Opinion
NOT TO BE PUBLISHED
San Francisco Super. Ct. No. CGC-08-476191
Kline, P.J.
Defendant and appellant Jerome J. Ghigliotti, Jr. appeals from an order of the trial court denying his special motion to strike under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) He contends plaintiffs and respondents, Hua Cao Xu and Xue Ying Zhong, failed to satisfy their burden of demonstrating a probability of prevailing on the merits of their malicious prosecution action against him, because they failed to make a prima facie showing both that the underlying unlawful detainer actions were either initiated or continued without probable cause and that he acted with malice. We disagree and shall affirm the order.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
Plaintiffs’ malicious prosecution claims against defendant, an attorney, arise out of his multiple attempts, on behalf of his then-client and codefendant in the malicious prosecution action, Thomas Wang, to evict plaintiffs from a basement unit in Wang’s home.
Plaintiffs were tenants in property owned by Wang in San Francisco. On August 1, 2007, defendants served plaintiffs with notices of violations of tenancy obligations, threatening eviction. On September 19, 2007, defendants brought an unlawful detainer action against plaintiffs (Wang v. Zhong, San Francisco Superior Court No. CUD-07-623371.) Defendant Wang verified the unlawful detainer complaint under penalty of perjury, stating, among other things: the current rent was $946.49; the monthly rent had been raised in January and March 2003, and each March thereafter from 2004 to 2007; plaintiffs had violated the rental agreement by habitually late rental payments, creating excessive noise, and refusing to pay utilities. The unlawful detainer complaint also stated that the tenancy was subject to the San Francisco Rent Stabilization and Arbitration Ordinance (the Ordinance). A copy of the written lease was attached to the complaint. It stated the rent was $870, stated that the rental included “Utilities,” identified as “water, electricity, and garbage.”
Plaintiffs demurred to the unlawful detainer complaint. On November 14, 2007, the court sustained the demurrer in part and overruled it in part. The court sustained the demurrer without leave to amend as to a defective notice to pay or quit, a defective notice to cure or quit based on habitual late payments, and a defective notice to cure or quit with regards to payment of utilities. The court overruled the demurrer as to the notice to cure or quit regarding the validity of the three-day notice relating to noise under Code of Civil Procedure section 1161.
On October 27, 2008, defendants appealed to the appellate division of the Superior Court. On December 7, 2007, plaintiffs moved for summary judgment in the first unlawful detainer action, but the court, on January 9, 2008, ordered the motion stayed pending an appeal by defendant Wang of the demurrer ruling. On January 25, 2008, defendants voluntarily dismissed the first unlawful detainer action without prejudice.
Meanwhile, on November 30, 2007, defendants filed a second unlawful detainer action against plaintiffs. (Wang v. Zhong, San Francisco Superior Court No. CUD-07-624237.) The unlawful detainer complaint was again verified by defendant Wang under penalty of perjury and again contained a copy of the same lease agreement he had attached to the first unlawful detainer complaint. The complaint alleged: violations of conditions and covenants by habitual late payment of the monthly rent, unlawful sub-tenancy, excessive noise, refusal to pay utilities, refusal to sign a new lease under materially the same terms on two occasions, and smoking in violation of house rules. The lease agreement attached to the complaint stated that “Utilities” “[i]ncludes water, electricity, and garbage” and did not contain any prohibitions against sub-letting or smoking.
Plaintiffs’ demurrer to the verified unlawful detainer complaint was overruled on January 24, 2008. (The parties have not included copies of either of the two demurrers in the record.)
On January 8, 2008, discovery responses prepared by appellant, and verified by Wang, produced the lease as the only written agreement between the parties and admitted that there were no documents (other than the lease and Wang’s “business journal” consisting of Wang’s own calculations of rent due, paid, and owing) to support the claims that the current rent was $946.49; that the monthly rent had been raised in January and March 2003, and each March thereafter from 2004 to 2007; or that plaintiffs had violated the rental agreement by habitually late rental payments. The discovery responses also admitted that there were no documents supporting the claim that Wang had submitted to plaintiffs a new rental agreement on materially the same terms, or that plaintiffs had breached any written agreements to pay utilities or refrain from smoking.
