Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BC 360179, Mary Ann Murphy, Judge.
Bander Law Firm, Cheryl Deptowicz-Diaz and Jason Ahdoot for Defendants and Appellants.
DiJulio Law Group, R. David DiJulio, Michael M. Bergfeld, for Plaintiffs and Respondents.
FLIER, J.
Respondents Maribel Liberato (Maribel) and Aurelio Liberato (Aurelio) filed an action for malicious prosecution of two unlawful detainer actions against appellants Mercedes Asuncion (Mercedes) and Remigio M. Ruano, Jr. (Remigio), and their attorneys, Bander Law Firm, LLP, Joel Bander and William R. Gilmore (collectively BLF). The trial court denied appellants’ Code of Civil Procedure section 425.16 special motion to strike the complaint. We affirm.
We refer to some of the parties by their first names for clarity, meaning no disrespect. We also sometimes use “appellants” to refer to Mercedes and Remigio alone or Mercedes, Remigio and BLF collectively as the context requires.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The present case, together with two related cases and four other cases, are part of ongoing litigation between members of a family. This is the second appeal brought before us associated with their dispute. Appellants Mercedes and Remigio and respondents Maribel and Aurelio are all children of Josefina Ruano. The property at issue is the family home located on Ripple Street in Los Angeles. The Ripple Street property purportedly is jointly owned by Remigio, Narciso Ruano (another of the Ruano children) and the Ruano revocable living trust. Mercedes claimed to be a successor trustee of this trust.
In the first appeal, Asuncion v. Howard, No. B197958, a nonpublished opinion decided by this court on January 8, 2008, we concluded in a related case that Mercedes and Remigio could not prevail in a claim for abuse of process against Maribel and Aurelio and their counsel for filing an elder abuse action for their mother, Josefina Ruano. We reversed the trial court’s denial of Maribel and Aurelio’s section 425.16 motion and directed the trial court to enter an order granting their motion and dismissing the abuse of process action. The general background of the numerous lawsuits between the warring factions of the family is described in our prior opinion and further described as relevant below.
In September 2005, respondents, purportedly as Josefina Ruano’s guardians ad litem, filed an action for elder abuse against appellant Mercedes. It is this action that respondents contend triggered a course of retaliatory conduct by appellants.
On November 30, 2005, Mercedes, represented by BLF, filed an unlawful detainer action against respondents regarding the Ripple Street property. In this first unlawful detainer action, Mercedes claimed she was the trustee of the family trust that owned the property and alleged the property was owned jointly by the trust together with Narcisco and Remigio. The verified complaint alleged that Maribel and her family had lived rent free on the property for 22 years, had no title or interest in the property, and no agreement to pay rent. Mercedes alleged the property was being sold “[i]n order to better care for Josephina... in her old age.” The complaint stated that respondents were given a 60-day notice of termination on September 27, 2005, i.e., about a week after respondents filed their elder abuse action, and respondents had not surrendered possession of the property. On March 20, 2006, the trial court entered a judgment in respondents’ favor on the merits in the action.
In March 2006, in a conservatorship proceeding filed by Mercedes for Josefina Ruano, the superior court issued an order directing the Ripple Street property to be sold, subject to court approval, with Josefina Ruano’s share of the proceeds from the sale to be placed in a blocked account for her benefit. This order was subsequently stayed in January 2007.
On March 7, 2006, before the trial court issued the judgment in the first unlawful detainer action, Remigio, represented by BLF, filed a second unlawful detainer action against respondents. The verified complaint claimed Remigio was a “co-owner” of the Ripple Street property. After a bench trial on July 10, 2006, the court rendered a judgment for respondents and against Remigio. The court ruled that, as a part owner, Remigio “had no authority to act on behalf of the other owners” and “if a property has multiple owners an action for unlawful detainer must be brought by all the owners and cannot be maintained by a partial owner lacking any power to act for all the owners.”
Neither Mercedes nor Remigio appealed the judgments in favor of respondents in the unlawful detainer actions, and the judgments became final.
