Opinion
B296231
02-25-2020
CYRUS CHADY, Plaintiff and Appellant, v. THOMAS J. WEISS et al., Defendants and Respondents.
Law Offices of James S. Uyeda and James S. Uyeda for Plaintiff and Appellant. Lyle R. Mink for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC714462) APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge. Reversed and remanded. Law Offices of James S. Uyeda and James S. Uyeda for Plaintiff and Appellant. Lyle R. Mink for Defendants and Respondents.
INTRODUCTION
Respondents, attorneys Thomas J. Weiss and Shawn Zaman, represented a plaintiff in a suit against appellant Cyrus Chady. The suit alleged appellant had given the plaintiff three bad checks. In his defense, appellant claimed he did not even know the plaintiff, the checks were forged, and he was confined to a psychiatric hospital when he was alleged to have tendered the third check. Respondents maintained the suit for several more months but substituted out before trial. At trial, the plaintiff abandoned the claim relating to the third check, and a jury later returned a verdict for appellant.
Appellant then sued respondents and others for malicious prosecution, arguing, inter alia, that respondents maintained the claim based on the third check, despite knowing it was false. The trial court granted respondents' special motion to strike the complaint under Code of Civil Procedure section 425.16 (anti-SLAPP motion), concluding that the underlying suit was protected activity and that appellant had shown no probability of success as to the elements of lack of probable cause and malice. Challenging this conclusion, appellant asserts he has made a prima facie showing as to these elements of his malicious prosecution claim. As explained below, we agree the trial court erred in granting respondents' anti-SLAPP motion and therefore reverse.
Undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
A. The Underlying Lawsuit
1. P & P's complaint
In late March 2016, respondents filed a lawsuit against appellant on behalf of their client, P & P Precious Metals Inc. (P & P). The complaint asserted several causes of action, all based on allegations that earlier that month, appellant had purchased gold from the company using three bad checks. According to the company and its president, Pedram Shamekh, on March 7, 2016, appellant gave Shamekh two checks totaling about $285,000, in return for seven kilograms of gold (March 7 claim).
The complaint originally alleged appellant had given Shamekh one of the two checks on March 8, but Shamekh later claimed appellant had provided both checks on March 7, but post-dated one of them March 8.
Three days later, on March 10, the two checks were returned unpaid, with a notation that the account on which they were written was closed. Shamekh allegedly immediately contacted appellant and demanded payment. According to Shamekh, that same day, appellant came to Shamekh's office and provided a new check for over $570,000, intended both to cover for the returned March 7 checks, and to purchase additional gold (March 10 claim). On March 14, that check too was returned unpaid, having been written on the same closed account
Attached to the complaint were several exhibits, including: a March 10 letter from P & P's bank regarding the March 7 checks; copies of the three bad checks; and a copy of appellant's driver's license. The March 10 letter from the company's bank informed the company the March 7 checks were returned unpaid, and indicated they were drawn on a closed account. The copies of the checks showed that all three were temporary checks, and all had the same account number written in. Each check bore appellant's purported signature, but each signature was substantially different from the others, and the signature on the March 10 check, in particular, bore little resemblance to either of the others.
2. The Property Attachment and Appellant's Motion to Set It Aside
Shortly after filing the suit, respondents obtained an ex parte attachment on appellant's property. In May 2016, appellant filed an ex parte application to set aside the attachment, denying the alleged transactions and specifically claiming he was confined to a psychiatric hospital on March 10, 2016. The court denied this ex parte application without prejudice to its renewal in a properly noticed motion.
