Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Josephine Staton Tucker, Judge. Super. Ct. No. 30-2008-00106628
Stephen Kent Ehat for Plaintiffs and Appellants.
Kirtland & Packard, Robert K. Friedl and Joshua A. Fields for Defendants and Respondents.
OPINION
O’LEARY, J.
Jimmy A. Sutton, Mark Klein, and Paul S. Kessler (hereafter sometimes collectively referred to as the Plaintiffs), appeal from a judgment dismissing their malicious prosecution/abuse of process action against the law firm Pistone & Wolder LLP, and attorneys Thomas A. Pistone and Eric J. Medel (hereafter collectively and in the singular “P&W” unless the context indicates otherwise), after the trial court granted P&W’s special motion to strike the complaint. They raise several arguments, none of which have merit. We affirm the judgment.
Code of Civil Procedure section 425.16 authorizes a special motion to strike a Strategic Lawsuit Against Public Participation (SLAPP) action, and is referred to as the anti SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.) All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTS & PROCEDURE
The TCPA Small Claims Actions Against P&W’s Client
Sometime prior to 2006, Sutton, Klein, and Kessler individually filed and successfully pursued to judgment a collective total of over 100 small claims court actions against P&W’s client Optima Funding, Inc. (Optima), for violations of the Telephone Consumer Protections Act (TCPA) (47 U.S.C. § 227). The TCPA prohibits sending unsolicited advertisements to fax machines and authorizes anyone receiving such a fax to bring an action seeking injunctive relief and $500 in damages (plus treble damages for willful or knowing violations) for each violation. (47 U.S.C. § 227(b)(3)(A)-(C).) Another individual, Wayne Strang (who is not a party to this action), was similarly successful in repeatedly pursuing Optima in small claims court for TCPA violations.
Optima’s Action Against Sutton and Strang/The First Special Motion to Strike
In March 2006, Optima, represented by P&W, filed an action in Los Angeles County Superior Court against the Plaintiffs and Strang alleging violations of the Unfair Business Practices Act (Bus. & Prof. Code, § 17200 et seq.). (Optima Funding, Inc. v. Sutton et al. (Super. Ct. L.A. County, 2006, No. YC052828), hereafter the UCL action.)The complaint alleged that prior to enactment of the TCPA, companies regularly advertised by sending “junk faxes” and since passage of the TCPA, a “cottage industry” arose of private TCPA enforcement for financial gain. Individual plaintiffs had generated “hundreds of thousands of dollars of profits by seeking out unsolicited faxes in order to create claims.” Businesses like Optima ceased using faxes for advertisement, and prohibited their contractors from doing so, to eliminate the risk of TCPA violations. Accordingly, Optima alleged would-be TCPA claimants like the Plaintiffs and Strang had resorted to manufacturing and/or transmitting among themselves prohibited advertising faxes so as to generate lucrative TCPA claims.
In June 2006, the Plaintiffs’ special motion to strike the UCL action was granted and they were awarded their attorney fees. Optima appealed but later voluntarily dismissed its appeal. Strang filed his own special motion to strike, which was granted and that order was affirmed on appeal. (Optima Funding, Inc. v. Strang (May 16, 2007, B191875) [nonpub. opn.].)
The Current Malicious Prosecution Action & Second Special Motion to Strike
On May 9, 2008, the Plaintiffs filed the instant complaint for malicious prosecution and abuse of process against Optima, its owner Ali Shah, P&W, and individual attorneys Pistone and Medel. The Plaintiffs alleged that at no time did they manufacture or falsify evidence in their small claims actions. They alleged that just in the first half of 2004, Optima had caused millions of unsolicited faxes to be sent out. They alleged P&W filed the UCL action to have a means to conduct discovery, which P&W believed was otherwise unavailable in small claims actions, and the UCL action was filed without probable cause.
Current Special Motion to Strike
In October 2008, P&W filed a special motion to strike the Plaintiffs’ complaint (Optima and Shah were not parties to the motion, and apparently Optima has since gone out of business). P&W contended the malicious prosecution action arose out of protected activity (i.e., filing the underlying UCL action on behalf of its client) and the Plaintiffs had no probability of prevailing. As to the malicious prosecution cause of action, P&W asserted the Plaintiffs could not demonstrate lack of probable cause or malice. With regards to the abuse of process cause of action, P&W asserted the mere filing or maintenance of an action could not constitute abuse of process.