In October 2006, respondents Maribel and Aurelio then filed the present complaint for malicious prosecution against the appellants, i.e., Mercedes, Remigio and their attorneys. The complaint alleged that appellants filed the unlawful detainer actions even though no reasonable attorney would have thought the claim legally tenable and appellants had no facts leading them to believe Mercedes, in the first unlawful detainer action, or Remigio, in the second unlawful detainer action, had authority to act on behalf of all the owners. Respondents alleged appellants brought the unlawful detainer actions in retaliation for filing the elder abuse action and out of hostility or ill will, without believing the claims would be held valid.
Appellants filed a section 425.16 to strike the complaint for malicious prosecution and requested sanctions against respondents. After the matter was continued several times, the trial court denied the motion. The court awarded respondents costs and attorney fees. Appellants timely appealed the order.
BURDEN OF PROOF AND STANDARD OF REVIEW
Section 425.16, subdivision (b)(1), provides for the striking of a cause of action based on an act in furtherance of a person’s constitutional right of petition or free speech in connection with a public issue, unless the plaintiff establishes there is a probability that he or she will prevail on her claim. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 998-999.) The defendant initially has the burden of making a prima facie showing that the plaintiff’s claims are subject to section 425.16. (ComputerXpress, Inc. v. Jackson, supra, at p. 999.) If the defendant makes that showing, the burden shifts to the plaintiff to establish a probability of prevailing, by presenting a prima facie showing of facts that would, if proved, support a judgment in the plaintiff’s favor. (Ibid.) In making these determinations, the court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “Whether section 425.16 applies, and whether the plaintiff has shown a probability of prevailing, are both questions we review independently on appeal.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.)
In reviewing an award of costs and attorney fees, we recognize that the trial judge is generally in the best position to determine the value of professional services in his or her court. We will not disturb the trial judge’s decision unless we are satisfied that it is clearly wrong. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
DISCUSSION
1. No Violation of Right to Due Process
Initially, we address appellants’ argument that they were denied due process because (1) the trial court ruled on their section 425.16 motion despite being advised appellants had not received the opposition and had no notice of the request for sanctions, and (2) the trial court’s order failed to state in sufficient detail the reasons for the sanctions.
Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612; see Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 622; see also U.S. Const., 5th Amend.; Cal. Const., art. I, § 7, subd. (a); Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428-430 & fn. 5.) The adequacy of notice must be determined on a case-by-case basis to satisfy basic due process requirements. (California School Employees Assn. v. Livingston Union School Dist. (2007) 149 Cal.App.4th 391, 397; In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.)
We hold appellants received reasonable notice to satisfy the requirements of due process and the order awarding sanctions also satisfies due process.
A. Notice of Opposition and Request for Sanctions
The trial court made express and implied findings on whether appellants received reasonable notice of respondents’ opposition and request for sanctions. At the hearing, when defense counsel asserted his office had not received an opposition to the section 425.16 motion, the court expressly stated it was making a “credibility call” and chose to disbelieve counsel regarding the failure to receive any opposition. We find sufficient basis in the record to support the court’s express and implied determinations in this regard.
Appellants filed their special motion to strike on December 13, 2006, setting the date of hearing for January 8, 2006. Appellants asked the court to award them sanctions of $9,952.50 in attorney fees and costs should they prevail on their motion. Respondents applied ex parte to continue the hearing because of their counsel’s unavailability. The court therefore continued the motion to January 31, 2007, and ordered any opposition to be filed no later than January 18, 2007, and any reply to be filed no later than January 24, 2007.
This is an obvious typographical error, and we presume appellants intended to set the hearing date for January 8, 2007.
Respondents timely served and filed their opposition to the motion on January 18, 2007. In the opposition, respondents asked the court to award them attorney fees and costs of $7,250 pursuant to section 425.16, subdivision (c). Respondents’ counsel provided a declaration under oath setting forth the time she spent in opposing the motion, her hourly rate and anticipated time to attend the hearing. Respondents also attached a proof of service that declared the opposition was personally served upon appellants on January 18, 2007.
For reasons not reflected in the record, the hearing on the special motion to strike was continued to March 8 and then again to March 16, 2007.
On March 5, 2007, three days before the then-scheduled March 8 hearing, appellants served, and later filed, a “notice of non-receipt” of opposition to their section 425.16 motion. Appellants’ notice asked the court to strike any late-filed opposition and not consider it in ruling on the motion.
On March 6, 2007, respondents’ counsel responded by serving and filing a declaration stating under oath that respondents had personally served appellants and filed the opposition on January18. Counsel attached a copy of the proof of service and a copy of the clerk’s conformed filed cover sheet showing the opposition was filed on January 18. Appellants failed to take any action in response to counsel’s declaration.