In July 2016, appellant filed a noticed motion to set aside the property attachment, again denying the alleged transactions and asserting he was involuntarily held at a psychiatric hospital from March 9 to March 14. Appellant contended Shamekh had likely obtained his driver's license and personal information through Shamekh's business associate, Bahram Zendedel. In a declaration in support of his motion, appellant stated he did not know Shamekh and had never met him or purchased gold from him. Appellant explained the temporary checks were drawn on an account he had closed in 2015, and he claimed Zendedel, whom he did know, had stolen his driver's license and bank account information. Appellant also attached the July 9, 2016 declaration of Dr. Craig Wronski. Dr. Wronski stated he was appellant's admitting and attending physician at the psychiatric hospital from March 9 to March 14, 2016. He testified appellant "was confined at [the hospital] during that entire time period and could not have left, and did not leave, the hospital during that hold." Dr. Wronski explained he had "personal knowledge of [these] facts" and stated he would competently testify to them at trial if called as a witness. Finally, appellant attached a psychiatric discharge summary, signed by Dr. Wronski, confirming the dates of appellant's admission and discharge and noting that he was subject to suicide and assault precautions while at the hospital.
Appellant had separately sued Zendedel in connection with these allegations, and that proceeding was still pending at the time of the hearing on respondents' anti-SLAPP motion below.
P & P opposed appellant's motion and enclosed a July 2016 declaration by Shamekh and a June 2016 declaration by Dr. Bernadette Grosjean, a psychiatrist. In his declaration, Shamekh stated he remembered March 10 "clearly" because that was when he received notice the March 7 checks had been returned unpaid, and he claimed that appellant came to his office to provide a substitute check that same day. Dr. Grosjean indicated in her declaration that she had reviewed a letter from the psychiatric hospital regarding appellant's stay as well as records from the emergency room from which he was taken to the psychiatric hospital. She opined these records were incomplete and insufficient to show appellant was "continuously held for the period of time he is claiming." Dr. Grosjean had not reviewed Dr. Wronski's declaration or appellant's discharge summary. The court subsequently granted appellant's motion and set aside the property attachment.
3. Discovery
The parties proceeded to conduct mutual discovery. In a July 2016 response to a request for admissions, P & P admitted Shamekh first discovered the March 7 checks had been returned unpaid on March 10.
In January 2017, respondents deposed appellant. As reflected in the deposition transcript, during the deposition, appellant's counsel provided respondents additional records relating to appellant's hospitalization. These records included: (1) 24-hour observation records, showing appellant's location and activity at the hospital every 15 minutes throughout his stay, beginning on March 9, 2016, at 11:35 p.m. and ending on March 14 at 11:35 a.m.; (2) daily suicide risk reassessment forms; and (3) "daily nursing flow sheet[s]." These records all confirmed appellant was at the hospital on March 10 and beyond and was subject to suicide and assault precautions during his entire stay at the hospital.
4. Respondents' Substitution and the Trial
Three months later, in late April 2017, on the day trial was to begin, respondents substituted out of the case, and the trial was continued to July. At trial, P & P's new counsel, Jerry Kaplan, abandoned the March 10 claim and proceeded to prosecute the March 7 claim alone. Following trial, the jury returned a verdict for appellant, specifically finding appellant entered no transaction with P & P on March 7, 2016.
B. Appellant's Malicious Prosecution Action and Respondents' Anti-SLAPP Motion
In 2018, appellant brought this action, asserting a single cause of action for malicious prosecution against respondents, Shamekh, and Zendedel. He alleged these defendants initiated and maintained the underlying action against him maliciously and without probable cause, knowing the claims to be false.
Respondents filed an anti-SLAPP motion shortly thereafter, seeking to strike appellant's complaint. They contended appellant's action was based on protected activity under section 425.16 and had no probability of success on the merits. In support of their motion, respondents provided declarations by Kaplan and Zaman. As relevant here, Kaplan claimed P & P "had certain recordings of [appellant] in which he admitted the transactions, but they were not allowed as evidence at trial . . . ." Zaman claimed in his declaration that respondents had not received appellant's additional hospital records (the 24-hour observation records, the daily nursing flow sheets, and the suicide risk reassessment forms) until March 2017. Zaman further asserted he spoke with Dr. Grosjean and another psychiatric expert in March 2017, and that after reviewing all the records appellant provided, they opined "it was possible [appellant] was not continuously confined on the dates he contended he was confined." Finally, Zaman claimed Shamekh had shown him video recordings of meetings between Shamekh and appellant, at which appellant admitted to certain transactions with Shamekh.