Pistone submitted his declaration. Pistone explained he had investigated and defended Optima against “hundreds of [TCPA] small claims actions....” Optima did not directly send out advertising faxes but bought “leads” from “lead-generating firms....” To ameliorate the risk of TCPA violations, Optima prohibited lead-generating firms with which it contracted from sending out unsolicited faxes. Optima also terminated its business relationships with, and had even commenced legal actions against, companies that continued to send out unsolicited faxes advertising Optima’s services.
The Plaintiffs filed a request that we take judicial notice of records of the California Secretary of State concerning the date of Optima’s incorporation. Because the evidence was not before the trial court, we deny the request. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [“[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court”].)
Nonetheless, even after taking these steps, Pistone observed “the same small group of individuals, including [the defendants in the underlying UCL action]” kept filing TCPA small claims actions against Optima. He learned several of these individuals were sharing information on a Web site called junkfax.org and giving advice to one another on how to pursue small claims court TCPA actions and how to maintain multiple actions without violating court rules. Pistone observed that one individual claimed to have received 80 to 90 faxes from Optima in a “very short period of time” defying common sense because “there was no logical reason as to why the same fax would be sent 80 or 90 times to the same person, especially to individuals who showed a propensity to file small claims actions.” Pistone observed the “alleged faxes did not contain headers or footers indicating where they were sent from, or what fax number they were sent to. Furthermore, the phone numbers on these faxes were not Optima’s phone number, and Optima began to suspect that this small group of individuals were fabricating faxes, or sending them back and forth to each other, in order to generate multiple small claims actions that they could then reap profits from.”
Pistone declared he had set about to ascertain how the faxes were being generated, since Optima was not sending them, and its contractors were prohibited from sending them. He wrote to several of the individuals, including Sutton, Klein, and Strang, asking them to provide him with the fax numbers at which they were receiving the unsolicited faxes and to provide him with copies of the faxes showing the phone numbers and time and date stamps. Each refused to provide Pistone with any of the information he requested and in a telephone conference one of them even commented “‘if Optima was not sending the faxes then how could Optima cause the faxes to be stopped....’” Pistone came to believe the faxes were being fabricated. It was only after Pistone’s “thorough investigation” and his failed efforts at talking with the individuals who were filing the TCPA small claims court actions that P&W filed the underlying UCL action. He declared “[t]he sole motivation for filing the action... was to zealously represent the interests of Optima, which had been financially harmed and was otherwise going to be subjected to the continuation of hundreds of small claims actions.”
Medel similarly declared the underlying UCL action arose out of allegations the Plaintiffs were maintaining TCPA small claims court actions based on fabricated evidence. Because the UCL action was dismissed upon granting the Plaintiffs’ special motion to strike, no discovery was conducted. Medel’s sole motivation in pursing the action was to represent the interests of his client, Optima.
On November 7, 2008, the Plaintiffs filed their opposition to P&W’s special motion to strike. Sutton, Klein, and Kessler each filed declarations stating they had (collectively) filed and won 119 TCPA small claims actions against Optima and none were based on fabricated evidence. They declared that in none of the small claims cases had Optima presented any evidence demonstrating the faxes had been fabricated. In fact, they had subpoenaed from Optima any documents that would substantiate its claim the faxes were fabricated and Optima did not produce any such documents.
The Plaintiffs included in their opposition a judgment entered in a case titled JNS Copy Service, Inc. v. Optima Funding, Inc. et al. (Super. Ct. L.A. County, 2006, No. LC068480), whereby Optima was enjoined from sending unsolicited faxes, and it was ordered to pay plaintiff in that case almost $400,000 in damages and attorney fees. The trial court in that case had found by clear and convincing evidence Optima’s TCPA violations were willful, knowing, and malicious.