The trial court heard the section 425.16 motion on March 16, 2007. The court called the matter and took the appearances of counsel. After some discussion regarding a prior motion to be relieved as counsel, the court invited all counsel to be seated. The court orally outlined the showing necessary under section 425.16, including the shifting burdens of the parties and applicable case law, nature of the required proof and the standard used in determining whether the plaintiffs had met their initial burden.
The court’s description of these requirements takes up almost three full pages of the reporter’s transcript. There is no indication in the record that appellants raised, or even attempted to interpose, any objection during the court’s discourse. After explaining the applicable standards, the court orally concluded that “[respondents] have met their burden of proving minimal merit.”
The trial court then proceeded with further analysis, going through its intermediate rulings, reflected in another four pages of the reporter’s transcript. The court listed the elements of a malicious prosecution action and the showing required for a prima facie case. The court applied those principles to the facts at hand, indicating that the complaint sufficiently pled the elements of a malicious prosecution cause of action and that respondents had made a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence they submitted were credited. The court referred to the evidence that supported its conclusions.
Finally, the court discussed the issue of sanctions and referred to the governing provisions. (§ 425.16, subd. (c); see also § 128.5, subds. (a), (b)(1) & (2).) Under those provisions, the court found that appellants’ section 425.16 motion was frivolous and was brought for the purpose of unnecessary delay. The court awarded sanctions of $7,250 against appellants (including BLF) as requested in the opposition. At that point, the court inquired of appellants, “Did you want to argue that?”
It was only then, at page 10 of the reporter’s transcript, that defense counsel for the first time raised an issue about not receiving the opposition. Defense counsel stated he was told by another attorney in his office that “we never got the opposition....” Respondents’ counsel informed the court that the opposition had been personally served and filed on January 18, as shown by the court record. The court noted appellants had not promptly raised the issue and did so only after the court had stated its intention to deny appellants’ motion and to award sanctions. The court indicated several remedies had been available to appellants. Appellants could have (1) applied ex parte to continue the hearing, (2) raised the issue of nonreceipt of any opposition at the beginning of the hearing rather than after the court had tentatively ruled, (3) called opposing counsel to request a copy of the opposition after receiving notice an opposition had been served and filed, or (4) downloaded a copy of the opposition directly from the Internet. Appellants, however, apparently did none of those things, nor did they seek reconsideration of the court’s ruling to present further evidence or facts to the court.
Making a credibility determination, the trial court stated, “I have a long history with these lawyers. It’s not like these lawyers are coming in for the first time. I usually don’t make calls like this when there’s a claim of nonreceipt, but in this case I feel comfortable continuing with the hearing because of the fact that it wasn’t [brought] out by the defense attorney that he didn’t get the opposition until after I gave my tentative ruling. He had adequate time to do so. [¶] [Respondents’] attorney is saying she never got a call. The [defense] attorney in court here is not saying that he made the call personally, but somebody else said a call was made.”
We take judicial notice that a similar argument of nonreceipt of notice was made by appellants to explain counsel’s failure to appear for a hearing in the related case of Asuncion v. Howard. We held that there is a presumption of regularity in proceedings, and, absent a showing to the contrary, we would presume all counsel received appropriate notification that a hearing had been continued. The same presumption of regularity applies to respondents’ service of their opposition papers upon appellants in the present matter. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:17, p. 8-5 (rev. # 1, 2005).) Absent a showing to the contrary by admissible evidence, we presume service was regularly effected as indicated by the proof of service attached to the opposition filed with the court and as attested to by respondents’ counsel.
We find from a review of the record and the history sufficient evidence to support the trial court’s express and implied findings that appellants were appropriately served with the opposition and knew, or at the minimum should have known, of the opposition and its contents, including the request for monetary sanctions. We note the trial judge had long experience with the parties. She was the judge presiding over many of their disputes. Most significantly, the trial judge premised her ruling on an issue of credibility. We conclude appellants received notice of respondents’ opposition, including the request for sanctions, and a reasonable opportunity to be heard on the matter.
B. Sufficiency of Order Awarding Sanctions
On the second issue, we conclude the trial court’s order imposing sanctions did not violate appellants’ right of due process.