Zendedel filed a separate anti-SLAPP motion. That matter remained pending before the trial court at the time of the hearing on respondents' motion.
Appellant opposed the anti-SLAPP motion, focusing his arguments on the March 10 claim. He did not contest that bringing and maintaining the underlying suit was protected activity, but argued he had shown a probability of prevailing on the merits. He contended that the evidence he provided respondents in July 2016 and January 2017 placed them on notice that their client's information was false. Appellant enclosed the declaration of his counsel, who testified he gave Zaman appellant's additional hospital records during appellant's January 2017 deposition. Counsel described obtaining those documents from the hospital's risk management department after Dr. Wronski suggested that he speak to that department's supervisor "to determine the exact procedures in place" for patients on involuntary holds.
C. The Hearing and the Trial Court's Ruling
At the hearing on respondents' anti-SLAPP motion, appellant's counsel argued respondents knew the March 10 claim was false but nevertheless maintained it until they left the case in April 2017. Counsel conceded respondents had probable cause to initiate the suit based on the information they had received from their client, but claimed they had no probable cause to continue to prosecute it once they learned the information was false. When the trial court asked counsel when respondents were first put on notice that the claim was false, counsel replied, "[T]he first go around was in May of 2017 [sic], and then the main motion that we made to set aside was in July of 2017 [sic]." The transcript does not indicate that counsel's erroneous response, stating "2017" instead of "2016," misled the trial court, and the ensuing colloquy between counsel and the court centered on whether appellant had been held in "a lockdown hospital" and whether there was independent evidence of respondents' malice, beyond their alleged knowledge that the claim was false.
Following the hearing, the trial court granted respondents' anti-SLAPP motion, finding "[no] lack of probable cause" and "no independent evidence of malice." Although neither party raised the issue, the court also concluded appellant was "in pari delicto, in setting up the issues," apparently referring to appellant's failure to prevent Zendedel's theft of his personal information. (Italics added.) This appeal followed.
"'The doctrine of in pari delicto dictates that when a participant in illegal, fraudulent, or inequitable conduct seeks to recover from another participant in that conduct, the parties are deemed in pari delicto, and the law will aid neither, but rather, will leave them where it finds them.'" (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1143, fn. 1 (Casey).)
DISCUSSION
A. Anti-SLAPP Proceedings
"A SLAPP suit -- a strategic lawsuit against public participation -- 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.] The Legislature enacted . . . section 425.16 -- known as the anti-SLAPP statute -- to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) "Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
Our Supreme Court has described this second step as "a 'summary-judgment-like procedure.'" (Baral, supra, 1 Cal.5th at 384.) "The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Id. at 384-385.)
"For anti-SLAPP purposes, a plaintiff who '"can show a probability of prevailing on any part of its claim"' does not have a meritless claim and a motion to strike is not proper -- '"the entire cause of action stands.'" [Citation.] So, if a single cause of action arising entirely from protected activity asserts 'a number of acts of alleged misconduct and theories of recovery, . . . for purposes of reviewing the ruling on an anti-SLAPP motion, it is sufficient to focus on just one,' if that one has the requisite merit." (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1119 (Cuevas-Martinez), italics omitted, quoting Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820, 821.) "We review a trial court's decision on a special motion to strike de novo." (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 129.)