On February 7 and 11, 2008, the tenants deposed defendant Wang. During the deposition, Wang contradicted several of his previously verified factual allegations about the tenancy. Wang admitted he had never raised plaintiffs’ monthly rent by written notice beyond $870 to the level alleged in the three-day notices and complaints and had never raised it in the manner required by the Ordinance. He admitted the rental agreement did not contain the “covenants” he had accused plaintiffs of breaching. Rather, he had promulgated those “rules” sometime thereafter, he did not do so in the manner required by the Ordinance and other applicable law, and plaintiffs never consented to those new “covenants” or to changes in the monthly rent proposed by Wang. He admitted the rental agreement made the landlord responsible for paying utilities. It did not contain a ban on smoking in the rental premises. Wang also admitted the tenants had never refused a written request to sign a new rental agreement on the same terms as the original.
After the deposition on February 11, 2008, plaintiffs’ counsel told appellant that, based on the evidence in the case and Wang’s deposition testimony, Wang should immediately dismiss the second unlawful detainer action as it lacked probable cause and that appellant and Wang would be liable for malicious prosecution by continuing to prosecute the action after becoming aware that it lacked probable cause. On February 14, 2008, plaintiffs’ counsel sent appellant a letter detailing the foregoing and the respects in which Wang’s deposition testimony contradicted allegations of the verified unlawful detainer complaint and lacked probable cause. Appellant dismissed the second unlawful detainer complaint without prejudice on Monday, February 25, 2008.
On June 10, 2008, plaintiffs filed an action for malicious prosecution against both appellant and co-defendant Wang, arising from each of the two underlying unlawful detainer actions. Appellant answered the complaint on July 21, 2008 and on August 11, 2008 filed a special motion to strike under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.)
After a hearing held September 9, 2008, the trial court denied appellant’s anti-SLAPP motion by order filed October 1, 2008. Appellant filed a timely appeal of the denial of the anti-SLAPP motion. (Code Civ. Proc., § 425.16, subd. (i).)
Codefendant Wang neither joined in the anti-SLAPP motion, appeared at the hearing or appealed from the denial of the motion. We have taken judicial notice of the fact that, on April 8, 2009, Wang filed a cross-complaint for damages and equitable indemnity against appellant, alleging negligence, breach of contract, and breach of fiduciary duty by appellant in connection with appellant’s representation of him in the unlawful detainer actions. The cross-complaint seeks equitable indemnity, contribution, and a declaration that appellant was the legal cause for any damages sustained by plaintiffs.
DISCUSSION
I. Applicable Legal Principles
“Section 425.16, subdivision (b)(1), provides that a cause of action arising from a constitutionally protected right of free speech is subject to a special motion to strike unless the plaintiff establishes the probability he or she will prevail on the claim. (§425.16, subd. (b)(1).) In ruling on such a motion, the trial court must first determine whether the defendant has met the burden to show the activity underlying the cause of action is constitutionally protected. [Citation.] If the defendant establishes this, the burden shifts to the plaintiff to show a probability of prevailing on the cause of action. [Citation.] It is settled that a claim for malicious prosecution is subject to a special motion to strike under section 425.16. (Jarrow Formulas, Inc. v. LaMarche [(2003)] 31 Cal.4th 728, 735; [citation].)” (Ross v. Kish (2006) 145 Cal.App.4th 188, 196-197.) Consequently, the only issue presented on this appeal is whether plaintiffs can demonstrate a probability of prevailing on their malicious prosecution action at trial.
To satisfy their burden of showing a probability of prevailing on their malicious prosecution action, plaintiffs here “ ‘must “state[] and substantiate[] a legally sufficient claim.” [Citation.] “Put another way, the plaintiff[s] ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff[s] is credited.’ ” [Citation.]’ (Jarrow Formulas, Inc. v. LaMarche[, supra, ] 31 Cal.4th 728, 741, fn. omitted....)” (Zamos v. Stroud (2004)32 Cal.4th 958, 965 (Zamos).) A prima facie case is that which, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs’ favor. (Ibid.) Plaintiffs must establish a reasonable probability of prevailing on the merits with admissible evidence. (Kreeger v. Wanland (2006) 141 Cal.App.4th 826, 831.) “Whether plaintiffs have established a prima facie case is a question of law. [Citations.]” (Zamos, at p. 965.)