Section 425.16, subdivision (c), incorporates the provisions of section 128.5, subdivision (c). (Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 682; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 9:1010.2, p. 9(III)-6 (rev. # 1 2008).) That statute provides that an order imposing sanctions “shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” (§ 128.5, subd. (c).) “Recitation of the facts justifying a sanctions order fulfills the rudiments of due process in two ways. First, the recitation requirement ensures the power conferred by statute will not be abused. Second, in some cases the court’s recitation will be an invaluable aid to a reviewing court in determining whether the trial court abused its discretion in awarding sanctions.” (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 996.)
We disagree with respondents’ contentions that section 128.7, rather than section 128.5, is the “current” statute authorizing sanctions under section 425.16 and that “there is no requirement that the reasons be part of a written order.” Section 425.16, subdivision (c) specifically provides, “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5 .” (Italics added.) At least when sanctions are awarded to a plaintiff, section 128.5 controls. (See Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392 [court must use procedures and apply substantive standards of § 128.5 in determining whether to award attorney fees under anti-SLAPP statute].)
It has been held that a trial judge’s oral recitation on the record alone of the reasons for imposing sanctions is insufficient. (Jansen Associates, Inc. v. Codercard, Inc. (1990) 218 Cal.App.3d 1166, 1171.) And a bare conclusory statement, without more, has been held not sufficient compliance with section 128.5, subdivision (c). (See Fegles v. Kraft (1985) 168 Cal.App.3d 812, 816.) Here, however, the court orally indicated in detail the basis for the sanctions award in the reporter’s transcript and also referred to and incorporated its oral statements in a written minute order. We find this sufficient. (See Olson Partnership v. Gaylord Plating Lab, Inc. (1990) 226 Cal.App.3d 235, 241 [detailed formal order not required where reporter’s transcript and minute order state specific reasons for imposition of sanctions].) No more is required than a written factual recital, with reasonable specificity, of the circumstances leading the trial court to find conduct to be sanctionable under the relevant code section. (Jansen Associates, Inc. v. Codercard, Inc., supra, 218 Cal.App.3d at p. 1171 .)
At the hearing, after reciting the facts whereby respondents established a prima facie claim for malicious prosecution, the trial court further stated: “Under [section] 425.16[, subdivision] (c), if the court finds that a special motion to strike is frivolous or intended solely to cause unnecessary delay, the court shall award costs and attorney’s fees to the prevailing plaintiff on the motion, pursuant to section 128.5. [¶] Section 128.5[, subdivision] (a) states that every trial court may order a party, the party’s attorney, or both to pay reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. [¶] Subsection (b)(1) defines ‘actions or tactics’ as ‘the making or opposing of motions.’ [¶] Subsection (b)(2) defines ‘frivolous’ as ‘totally and completely without merit or for the sole purpose of harassing an opposing party.’ [¶] The court agrees that [appellants’] instant motion is frivolous and was brought for the purpose of unnecessary delay. [¶] [Respondents’] request for attorney’s fees of $7,250 is granted against the attorneys and the clients.”
Moreover, if appellants deemed the trial court’s explanation of its ruling somehow inadequate, appellant could have asked for a further explanation from the court. “‘All intendments and presumptions are indulged to support [the order] on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
The trial court’s explanation of the basis for its ruling and award of attorney fees and costs satisfied the minimum requirements of due process in specifying the conduct and circumstances justifying the imposition of such sanctions.
2. The Trial Court Properly Denied the Section 425.16 Motion
Appellants assert the section 425.16 special motion to strike should have been granted because as a matter of law the complaint failed to satisfy the essential elements of a cause of action for malicious prosecution. Specifically, appellants contend the complaint fails to show the underlying unlawful detainer actions were brought without probable cause or were initiated with malice. They argue that respondents cannot establish appellants lacked probable cause at the time the unlawful detainer actions were instituted because the attorney appellants acted as any reasonable attorney in filing the unlawful detainer actions. Appellants state the unlawful detainer actions were brought in good faith, by owners of the Ripple Street residence, and for the sole purpose of evicting respondents, who were not paying rent and did not have any claim to the property, as well as to obtain money for their elderly and sick mother.