Ruling and Entry of Judgment
On November 25, 2008, the trial court granted P&W’s special motion to strike and entered judgment dismissing the Plaintiffs’ complaint as to the attorney defendants (P&W, Pistone, and Medel). The trial court found the UCL action arose out of protected activity. Therefore, the burden was on the Plaintiffs to demonstrate a probability of prevailing. As to the malicious prosecution cause of action, the court noted the underlying UCL cause of action was viable if the Plaintiffs had altered or destroyed evidence. The court found the facts contained in Pistone’s declaration established he had a reasonable belief Optima had a tenable claim—“the declaration establishes objective facts about the faxes that would cause a reasonable person to question their source.” It was uncontroverted Pistone had contacted the Plaintiffs to attempt to identify the source of the documents and they did not respond. The Plaintiffs’ denial they altered or destroyed evidence in the TCPA small claims court actions “[did] not go to the issue in this case, which is the attorneys’ reasonable belief in a tenable claim.”
The trial court also found there was no evidence of malice. As to the abuse of process cause of action, the court found merely filing an action for an improper purpose was not sufficient for abuse of process—the Plaintiffs must show “a misuse of the tools the law affords the litigant.” The Plaintiffs argued the UCL action was filed for the purpose of conducting discovery, but there was no evidence that had happened.
Motion for Reconsideration
On December 4, 2008, the Plaintiffs filed a motion for reconsideration pursuant to section 1008, subdivision (a), of “(1) [the court’s] November 25, 2008 Minute Orders, (2) its November 25, 2008 Order Granting Special Motion to Strike, and (3) its November 25, 2008 Judgment[,]” based on new evidence. They explained that about one year before their action was filed, their former co-defendant in the UCL action, Strang, had filed his own malicious prosecution action against P&W, which had been settled. On November 19, 2008, before the hearing on P&W’s special motion to strike, but after the Plaintiffs’ opposition was filed, the Plaintiffs and their attorneys obtained a copy of a declaration filed by Pistone in the Strang action in December 2007. The declaration contained much of the same information as the one filed by Pistone in the current case but included Pistone’s additional statement as follows: “Because all of these individuals [i.e., the defendants named in the UCL action] were filing their suits in small claims court, where no discovery is allowed, I felt that an action in Superior Court was the only vehicle to take depositions or do other discovery to determine the origin of these faxes. As the underlying [UCL] action was dismissed due to a special motion to strike, Optima conducted no discovery in that action. [¶]... In summary, before filing the [UCL] action... my firm conducted a diligent and thorough investigation, and came to the conclusion that there was some type of potential manipulation or fabrication going on, involving the creating of faxes that could be used to file hundreds of small claims actions. Without some discovery to either corroborate or dispel that concern, it was not possible to protect Optima from the hundreds of small claims actions that were being filed.” The Plaintiffs argued this declaration constituted a “smoking gun”— an admission by Pistone the UCL action was filed for an illegal purpose.
In its opposition, P&W argued the trial court lacked jurisdiction to rule on the Plaintiffs’ motion for reconsideration because judgment had already been entered. In their reply, the Plaintiffs asserted they had filed the motion before receiving notice judgment had been entered and they asked the court to consider the motion to be one to vacate the judgment. At the hearing on the motion for reconsideration, the Plaintiffs’ counsel again asked the court to treat the motion as one to vacate the judgment. The court commented that assuming it had discretion to treat the motion as one for new trial or to vacate the judgment, it would not do so. The argument had been raised in the Plaintiffs’ reply with absolutely no analysis of the standards applicable to either a new trial motion or motion to vacate judgment or any analysis as to why the standards for granting such motions had been met. The court denied the motion for reconsideration due to lack of jurisdiction.
DISCUSSION
A. General Principles
Section 425.16, subdivision (b)(1), states, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Section 425.16 is to be “construed broadly.”
Consideration of a section 425.16 special motion to strike anticipates a two step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We review a trial court’s ruling on a special motion to strike de novo. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675.)
B. Motion for Reconsideration
Prior to undertaking our usual analysis of a special motion to strike, we must address some preliminary matters. The Plaintiffs’ notice of appeal states they appeal from the November 25, 2008, judgment and order granting the special motion to strike and from the January 9, 2009, postjudgment order denying their motion for reconsideration.