Appellant does not dispute that his malicious prosecution claim against respondents arose from protected activity -- respondents' representation of P & P in a suit against appellant. (See § 425.16, subd. (e)(1) [protected activity includes "any written or oral statement or writing made before a . . . judicial proceeding"]; see also Daniels v. Robbins (2010) 182 Cal.App.4th 204, 214-215 (Daniels) [malicious prosecution claims always arise from protected activity].) We therefore consider only whether appellant has established a probability of success on the merits of his claim.
B. Appellant Has Shown a Probability of Success on His Malicious Prosecution Action Based on the March 10 Claim
To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must show that the prior action had been: "(i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.) Although appellant's action encompasses both the March 7 claim and the March 10 claim, he rests his arguments only on the latter for purposes of defeating respondents' anti-SLAPP motion. It is undisputed that respondents initiated and maintained P & P's March 10 claim and that it was terminated in appellant's favor. But the parties disagree on whether appellant has made a prima facie showing that respondents maintained the March 10 claim without probable cause and with malice. We discuss these elements in turn.
Respondents contend that appellant's exclusive focus on the March 10 claim constitutes an unauthorized attempt to amend his complaint. They are mistaken. As noted, appellant may overcome respondents' anti-SLAPP motion by demonstrating that one part of his malicious prosecution cause of action -- here, the portion pertaining to P & P's March 10 claim -- has sufficient merit. (See Cuevas-Martinez, supra, 35 Cal.App.5th at 1119.) And even a single baseless claim in a larger lawsuit may support a malicious prosecution cause of action. (See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57 ["We see no reason for permitting plaintiffs . . . to pursue shotgun tactics by proceeding on counts and theories which they know or should know to be groundless"]; Crowley v. Katleman (1994) 8 Cal.4th 666, 671 [reaffirming Bertero v. National General Corp.].)
Respondents make no attempt to defend the trial court's application of the in pari delicto doctrine. As noted, this doctrine concerns a party to illegal, fraudulent, or inequitable conduct who seeks to recover from another participant in that conduct. (Casey, supra, 127 Cal.App.4th at 1143.) There is no basis for the application of this doctrine to appellant.
i. Based on the Anti-SLAPP Evidence , Respondents Lacked Probable Cause to Maintain the March 10 claim
a. Applicable Law
The determination of probable cause requires an objective assessment of "the reasonableness of the underlying lawsuit based on the facts known to the party bringing the suit." (Lee v. Kim (2019) 41 Cal.App.5th 705, 724 (Lee), citing Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 (Sheldon Appel).) The relevant inquiry is "whether any reasonable attorney would have thought the [underlying] claim tenable . . . ." (Sheldon Appel, at 886; accord, Zamos v. Stroud (2004) 32 Cal.4th 958, 970 (Zamos) ["Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit"].)
"'In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup); accord, ibid. [no probable cause if party "'relies upon facts which he has no reasonable cause to believe to be true'"].) In assessing the factual tenability of a client's claim, an attorney is generally entitled to rely on information provided by the client. (Daniels, supra, 182 Cal.App.4th at 223.) However, the attorney may not continue to do so if he or she "is on notice of specific factual errors in the client's version of events that render the claim untenable." (Lee, supra, 41 Cal.App.5th at 725; accord, e.g., Cuevas-Martinez, supra, 35 Cal.App.5th at 1121 [attorney may not rely on client's information "if the evidence developed through discovery indicates the allegations are unfounded or unreliable"].)
In Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 985 (Litinsky), the court held that an attorney may rely on information supporting a client's claim unless that information is "indisputably false." While we are unaware of any other case using this language, as our discussion below shows, given appellant's evidence, respondents could not rely on P & P's information even under this standard.
Absent a factual dispute, the assessment of probable cause presents a legal question for the court. (Sheldon Appel, supra, 47 Cal.3d at 868.) "When there is a dispute as to the state of the defendant's knowledge and the existence of probable cause turns on resolution of that dispute . . . the jury must resolve the threshold question of the defendant's factual knowledge or belief." (Id. at 881.)
b. Analysis
Appellant contends that as early as July 2016 and no later than January 2017, respondents lacked probable cause to maintain the March 10 claim against him. We agree.
