued before the hearing on Aulisio's motion. Upon the remittitur, plaintiffs dismissed their malicious prosecution claim against CAAJ, and the matter proceeded to trial against Aulisio. After hearing evidence in a short trial of less than a day, the trial court entered judgment in favor of Bancroft and Patrol One, and Aulisio now appeals.
Meanwhile, the proceedings in CAAJ's new trial on its conversion claims against the original defendants were still ongoing. The matter eventually went to trial, and again resulted in a defense verdict. Following the trial, the defendants sought sanctions against Aulisio under Code of Civil Procedure section 128.7 for filing a frivolous lawsuit. The trial court, a different bench officer than in the malicious prosecution action, denied the motion. Aulisio requests that we take judicial notice of the transcript of the hearing on the sanctions motion in the CAAJ lawsuit and the court's minute order denying the motion. We deny the request because it does not appear this information was available to the trial court in the malicious prosecution action at the time it reached its decision, and we decline to inject new evidence into the record on appeal.
II
DISCUSSION
A. Governing Legal Principles
"'[D]ue to the principles that favor open access to the courts for the redress of grievances'" (Downey, supra, 66 Cal.App.4th at p. 493), the elements of malicious prosecution "have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim." (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 (Sheldon Appel).) Those elements are: favorable termination, probable cause, and malice. Specifically, the malicious prosecution plaintiff must establish that: (1) the defendant's earlier lawsuit reached a final conclusion, terminating in the plaintiff's favor; (2) the defendant pursued the lawsuit without probable cause; and (3) acted with malice in doing so. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1539 (Jay).) "Continuing an already filed lawsuit . . . may also be the basis for a malicious prosecution claim." (Ibid.) "The plaintiff in a malicious prosecution action must prove each of the necessary elements of the tort." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164.) B. Probable Cause
Aulisio contends the judgment must be reversed because probable cause supported his claims against Bancroft and Patrol One. He is correct as to Patrol One, but not Bancroft, as we explain.
"'"'[P]robable cause to bring an action does not depend on 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.'"'" (Jay, supra, 218 Cal.App.4th at p. 1540.) "'"[P]robable cause is lacking 'when a prospective plaintiff and counsel do not have evidence sufficient to uphold a favorable judgment or information affording an inference that such evidence can be obtained for trial.'"'" (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 222.) "Only those actions that '"any reasonable attorney would agree [are] totally and completely without merit"' may form the basis for a malicious prosecution suit." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.)
The test for probable cause is in an objective one. "The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors, and courts have recognized that there is a significant danger that jurors may not sufficiently appreciate the distinction between a merely unsuccessful and a legally untenable claim." (Sheldon Appel, supra, 47 Cal.3d at p. 875.) Where the pertinent facts are undisputed, as here, we review the issue of probable cause de novo. (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.)
Here, Aulisio's conversion claim against Patrol One rested on the fact that one of its overnight patrol agents cited the Jeep with a parking ticket in the early morning hours of June 12, 2009, and on the basis of that citation, called for a tow truck to remove and impound the Jeep and its contents. The gravamen of conversion is simply the wrongful exercise of dominion over the property of another. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)
Patrol One was hired to enforce the HOA's parking rules, and those rules required current vehicle registration. Consequently, Patrol One justified ticketing and towing the Jeep based on the expired registration tags affixed to its license plate. But the evidence also showed Aulisio had obtained and displayed visibly in the Jeep an authorized moving permit from the DMV, which furnished a tenable basis for a claim that Patrol One misapplied the HOA rules requiring current registration. A reasonable person could conclude the purpose of the rules was to ensure that vehicles parked in the community were lawfully operable and that, with the moving permit, the Jeep met that requirement on the date it was ticketed and towed. (Veh. Code, § 4002.) Although Aulisio did not prevail in the underlying lawsuit, a reasonable person could conclude his claim against Patrol One for wrongful towing was not devoid of probable cause, based on the evidence Aulisio secured a moving permit for the very day on which Patrol One had the Jeep towed.