In their opening brief, the Plaintiffs acknowledge an order denying a section 1008 motion for reconsideration “of course, is not appealable....” (See Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229-1230.) They also implicitly concede that because judgment had already been entered, the trial court could not entertain a motion for reconsideration. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) But the Plaintiffs argue the trial court nonetheless had discretion to construe their motion for reconsideration as a new trial motion and rule on it as such. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 (Sole Energy).) And although nowhere in their briefs do the Plaintiffs specifically argue the trial court abused its discretion by refusing to construe their motion as a new trial motion, nor do they provide any analysis as to whether the requisites for granting new trial were met, they assert the new trial motion should have been granted and the special motion to strike must be viewed in light of the new evidence presented therein.
All of this, of course, is the mechanism by which the Plaintiffs justify their heavy reliance on appeal on the 2007 Pistone declaration, which was not part of their opposition to the special motion to strike. We conclude the trial court did not err by refusing to consider the Plaintiffs’ postjudgment motion, and the 2007 declaration need not be considered in our review.
The Plaintiffs’ reliance on Sole Energy, supra, 128 Cal.App.4th 187 is misplaced. In Sole Energy, plaintiffs filed a section 1008 motion for reconsideration of the court’s order granting summary judgment the same day judgment dismissing the complaint was entered. The trial court deemed the motion for reconsideration to be a motion for a new trial, and granted it on the grounds the court “‘made an error and misapplied the law when it granted [the summary judgment motions].’” (Id. at p. 192.) On appeal, this court held the trial court had discretion derived from its “inherent authority to manage and control its docket” to consider and rule upon the motion regardless of the “label” placed on it (id. at p. 193), provided of course “the motion for reconsideration... adequately set forth the grounds on which the motion was to be made, and its bases, and therefore met the procedural requirements of a motion for a new trial.” (Id. at p. 195.)
Sole Energy did not suggest the trial court must treat a motion for reconsideration as a motion for new trial whenever the former motion may no longer be entertained, only that it is within the trial court’s discretion to do so under proper circumstances. The trial court here expressly stated that assuming it had such discretion it would not treat the Plaintiffs’ motion for reconsideration as a motion for new trial as there had been no showing by the Plaintiffs the standards for granting such a motion had been met.
The Plaintiffs have not shown the trial court abused its discretion in declining to consider their motion. The Plaintiffs suggest theirs is a case like Sole Energy, where a motion for reconsideration was filed without their knowledge and judgment had already been entered. But such a suggestion is specious given the court clerk served the Plaintiffs with the court’s minute order that specifically stated judgment had been signed and filed, and that the Plaintiffs’ motion specifically asked the court to reconsider “its November 25, 2008 Judgment[.]”
Furthermore, the Plaintiffs made no showing below, or on appeal, the standards for granting a new trial motion had been met—they do not so much as cite the statutes applicable to such a motion, sections 657 and 659. To obtain a new trial on the grounds of new evidence “‘(1)... the evidence is newly discovered; (2)... reasonable diligence has been exercised in its discovery and production; and (3)... the evidence is material to the movant’s case.’ [Citation.]” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) The same diligence standard applies to a section 1008 motion for reconsideration on the grounds of new evidence. (See New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)
Here, the Plaintiffs received the 2007 Pistone declaration a few days before the hearing on the special motion to strike, but did not bring it to the court’s attention until after the court had granted the motion. The Plaintiffs suggest they could not have brought the declaration to the court’s attention before it ruled because they had already filed their opposition before obtaining the declaration. But the Plaintiffs offer no explanation as to why they could not have obtained the declaration earlier. They were well aware of the Strang malicious prosecution action, and declared they were communicating with Strang and his attorney monitoring the progress of Strang’s action. Without showing they could not, with reasonable diligence, have discovered and produced the new evidence earlier, the Plaintiffs were not entitled to have their motion granted. Accordingly, the 2007 Pistone declaration is not relevant to our review.
C. Applicability of Section 425.18
The Plaintiffs argue section 425.18, the “SLAPPback” statute, and particularly section 425.18, subdivision (h), precluded P&W from even filing a special motion to strike their malicious prosecution complaint. This argument was not raised below, and for that reason alone we may reject it. (See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818, fn. 36 [theory raised for first time on appeal from judgment entered on summary judgment motion not considered].) Furthermore, it is without merit.