Initially, we note that Shamekh's version and the evidence P & P provided respondents were inherently questionable. Appellant's purported signature on the March 10 check bore little resemblance to those on the March 7 checks (themselves dissimilar). And the March 10 check bore the same account number as the March 7 checks, meaning that according to Shamekh, after the bank notified him that the March 7 checks were returned unpaid because they were drawn on a closed account, he accepted another check drawn on the same closed account as a substitute. For a reasonable attorney, these facts would set off alarm bells. (Cf. Daniels, supra, 182 Cal.App.4th at 224 [client's "persistent refusal to supply the names of alleged witnesses [to defamatory statements against him] arguably put [his attorneys] on constructive notice at some point after filing the lawsuit that there was no probable cause for the claims"].)
Regardless, in July 2016, appellant filed his motion to set aside respondents' ex parte property attachment. Attached to this motion were appellant's declaration, the declaration of Dr. Wronski, and appellant's discharge summary. In his declaration, appellant testified that he did not know Shamekh, that he had never met him or purchased gold from him, and that Zendedel, Shamekh's business associate, had stolen appellant's driver's license and bank account information. While respondents were not required to credit appellant's assertions (see Litinsky, supra, 40 Cal.App.5th at 986 [attorney was not obligated to drop client's claim simply because litigation opponent claimed client was lying]), this testimony provided a plausible explanation of how Shamekh had come to obtain appellant's information if Shamekh was lying about the transactions. Appellant's contentions therefore placed respondents on notice that they would have to prove the March 10 transaction to prevail at trial. (Cf. Arcaro v. Silva & Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 157 (Arcaro) [where opposing party denied his signature's authenticity and provided reasonable explanation how forgery suspect could have acquired his information, plaintiff in underlying litigation was on notice it would have to authenticate signature at trial].)
The additional evidence appellant provided respondents at that time rendered that task impossible based on the state of the evidence. Dr. Wronski stated in his declaration that he was appellant's admitting and attending physician at the psychiatric hospital from March 9 to March 14, 2016. Based on his "personal knowledge," Dr. Wronski unequivocally testified that appellant was "confined" to the hospital during that entire period, "could not have left" the hospital during that time, "and did not leave." Appellant's discharge summary, signed by Dr. Wronski, confirmed the dates of appellant's admission and discharge and added that he was subject to suicide and assault precautions during his stay.
Obviously, appellant's confinement to a psychiatric hospital during that period would have prevented him from appearing at Shamekh's office and tendering a check for more than $570,000 on March 10. Absent any reasonable basis to doubt Dr. Wronski's declaration and the discharge summary, this information would have been sufficient to preclude a reasonable attorney from relying on P & P's information and to render the March 10 claim objectively untenable. (See Cuevas-Martinez, supra, 35 Cal.App.5th at 1121; Lee, supra, 41 Cal.App.5th at 725; cf. Zamos, supra, 32 Cal.4th 958, 970-973 [sufficient showing of probable cause where court transcripts refuted client's version]; Arcaro, supra, 77 Cal.App.4th at 158 [no probable cause to sue based on credit application where opposing party provided signature exemplar tending to show his signature on credit application was forged, and there was no information warranting inference that exemplar signatures were fake].)
Yet respondents had even more information supporting appellant's defense. In January 2017, respondents received additional hospital records. These included 24-hour observation records, showing appellant's location and activity at the hospital every 15 minutes throughout his stay (from March 9 to March 14, 2016), as well as suicide risk reassessment forms and daily nursing flow sheets, confirming appellant was at the hospital on March 10 and beyond. All these records also indicated appellant was subject to suicide and assault precautions during his entire stay at the hospital.