The same is not true for his claim against Bancroft personally. Aulisio may have believed he could name or pursue anyone in a broad universe of potential defendants. But as a respected practice guide advises attorneys, "[D]on't press the 'universe of actors' theory to unrealistic limits: Clearly meritless party joinders may expose you and your client to monetary penalties (e.g., malicious prosecution liability or money sanctions)." (Flahavan et al., Cal. Practice Guide: Personal Injury (The Ruttter Group 2001) ¶ 1:45, p. 1-12, italics omitted.)
Aulisio suggested below that including Bancroft as a defendant was no different than suing both the delivery driver involved in an accident causing personal injury and also suing the driver's employer. (See Civ. Code, § 2343 [agent bears personal liability to third party when causing injury by wrongful act].) The analogy fails, however, because unlike a driver-defendant personally involved in an accident, there was no evidence Bancroft had any personal involvement in the loss of Aulisio's Jeep and its contents. He did not write the citation that resulted in the Jeep's seizure. Aulisio claimed at oral argument that Bancroft's name and phone number appeared on the citation with instructions to call him with questions about any tow. But we are unable to locate the citation in the record, as Aulisio provides no page references to it. In any event, it is undisputed Patrol One issued the ticket, and nothing about the mere appearance of Bancroft's name on the ticket, as Patrol One's president, suggests he acted in his personal capacity on tickets issued by Patrol One employees.
Nor was there any evidence to suggest Bancroft acted outside the scope of his responsibilities as Patrol One's president in a manner that would expose him to personal liability. Aulisio explained in the underlying trial that he contacted Bancroft not because his name was on the ticket, but because he (Aulisio) telephoned Kovach at the HOA management company to complain his vehicle had been towed, and she referred him to Bancroft, who then referred Aulisio to the tow truck company. Aulisio admitted the phone call was his only contact with Bancroft. He claimed he told Bancroft there was a "Moving Pass" on the Jeep's dashboard, the ticket and tow were therefore unjustified, and yet Bancroft nevertheless refused his request to return the vehicle. But even assuming that were true, nothing suggested Bancroft made that decision in his personal capacity. Notably, Aulisio did not allege alter ego or any other basis in the complaint to pierce Patrol One's corporate structure. Nor, as the trial court observed after Aulisio lost the first trial, was there any evidence that Bancroft, Kovach, and Vach engaged in a personal vendetta or conspiracy against him to deprive him of the Jeep and its contents. Consequently, there was no tenable basis for Aulisio to sue Bancroft personally.
Aulisio contends the fact that an attorney was involved in drafting and filing CAAJ's complaint, and that he filed his complaint concerning his personal property on the same basis as CAAJ, insulates him from the subsequent malicious prosecution lawsuit even if he lacked probable cause to sue Bancroft personally. In effect, Aulisio asserts he had a reasonable basis to bring his claims because he relied on the advice of counsel, albeit indirectly in the form of counsel's advice to CAAJ.
"'Reliance upon the advice of counsel, provided it is given in good faith and is based upon a full and fair statement of the facts by the client, may afford the latter [i.e., the client, but not the attorney] a complete defense to an action for malicious prosecution.'" (Albertson v. Raboff (1960) 185 Cal.App.2d 372, 386, italics added.) Aulisio cites no authority for his claim that a nonclient may rely on an attorney's filing decisions on behalf of a client. The claim has little appeal because if the attorney has no probable cause for filing the lawsuit, there seems little reason to exempt a nonclient from liability for similarly filing a lawsuit without probable cause. In any event, we need not resolve the issue for the simple reason that Aulisio continued to prosecute his claims without any tenable basis against Bancroft personally, even after the attorney ceased appearing for CAAJ before trial. Continuing to maintain an untenable lawsuit is properly the basis for a malicious prosecution claim (Jay, supra, 218 Cal.App.4th at p. 1539), and therefore Aulisio's attempt to take refuge in the advice of counsel fails. B. Malice
Because Aulisio had probable cause to sue Patrol One, thereby defeating Patrol One's malicious prosecution claim but not Bancroft's, we next consider whether Bancroft established the malice element. "'"The malice element of the malicious prosecution tort goes to the defendant's subjective intent." . . . A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence. [Citation.] Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.'" (Silas v. Arden (2012) 213 Cal.App.4th 75, 90 (Silas) see HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)
"'Merely because the prior action lacked legal tenability, as measured objectively, i.e., by the standard of whether any reasonable attorney would have thought the claim tenable [citation], without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor's subjective malicious state of mind. In other words, the presence of malice must be established by other, additional evidence. [¶] . . . [T]hat evidence must include proof of either actual hostility or ill will on the part of the defendant or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant.'" (Silas, supra, 213 Cal.App.4th at pp. 90-91, original italics.)