Section 425.18, governs the applicability of the SLAPP statute to “SLAPPbacks,” i.e., a malicious prosecution/abuse of process action that arises out of a prior action that was itself dismissed pursuant to an anti-SLAPP motion. (§ 425.18, subd. (b)(1).) It is largely procedural, affecting the time for filing a special motion to strike, the right to conduct discovery while the motion is pending, the right to mandatory attorney fees, and the appealability of an order denying a special motion to strike.
Section 425.18, subdivision (h), provides, “A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.” It was the Plaintiffs’ burden “to show that the underlying lawsuit was illegal as a matter law... either [because] the defendant concedes the unlawfulness of the ‘assertedly protected activity’ or its illegality is ‘conclusively established by the evidence’ presented in connection with the special motion to strike. [Citation.]” (Hutton v. Hafif (2007) 150 Cal.App.4th 527, 541 (Hutton).) In sustaining that burden, the Plaintiffs, “‘must identify with particularity the statute or statutes’ violated by the filing and maintenance of the underlying lawsuit... [and] demonstrate the manner in which the statute or statutes were contravened with reference to the specific statutory elements that have been violated. [Citation.]’” (Ibid.)
On appeal, the Plaintiffs refer to section 116.310, which provides “pretrial discovery procedures described in [s]ection 2019.010 are not permitted in small claims actions.” They argue Pistone’s 2007 declaration demonstrates the UCL action was “illegal as a matter of law” because it was filed by P&W so as to permit Optima to conduct discovery regarding the origins of the faxes that were the basis for the Plaintiffs’ TCPA small claims actions.
But Pistone’s 2007 declaration was not before the trial court on the special motion to strike, and thus, it does not satisfy the Plaintiffs’ burden. Furthermore, it does not support the Plaintiffs’ position. To sustain their burden, the Plaintiffs must “prove the filing and maintenance of the underlying lawsuit was ‘illegal as a matter of law’....” (Hutton, supra, 150 Cal.App.4th at p. 545.) In the context of section 425.18, subdivision (h), an “‘[a]n illegal act is an act “[f]orbidden by law.” [Citations.]’” (Hutton, supra, 150 Cal.App.4th at p. 545.) The evidence does not indisputably demonstrate filing the UCL action was itself an act forbidden by any statute, nor did Pistone concede filing the lawsuit was illegal. Nothing on the face of section 116.310 renders filing a civil action illegal. At best, the 2007 Pistone declaration would demonstrate a possibly improper motive in filing the UCL action, but that does not render filing the action an illegal act as a matter of law. Because the Plaintiffs failed to demonstrate the UCL action was “illegal as a matter law,” the order striking their complaint cannot be set aside on the grounds the special motion to strike could never have been filed.
D. Traditional SLAPP Analysis
We turn then to the traditional analysis applicable to a special motion to strike. As it is undisputed a malicious prosecution/abuse of process action arises out of protected conduct and is subject to a special motion to strike (see Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow Formulas)), we proceed directly to the second step and consider whether the Plaintiffs established a probability of prevailing on their causes of action for malicious prosecution and abuse of process. They did not.
1. Malicious Prosecution Cause of Action
The basic elements of the tort of malicious prosecution of a civil matter are (1) the initiation of a prior proceeding, (2) without a reasonable belief in the possibility of the suit being successful (i.e., probable cause), (3) termination of that proceeding in favor of the present plaintiff, and (4) malice. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 486, p. 712; Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 449.) The first and third elements are not disputed—P&W initiated the UCL action, and it was terminated in the Plaintiffs’ favor.
In their opening brief, the Plaintiffs neither discuss any of the elements of the malicious prosecution tort, nor discuss any of the legal requisites for the underlying UCL cause of action. They simply argue the evidence submitted by P&W in support of the special motion to strike did not demonstrate Pistone had a reasonable belief Optima had a tenable claim against the Plaintiffs, which misstates the burden—it was the Plaintiffs burden to demonstrate a lack of probable cause. The Plaintiffs do not discuss the malice element.