Thus, appellant provided respondents essentially unassailable evidence that he could not have given Shamekh the March 10 check as alleged, and that the March 10 claim was untenable. We do not suggest that an attorney may not seek to explain or discredit such evidence. But absent a sensible explanation or meaningful evidence to the contrary, respondents had no reasonable basis to maintain the March 10 claim and could not simply rely on their client's version. (See Soukup, supra, 39 Cal.4th at 292; Daniels, supra, 182 Cal.App.4th at 223; Lee, supra, 41 Cal.App.5th at 725; Arcaro, supra, 77 Cal.App.4th at 158.)
In an effort to avoid this conclusion, respondents raise several contentions. None has merit. First, they attempt to challenge the credibility of Dr. Wronski's declaration. They assert Dr. Wronski had no personal knowledge of appellant's whereabouts, that he simply could have been wrong, and that he did not even know the hospital's procedures for confining patients on involuntary holds, given that he told appellant's counsel to get that information from the hospital's risk management department. But Dr. Wronski, appellant's admitting and attending physician during his hospitalization, stated that he had "personal knowledge" of the facts in the declaration. That he told appellant's counsel to speak to the risk management department about "the exact procedures" for confining patients on involuntary holds does not establish he was unfamiliar with them. And respondents' suggestion that Dr. Wronski could have been wrong is sheer speculation, unwarranted by any evidence and rebutted by hospital records that confirmed his account. (See Arcaro, supra, 77 Cal.App.4th at 158 [speculation by plaintiff in underlying litigation that opposing party's signature exemplar could be false was insufficient: "Its hope for a Perry Mason-style denouement at trial was pure fantasy"].)
Second, turning to appellant's hospital records, respondents assert that appellant made no attempt to qualify them as business records, as would be necessary for their admission at trial. They also argue that these records, too, could simply have been inaccurate. However, appellant was not required to qualify his hospital records as business records in the course of discovery, and respondents had no reasonable basis to believe that appellant would not be able to qualify them as such at trial. As to the records' accuracy, respondents did not -- and do not -- identify any potential inaccuracy in the records; given Dr. Wronski's declaration and the multiple documents corroborating appellant's status at the hospital on March 10, a reasonable attorney would not assume they were inaccurate. (See Soukup, supra, 39 Cal.4th at 292; Arcaro, supra, 77 Cal.App.4th at 158.)
Third, pointing to Zaman's declaration in support of their anti-SLAPP motion, respondents assert they did not receive the additional hospital records (the 24-hour observation records, the daily nursing flow sheets, and the suicide risk reassessment forms) until March 2017. But appellant disputes this contention: in his declaration below, appellant's counsel testified he gave Zaman these records during appellant's January 2017 deposition. The deposition transcript confirms this testimony. We accept appellant's evidence as true for purposes of this anti-SLAPP proceeding. (See Baral, supra, 1 Cal.5th at 384.)
Fourth, respondents claim they reasonably relied on Dr. Grosjean's June 2016 declaration, in which she testified that a letter from the psychiatric hospital and records from the emergency room were insufficient to show appellant was "continuously held for the period of time he is claiming." Yet Dr. Grosjean had not reviewed Dr. Wronski's July 2016 declaration when she prepared her June 2016 declaration. Upon receipt of Dr. Wronski's declaration attesting to his personal knowledge that appellant "was confined at [the hospital] during that entire time period [March 9 - 14, 2016] and could not have left, and did not leave, the hospital during that hold," as well as the discharge summary confirming Dr. Wronski's representations, respondents had no basis to question appellant's confinement as of March 10. Though none was needed, respondents received further confirmation of appellant's continuous confinement in January 2017, when appellant's counsel produced the 24-hour observation records, the daily nursing flow sheets, and the suicide risk reassessment forms. In short, after July 2016, respondents could not reasonably have relied on Dr. Grosjean's declaration.