In closing argument, Bancroft asserted "[t]he biggest proof of malice, Your Honor, [is that] Mr. Aulisio stated it would have cost him, I believe, $400 to get his car out, and it cost him $600 to file the complaint. I can't think of a better piece of evidence that this lawsuit was more important than getting his car back. That's malice. That's wanting to sue for the sake of suing. That's wanting to hurt. He could have got his car back, his computer, his [asserted consequential damages loss in income of] $60,000 [based on the] Golden computer program for $400."
This argument pertains to damages, not malice. The principle animating Bancroft's argument is simply that, as explained in the Restatement of Torts, "a person injured by the tort of another is not entitled to recover damages for such harm as he could have avoided by the use of due care after the commission of the tort." (Rest.1st Torts, Avoidable Consequences, § 918.) The Restatement illustrates this principle as follows: "A destroys a fence on B's land, intending that B's cattle shall escape. B sees what is happening but in the belief that A would be responsible for all harm caused by the destruction of the fence, intentionally fails to prevent his cattle from escaping as he easily could do. B is not entitled to recover damages for harm caused to his cattle by their escape." (Ibid., illustration 5.) As the Restatement explains, "If harm results because of [B's] careless failure to make substantial efforts or incur expense, the damages for the harm suffered are reduced to the value of the efforts he should have made or the amount of the expense he should have incurred, in addition to the harm previously caused." (Ibid.)
But a clarifying illustration shows the fallacy of Bancroft's claim the victim must incur expenses in mitigation on behalf of the tortfeasor. "A tortiously destroys B's fence. Although B knows the facts and is able to build a temporary barrier at an expense of $20, he fails to do so and his cattle worth $500 stray from the field and are lost. B is entitled to recover $20 in addition to the value of the destroyed fence." (Rest.2d, supra, § 918, illustration 8], italics added.)
Applying the illustration here, if Patrol One caused the Jeep to be wrongfully towed, and Aulisio could have avoided ensuing harm to his income from the loss of the laptop and software by paying $400 to retrieve the vehicle but did not do so, his damages would include the $400, just like the $20 for a temporary barrier to forestall further loss that the Restatement victim declined to pay.
True, the victim who does not pay out such an expense may or may not be denied further consequential damage such as the loss of cattle in the illustration, or here Aulisio's asserted loss of $60,000 in income from the lost laptop and software inside the Jeep. But that is a fact-intensive damages inquiry for the jury if the it determines the defendant has committed a tort. (See Rest.2d, supra, § 918, comment e [factors concerning the reasonableness of the victim's actions include "the amount of harm that may result . . . , the chance that the harm will result if nothing is done, the amount of money or effort required as a preventive, his ability to provide it and the likelihood that the measures will be successful"].)
These factors affecting the victim's measure of damages were embraced in the trial court's general reasonableness instruction concerning victim mitigation in the underlying lawsuit. (CACI No. 3930.) If either of the parties desired a more detailed pinpoint instruction, it was their duty to request it.
More to the point here, the fact that Aulisio did not pay the $400 cannot be evidence of malice when he had no legal obligation to do so because it was a measure of his damages. As the Restatement explains contrary to Bancroft's claim below, the victim is not required to pay the $400 (or $20 in the illustration); instead, even if left unpaid, it is a measure of damages the victim should not have been faced with at the risk of further harm. (Rest.2d, supra, § 918, comment b.) As the Restatement summarizes, the mitigation "rule stated in this Section applies only to the diminution of damages and not to the existence of a cause of action." (Ibid.) Consequently, Aulisio's decision to pursue the matter in court rather than pay $400 may have been financially foolish, but provides no basis for concluding he acted maliciously in seeking to redress a perceived wrong.