Whether there was probable cause to bring a lawsuit is a question of law for the trial court to decide. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874-875.) The trial court must determine “whether, on the basis of the facts known to the defendant [in the malicious prosecution suit], the institution of the prior action was legally tenable. The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted.... [I]f the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail.” (Id. at p. 878.)
The probable cause standard is lenient: “‘Probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit--that is, those which lack probable cause--are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.’ [Citations.]” (Jarrow Formulas, supra, 31 Cal.4th at p. 743, fn. 13.)
Here, the Plaintiffs failed to demonstrate the UCL action was one all reasonable lawyers would agree totally lacked merit. (Jarrow Formulas, supra, 31 Cal.4th at p. 743, fn. 13.) The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) “Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647.) “An act can be alleged to violate any or all of the three prongs of the UCL—unlawful, unfair, or fraudulent.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.)
Optima’s complaint alleged the Plaintiffs were engaged in an unfair, unlawful, and fraudulent business practice of filing and maintaining numerous TCPA small claims actions based on manufactured or manipulated documents. The trial court correctly observed the UCL claim was tenable if the faxes were fabricated and Pistone’s declaration provided objective facts demonstrating he reasonably suspected they were. Pistone explained there was a “cottage industry” of suing on TCPA violations in small claims court. Pistone understood Optima had ceased sending prohibited faxes, prohibited lead-generating firms with which it contracted from sending out unsolicited faxes, and ceased doing business with those that did. But Optima kept getting sued, by the same people, including the Plaintiffs, who were sharing information on a Web site. Pistone observed it was impossible to tell from the faxes, where they were generated or where they were sent. He contacted the Plaintiffs and asked them for information including the fax numbers at which they were receiving the unsolicited faxes and copies of the faxes showing the phone numbers and time and date stamps, but they refused to provide him with the information requested. Under the circumstances, we cannot say no reasonable attorney would have reasonably believed Optima had a tenable claim.
The Plaintiffs’ failure to address the malice element is fatal as well. Even if the underlying action was not objectively tenable, an inference of malice from the absence of probable cause to file suit is not automatic. (5 Witkin, supra, § 511 at p. 761.) Pistone’s declaration indicates he filed the UCL action only after he undertook an investigation and came to the conclusion there might be fabricated faxes underlying some of the TCPA small claims actions.
2. Abuse of Process Cause of Action
The Plaintiffs similarly failed to demonstrate a probability of prevailing on their abuse of process cause of action. In Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40, this court explained: “Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is not abuse of process. [Citation.] [¶] Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments... or improper use of discovery....” (See also Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169-1170 (Oren Royal Oaks Venture).)
The Plaintiffs provided no evidence of misuse of the tools of litigation by P&W in the UCL action. The underlying action was dismissed on the Plaintiffs’ successful special motion to strike—no discovery or other steps were taken by P&W to prosecute the UCL action.
The Plaintiffs complain the proper focus of the abuse of process cause of action should be on the TCPA small claims court actions, not the UCL action. They assert P&W’s motive in filing the UCL action was to have a means for obtaining otherwise prohibited discovery for use in defending Optima in TCPA small claims actions. Therefore, filing the UCL action constituted an abuse of process as it relates to the small claims court actions. But as already discussed above, the only evidence in support of the “improper purpose” theory was the 2007 Pistone declaration offered in their doomed motion for reconsideration. There was no admissible evidence offered in opposition to the special motion to strike. Furthermore, there was no showing as to any particular small claims court action impacted by the UCL action—at most the rejected evidence suggests P&W hoped through discovery in the UCL action to obtain evidence useful to defend Optima in future small claims actions filed by the Plaintiffs. But even if that goal was improper, as already noted, maintaining an action even for an improper purpose does not alone constitute abuse of process. (Oren Royal Oaks Venture, supra, 42 Cal.3d at p. 1169.)
The Plaintiffs also argue P&W committed an abuse of process by making an improper request for relief in the UCL complaint. Specifically, they assert the UCL complaint improperly requested a declaration the Plaintiffs were vexatious litigants. Because the Plaintiffs offer no legal analysis as to how including an allegedly meritless prayer for relief constitutes an abuse of process, we decline to consider the point further. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.