On appeal, respondents do not reference Zaman's declaration testimony that in March 2017, Dr. Grosjean and another psychiatric expert reviewed the July 2016 and January 2017 documents and opined that "it was possible [appellant] was not continuously confined on the dates he contended he was confined." We observe that, even if credited, Zaman's testimony would not entitle respondents to anti-SLAPP relief. Initially, the experts' alleged opinion that appellant may not have been continuously "confined" from March 9 to March 14, 2016, does not address the relevant question: whether appellant was continuously at the psychiatric hospital on March 10 (his first day there, as he was admitted at 11:35 p.m. on March 9). Moreover, Zaman's declaration discloses no explanation by the experts how appellant could have been out of the hospital despite contrary testimony from his attending physician and documentary evidence accounting for his status and whereabouts throughout his stay. Given this evidence, the experts' conclusory statement that "it was possible" appellant was not continuously confined could not have provided a reasonable basis to maintain the March 10 claim. (Cf. Hanson v. Grode (1999) 76 Cal.App.4th 601, 607 ["'[E]xpert opinions . . . are worth no more than the reasons and factual data upon which they are based'"].) Finally, respondents could not have relied on these March 2017 expert opinions to justify their prosecution of the March 10 claim between July 2016 and March 2017. (See Soukup, supra, 39 Cal.4th at 295 ["defendants did not obtain [certain evidence] until after they had filed the underlying action and, therefore, [that evidence] could not have provided them with probable cause for filing the action"].)
Fifth, respondents suggest appellant could have given Shamekh the third check on March 9 rather than on March 10. Not so. According to Shamekh's declaration and P & P's bank records, only on March 10 was Shamekh informed that the March 7 checks had been returned unpaid. In his July 2016 declaration, Shamekh stated he remembered March 10 "clearly" because that was when he received notice of the unpaid checks, and claimed that appellant came to his office to provide a substitute check that same day. Indeed, in response to a request for admissions, also signed that month, P & P admitted that Shamekh first discovered the March 7 checks had been returned unpaid on March 10. (See § 2033.410, subd. (a) ["Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300"].)
Sixth, pointing to declarations by Zaman and Kaplan, the attorney who represented P & P at trial, respondents claim they had seen video recordings of meetings between Shamekh and appellant, at which appellant admitted having done business with Shamekh, contrary to appellant's assertions in the underlying litigation. Here, too, respondents attempt to rely on disputed evidence. No such video appears in the record, and appellant asserted in his declaration he did not know Shamekh and had never met him. Testimony about the alleged videos therefore cannot defeat appellant's claim as a matter of law. (See Baral, supra, 1 Cal.5th at 384.) Nor would impeaching appellant's testimony on whether he knew Shamekh or had ever done business with him tend to rebut his solid objective evidence that he could not have given Shamekh the March 10 check. (Cf. People v. Farley (2009) 46 Cal.4th 1053, 1105 (Farley) [precluding impeachment of witness was harmless, even if erroneous, given other overwhelming evidence of defendant's guilt].)
Seventh, along similar lines, respondents contend that appellant and his counsel were uncooperative in the underlying litigation, and that appellant therefore cannot complain that respondents disbelieved him. This contention is beside the point. Appellant tendered Dr. Wronski's declaration and the hospital records several months before respondents withdrew from the case, and his defense rested on that objective evidence rather than the strength of his word. (Cf. Farley, supra, 46 Cal.4th at 1105.)
Finally, respondents observe that at the hearing on their anti-SLAPP motion, appellant's counsel told the trial court that respondents first learned about the problems with P & P's case in "May of 2017" and when appellant filed his motion to set aside the property attachment in "July of 2017," whereas they had withdrawn from representation in April 2017. Even a cursory review of the record confirms that counsel simply misspoke, saying "2017" instead of "2016." Appellant filed his ex parte application to set aside the attachment in May 2016 and his noticed motion, with Dr. Wronski's declaration and the discharge summary, in July 2016. His pleadings before the trial court correctly identified those dates. There is no indication the trial court relied on counsel's mistake at the hearing. Accordingly, based on the state of the evidence in this anti-SLAPP proceeding, we conclude respondents lacked probable cause to maintain the March 10 claim after July 2016.