“In ruling on a special motion to strike, ‘the court does not weigh the evidence or make credibility determinations. [Citations.]’ [Citation.] Rather, once the plaintiff makes a prima facie showing of facts which would support a judgment in his or her favor, the court will ‘consider[] the defendant’s opposing evidence, but only to determine if it defeats the plaintiff’s showing as a matter of law. [Citation.]’ [Citation.] The process the court uses in determining whether the plaintiff has shown a probability of prevailing on the merits is similar to the process used in determining motions for nonsuit, directed verdict or summary judgment. [Citations.]” (Ross v. Kish, supra, 145 Cal.App.4th at p. 197; see also Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 105-106 (Mann).)
Where a plaintiff “can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be subject to the anti-SLAPP procedure. [¶] Stated differently, the anti-SLAPP procedure may not be used like a motion to strike under section 436, eliminating those parts of a cause of action that a plaintiff cannot substantiate. Rather, once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. Thus, a court need not engage in the time-consuming task of determining whether the plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action so as to leave only those portions it has determined have merit.” (Mann, supra, 120 Cal.App.4th at p. 106.)
“We review de novo a trial court’s ruling on a motion to strike under section 425.16 by ‘ “conducting an independent review of the entire record. [Citations.]” ’ [Citations.]” (Ross v. Kish, supra, 145 Cal.App.4th at p. 197.)
In order for plaintiffs to prove malicious prosecution, they must show a termination of the underlying lawsuit in their favor, lack of probable cause in bringing or continuing to prosecute the lawsuit, and malice. (Zamos v. Stroud, supra, 32 Cal.4th at pp. 965, 970; accord e.g., Ross v. Kish, supra, 145 Cal.App.4th at pp. 191-192.)
The parties do not dispute that plaintiffs received a favorable termination of the underlying unlawful detainer actions.
“Where several claims are advanced in the underlying action[s], each must be based on probable cause. ‘We see no reason for permitting plaintiffs and cross-complainants [in the underlying action] to pursue shotgun tactics by proceeding on counts and theories which they know or should know to be groundless.’ (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57.)” (5 Witkin, Summary of Cal. Law (10th ed. 2005) § 508, p. 749, italics added; accord Crowley v. Katleman (1994) 8 Cal.4th 666, 678-679.)
Although the tort of malicious prosecution is “disfavored” (see Zamos, supra, 32 Cal.4th at p. 966), the Supreme Court has cautioned in the context of an anti-SLAPP motion, “that this ‘convenient phrase,’ i.e., the characterization of malicious prosecution as a disfavored cause of action, ‘should not be employed to defeat a legitimate cause of action’ or to ‘invent[] new limitations on the substantive right, which are without support in principle or authority.’ [Citations.]” (Ibid.)
II. Probable Cause
Prima facie showing unlawful detainers lacked probable cause
Appellant contends that plaintiffs failed to make a prima facie showing of facts sufficient to support a finding in its malicious prosecution action that appellant lacked probable cause in bringing or continuing to prosecute the unlawful detainer actions on behalf of Wang.
“[T]he probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, 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. [Citation.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 (Sheldon Appel); accord Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817 (Wilson).) Hence, “probable cause exists if ‘any reasonable attorney would have thought the claim tenable.’ (Sheldon Appel, supra, at p. 886.) This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims.’ (Id. at p. 885.) Attorneys and litigants... ‘ “have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win....” ’ (Ibid., quoting In re Marriage of Flaherty [(1982) 31 Cal.3d 637,] 650.) Only those actions that ‘ “any reasonable attorney would agree [are] totally and completely without merit” ’ may form the basis for a malicious prosecution suit. (Ibid.)” (Wilson, supra, 28 Cal.4th at p. 817; see id at p. 824.) Under the objective standard, whether or not an attorney conducted a “reasonable investigation and industrious search of legal authority” are legally irrelevant to the determination of probable cause, but may be relevant to the malice determination. (Sheldon Appel Co., supra, 47 Cal.3d at pp. 882-883.)
Here, in evaluating whether plaintiffs have stated a prima facie case of malicious prosecution in the context of an anti-SLAPP motion, we view the facts as to what appellant knew and when he knew them in the light most favorable to plaintiffs. We consider appellant’s opposing evidence only to determine whether it defeats plaintiffs’ showing as a matter of law. (Ross v. Kish, supra, 145 Cal.App.4th at p. 197.)