Additionally, the record discloses the trial court was misled by Bancroft's suggested basis for finding malice. The court premised its malice finding on its belief that "Mr. Aulisio took no steps to retrieve the computer that was the sum and substance of his personal claim against the plaintiffs." This assessment misses the mark for two reasons.
First, as discussed, malice cannot be based on Aulisio's failure to pay a sum he reasonably believed he had no legal obligation to pay. Second, it appears the court relied on Bancroft's additional argument that Aulisio could have obtained his personal property from the Jeep for free simply by asking, and therefore his failure to do so demonstrated ill will and a malicious intent in suing. In making this claim, Bancroft apparently relied on testimony in the underlying trial indicating there was a sign posted at the tow yard stating that individuals were entitled to obtain personal property from their towed vehicles without paying the impound fee. But Aulisio contacted the towing company by telephone and there is no evidence this policy was communicated to him. He spoke on the phone to representatives of the tow yard twice, with neither mentioning the policy.
In any event, the record does not support the trial court's belief that Aulisio did nothing to attempt to obtain his computer and the tax software on it. The court asked Bancroft and Patrol One to provide a summary of the evidence in the underlying trial, and they did so in exhibit 9, which they entitled, "Synopsis of Aulisio Direct Examination Per Court Order." The synopsis quotes Aulisio's statement to the jury in the underlying trial as follows: "Later I called Southside Towing and asked to talk to John Vach [the owner]. A person came to the phone and identified himself as John Vach. I told him my Jeep had been wrongfully towed and I wanted it back. He said that the only way he would return the Jeep and its contents would be if I paid the tow charges and storage fees. He said he did not care that the car was registered." (Italics added.) Consequently, the court's inference of malice based on its belief Aulisio made no attempt to obtain his assertedly valuable property is unsupported by the record.
Finally, Bancroft also argued Aulisio acted maliciously in naming him personally as a defendant in the lawsuit because he (Aulisio) had been warned in correspondence not to do so. The evidence Bancroft submitted does not support this claim. He included in his trial exhibits only Aulisio's response to the alleged warning, and not the correspondence itself, which neither Bancroft nor his attorney authored. Instead, from Aulisio's response, it appears Vach's attorney sent Aulisio a letter stating vaguely that "'suing someone is not a risk free endeavor.'"
Aulisio answered, "By the same token, stealing another person's vehicle and possessions is also not a risk free endeavor." Aulisio continued in his response: "Before you file a demurrer on behalf of Mr. Vach, keep in mind the following: After the vehicle was taken, I called and informed the person answering the phone that the vehicle had been wrongfully taken, and I wanted it returned. I was told that only the owner could make that decision. He put the owner, who I understand is Mr. Vach, on the phone. Mr. Vach informed me that I could not have the car unless I paid the [fees]. Again, if Mr. Vach is found liable for intentional conversion, he cannot hide behind the corporate shell. He will be personally liable."
This correspondence does not reflect a clear warning that demonstrates malice, but instead only that Aulisio was a true believer in the merits of his suit, even if he erred in adding in their individual capacity individuals he spoke to on the phone. Suits with the hallmark of an improper purpose are those in which: "'(1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.'" (Albertson v. Raboff (1956) 46 Cal.2d 375, 383.) Nothing in the record suggests Aulisio sought to force a settlement or that he was anything but convinced in the righteousness of his cause, even if he cast his net too wide in alleging personal liability. The essential element of malice requires "bad faith, or the absence of an honest and sincere belief that the prosecution was justified by the existent facts and circumstances." (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 696; see, e.g., Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 296 [defendant "physically threatened" the plaintiff, told the plaintiff he had sued her "to prevent her from making trouble for him in the future," and admitted in his deposition he had no witnesses to support his claims against her]; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 54 [attorney admitted arguing a weak point in his appellate brief "'not because of any high hopes of [winning], but because I wanted to show the Appellate Court what a bastard Bertero was'"].) The record does not disclose the requisite bad faith, and we therefore reverse the judgment.
III
DISPOSITION
The judgment is reversed. Respondents' motion for sanctions for a frivolous appeal is denied. The parties shall bear their own costs on appeal.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.