ii. Appellant Has Made a Sufficient Showing of Malice
The element of malice "goes to the defendant's subjective intent in initiating the prior action." (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1156.) "It is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose." (Id. at 1157.) "'Suits with the hallmark of an improper purpose are those in which . . . "'the person initiating them does not believe that his claim may be held valid [or] the proceedings are begun primarily because of hostility or ill will.'"'" (Cuevas-Martinez, supra, 35 Cal.App.5th at 1122.)
"'Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.'" (Cuevas-Martinez, supra, 35 Cal.App.5th at 1122.) An attorney's continued prosecution of an action after becoming aware that it lacks probable cause permits an inference of malice. (See Zamos, supra, 32 Cal.4th at 970-973 [sufficient evidence to support malicious prosecution claim where defendant attorneys maintained prior fraud claim even after receiving evidence conclusively establishing it was meritless]; Cuevas-Martinez, at 1122 [inferring malice where defendant attorney maintained claim, "despite knowing the claim was baseless"]; Daniels, supra, 182 Cal.App.4th at 226 ["malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause"].) An attorney's failure to properly investigate the facts or research the applicable law may also suggest malice. (See Sheldon Appel, supra, 47 Cal.3d at 883 [extent of defendant attorney's investigation and research may be relevant to question of malice]; Medley Capital Corp. v. Security National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 49 [lack of evidence defendant attorney did anything to research applicable facts or law before filing cross-complaint "indicate[d] a degree of indifference from which one could infer malice"].) Because malice involves the defendant's mental state, it necessarily presents a question of fact. (Medley Capital, at 49.)
The evidence is sufficient to allow a jury to find that respondents acted with malice in maintaining the March 10 claim. As discussed, by July 2016, respondents were aware of uncontradicted evidence that the March 10 claim could not be valid, and had no basis to believe that evidence could be rebutted. They nevertheless maintained the claim until they withdrew from the case in April 2017. That alone permits an inference of malice. (See Zamos, supra, 32 Cal.4th at 970-973; Cuevas-Martinez, supra, 35 Cal.App.5th at 1122.)
Respondents' lack of meaningful response to appellant's July 2016 and January 2017 evidence is further suggestive of malice. The record shows no effort on their part to depose Dr. Wronski, to seek to prove that the signature on the March 10 check belonged to appellant, or to obtain a new declaration from Dr. Grosjean responsive to the new evidence.
The fact that, according to Zaman, respondents obtained additional opinions from Dr. Grosjean and another psychiatric expert in March 2017 does not disprove their malice, given the timing of this alleged effort, one month before trial was to begin, and the conclusory nature of the experts' opinion. (See ante, fn. 9.)
In attempting to defend the trial court's conclusion that appellant presented no evidence of malice, respondents do not meaningfully engage with this evidence. Instead, their principal argument is that malice requires evidence of ill will or improper purpose independent of evidence of the defendant's knowledge of the lack of probable cause. That is not the law in this state. As discussed, a person who brings a claim that he does not believe may be held valid acts with an improper purpose. (Cuevas-Martinez, supra, 35 Cal.App.5th at 1122.) And evidence of such an improper purpose can be inferred from the person's continued prosecution of the claim after learning that it lacks probable cause. (See Zamos, supra, 32 Cal.4th at 970-973; Cuevas-Martinez, at 1122; Daniels, supra, 182 Cal.App.4th at 226.) Here, respondents' failure to investigate appellant's evidence constitutes additional, independent evidence of malice. Accordingly, appellant has made a sufficient showing of respondents' malice to defeat their anti-SLAPP motion.
DISPOSITION
The judgment is reversed, and the matter remanded for further proceedings. Appellant is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.