Mercedes asserts she reasonably relied on the trust documents and upon a doctor’s declaration of her mother’s incapacity, and she reasonably believed she had the power as trustee to evict nonpaying occupants and to sell the house. Remigio asserts he had probable cause to institute his unlawful detainer action as 25 percent coowner and real party in interest of the Ripple Street residence.
Appellants contend it was only when the trial court sua sponte determined in the second unlawful detainer action that all owners are necessary to institute an unlawful detainer action that anyone, including respondents’ counsel, became aware there was a “unitary rule” and respondents had never previously raised such a defense.
We reject these contentions.
A. Act in Furtherance of Right to Petition
We first determine that appellants have satisfied their required threshold showing that the complaint for malicious prosecution is based on an act in furtherance of their constitutional rights of petition and free speech in connection with a public issue. “By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.) The filing of a lawsuit is thus an aspect of the First Amendment right of petition. (Jarrow Formulas, Inc., supra, at p. 736, fn. 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) In fact, respondents concede that a malicious prosecution action “comes beneath the umbrella of section 425.16.”
B. Probability of Prevailing on the Merits
It is regarding the second element, respondents’ probability of prevailing on the merits of the action for malicious prosecution, that the parties disagree. To prevail on a malicious prosecution claim, a plaintiff must show that the underlying action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871; Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.) We conclude respondents have met their burden of presenting a prima facie case of malicious prosecution.
Regarding the first element of a malice prosecution action, the evidence proffered by respondents demonstrates that the unlawful detainer actions were brought by appellants and were pursued by appellants until legally terminated. Both actions ended after a court trial with a dismissal in favor of respondents on the merits.
As to the second element, whether a plaintiff had probable cause to bring a prior action is judged by “whether as an objective matter, the prior action was legally tenable or not.” (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 868; see also Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.) “‘A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’” (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292, quoting Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165.)
The parties cite to conflicting, and ultimately largely irrelevant, facts that they argue either support or disprove whether appellants had probable cause to bring the unlawful detainer actions. We are persuaded, however, that the record before us establishes respondents have sufficiently shown that for purposes of defeating a SLAPP motion there was no probable cause for appellants to bring the unlawful detainer actions because they were brought upon a legally untenable theory.
In the first unlawful detainer action, brought by BLF on Mercedes’ behalf as a purported trustee, the complaint alleged that the family trust owned the Ripple Street property jointly with two other alleged owners, Narcisco and Remigio. The complaint on its face therefore showed that, even if it were assumed Mercedes was the trustee of the family trust and had authority to bring a legal action on its behalf, as a matter of law Mercedes did not have sufficient standing to bring an unlawful detainer action for the Ripple Street property because the trust was only a joint owner of the property and the complaint failed to show Mercedes had authority to act for the remaining owners. Similarly, the second unlawful detainer action, brought by BLF on Remigio’s behalf, alleged that Remigio was only a coowner of the Ripple Street property and failed to show Remigio was acting with authority of all the alleged owners. The verified complaint alleged respondents were tenants at will through an oral agreement with Josefina Ruano, who was a coowner of the property before she granted her interest to the family trust. The complaint stated the trust “now owns a one-third interest” in the Ripple Street property. Those allegations established that respondents properly occupied the property by license through Josefina Ruano. Indeed, the first unlawful detainer action filed by the same attorneys admitted respondents had been living on the property for 22 years and there was no agreement to pay any rent.
There appears to be some question whether Narcisco and Remigio in fact are properly coowners of the Ripple Street property with the trust, but a resolution of that issue is not necessary to this appeal.
The unlawful detainer complaints in themselves establish there was no legal basis for BLF, Mercedes or Remigio to bring the unlawful detainer actions, and the trial court determined as much by dismissing the actions. In dismissing the second unlawful detainer action, the trial court expressly found that, as part owner, Remigio “had no authority to act on behalf of the other owners.” As the court explained, “if a property has multiple owners an action for unlawful detainer must be brought by all the owners and cannot be maintained by a partial owner lacking any power to act for all the owners.”
The dismissal of the unlawful detainer cases rests on sound and long established law. It has long been held that a cotenant has no right to oust a person who holds possession with the consent of another tenant in common. (Lee Chuck v. Quan Wo Chong & Co. (1891) 91 Cal. 592, 598; Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352; Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 454; see 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, §§ 41, 51, pp. 92, 100.) Accordingly, a wrongful detainer action may not be brought by one cotenant to oust a lessee or licensee of another cotenant. (Lee Chuck v. Quan Wo Chong & Co., supra, at p. 598.) “The other cotenants cannot cancel the lease or license; nor can they recover exclusive possession of the entire property. They are only entitled to the enjoyment of possession with the lessee or licensee, and if they dispossess the lessee, they may themselves be liable for trespass.” (5 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 12:3, p. 12-8, fns. omitted.)
The appropriate inquiry in resolving the issue of probable cause is whether the prior action was objectively reasonable. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875; Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 165.) The court determines whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable, not whether the defendant or his or her attorney subjectively believed it was. (Sangster v. Paetkau, supra, at pp. 166-167 & fn. 8.) On the face of the complaints, there was no probable cause for BLF, Mercedes and Remigio to bring the unlawful detainer actions because the facts known to them made such action legally untenable.
Appellants contend respondents cannot establish a probability of prevailing on their malicious prosecution action because they have not shown the element of malice. They argue that respondents cannot prevail on their claim because they cannot show any malice by appellants at the time they filed the unlawful detainer actions. We disagree.
The element of malice does go to the defendant’s subjective intent in initiating the prior action. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 874.) For purposes of a malicious prosecution action, malice “‘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.’ [Citation.]” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.) Suits bearing the hallmark of an improper purpose include suits in which the plaintiff has no belief his or her claim may be held valid, litigation is initiated because of hostility or ill will or solely for the purpose of depriving the defendant the beneficial use of his or her property, or the suit is begun to force a settlement that has no relation to the merits of the claim. (Ibid.)
Respondents proffered evidence that appellants filed six separate lawsuits, including the two unsuccessful unlawful detainer actions and two unsuccessful abuse of process lawsuits, in response to the elder abuse lawsuit filed by respondents. Respondents contend these lawsuits, the two unlawful detainer actions in particular, were initiated in an attempt to divert respondents’ time, effort and financial resources away from their prosecution of the elder abuse lawsuit. Respondents’ counsel provided a declaration setting forth the history of what the trial judge, who was well familiar with the family conflict, found to be “internecine warfare.” BLF commenced both unlawful detainer lawsuits and remained as attorneys for Mercedes and Remigio throughout all this litigation. The second unlawful detainer action was commenced even before the judgment in the first unlawful detainer action, an indication appellants had no expectation the first action would be successful.
Malice can range anywhere from open hostility to indifference. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291.) Although the absence of probable cause, without more, is not sufficient to establish malice, malice may be inferred from facts establishing lack of probable cause. (Id. at p. 292; see also Sycamore Ridge Apartments LLC v. Naumann, supra, 157 Cal.App.4th at p. 1409.) A reasonable finder of fact may properly draw an inference that the litigation commenced by appellants was the result of hostility or ill will, solely for the purpose of depriving respondents of the beneficial use of their property or intended to force a settlement having no relation to the merits of the claims. Certainly, respondents have shown the “minimal merit” necessary to defeat a section 425.16 motion. (Ibid.)
We conclude respondents have met their burden of showing a probability of prevailing on their malicious prosecution claim.
3. The Court Properly Awarded Attorney Fees and Costs
As we have previously noted, ante, section 425.16, subdivision (c), authorizes an award of costs and reasonable attorney fees to a prevailing plaintiff “‘[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay....’” (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 632 [sanctions may be awarded when court finds motion was meritless or frivolous and pursued in bad faith].) Although appellants challenge the imposition of sanctions, they appear not to dispute the amount of sanctions awarded. The declaration of respondents’ counsel, setting forth her hourly fee and time expended, provided substantial evidence of the fees and costs respondents incurred in opposing the motion. (See Ketchum v. Moses, supra, 24 Cal.4th at pp. 1131, 1136 [special motion to strike is subject to statutory fee shifting using lodestar method].) The trial court found on substantial evidence that appellants’ section 425.16 motion was frivolous and solely intended to cause unnecessary delay, and it therefore did not abuse its discretion in awarding respondents their costs and attorney fees in defending against the special motion to strike.
DISPOSITION
The order denying the section 425.16 motion and granting costs and attorney fees is affirmed. Respondents are to recover costs on appeal.
We concur: RUBIN, Acting P. J., BIGELOW, J.