Plaintiffs presented evidence below that the first and second unlawful detainer actions contained claims that were not supported by probable cause:
Specifically, directly contrary to the allegations of both verified unlawful detainer complaints and the notices to quit, the lease agreement included utilities in the monthly rental, thus squarely placing the responsibility for payment of utilities upon Wang, not plaintiff tenants. Appellant’s claim that the lease “does not clearly place the [utility payment] obligations on the landlord” is meritless. A reasonable reading of the lease establishes that “Utilities,” as defined therein, were included in the rent and therefore the responsibility of the landlord, not the tenants. The lease was attached to the unlawful detainer complaints verified by Wang, which appellant signed.
Also contrary to the allegations of the second verified unlawful detainer complaint, the lease contained no covenants or conditions prohibiting subleasing or smoking on the premises. By at least January 8, 2008, when appellant prepared and served Wang’s discovery responses, appellant surely knew that the lease was the only written agreement between the parties. He also must have known there were no other documents to support Wang’s claims that: plaintiffs had breached lease covenants regarding utility payments, smoking, and subleasing; the current rent was $946.49; the monthly rent had been raised in January and March 2003, and each March thereafter from 2004 to 2007; and Wang had submitted to plaintiffs a new rental agreement on materially the same terms, or that plaintiffs had violated the rental agreement by being habitually late with rental payments and refusing to pay utilities.
Absent written agreements, the attempt to increase rent would have violated the Ordinance. (Ordinance, ch. 37.9 (a)(5).) Moreover, Civil Code section 827 required that any notices of changes in the terms of the tenancy must be properly served in writing and section 12.20 of the Rules and Regulations of the Ordinance would have barred Wang from evicting plaintiffs based on plaintiffs’ noncompliance with unilaterally imposed changes in the terms of their tenancy. (City and County of San Francisco Residential Rent Stabilization and Arbitration Board, Rules and Regulations (Amended: Aug. 4, 2009) Part XII, pp. 7-8.)
Consequently, plaintiffs presented admissible evidence that at least by January 8, 2008, when appellant responded to plaintiffs’ discovery requests, many of the claims upon which the two unlawful detainers were initiated and pursued were not legally tenable, under the facts known to appellant.
“[P]robable cause to bring an [underlying] action depends on the facts known to the litigant or attorney at the time the action is brought. (Sheldon Appel, supra, 47 Cal.3d at pp. 880-884.)” (Wilson, supra, 28 Cal.4th at p. 822, fn. 6.) Moreover, as we have observed, “[a]n attorney who commences a lawsuit properly (with ‘probable cause’), but continues to prosecute it after learning it is not supported by probable cause is subject to malicious prosecution liability for the damages incurred from the time the attorney reasonably should have caused a dismissal of the action or withdrawn as counsel of record in the lawsuit. [Citations.]” Vapnek, et al. Cal. Practice Guide: Professional Responsibility (The Rutter Group 2009) ¶ 6:432.5, pp. 6-95 to 6-96, citing Zamos, supra, 32 Cal.4th 958, 969-970 and Rest.2d Torts § 674, comment c.)
Appellant asserts that he was entitled to rely on the information provided by his client and that the superior court’s overruling of the demurrers established probable cause for the unlawful detainers as a matter of law. He is wrong on both counts.
Reliance on client
Appellant contends that probable cause for the unlawful detainer actions was established where the actions were based on complaints that Wang verified under penalty of perjury. Appellant relies upon Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 625-627 (Swat-Fame), disapproved on other grounds in Zamos, supra, 32 Cal.4th at pp. 960, 973, for the proposition that an attorney is entitled to rely upon information provided by the client and that probable cause is evaluated on the bases of that information. (See Swat-Fame, at p. 618.)
In Swat-Fame, supra, 101 Cal.App.4th 613 , a malicious prosecution action by an employer against both the plaintiff-employee and her attorneys in an underlying employment-related action, the undisputed facts established the underlying fraud claim was based on information the employee-client supplied to her attorneys. (Id. at p. 625.) At her deposition, the client made several significant admissions undermining her claims. (Id. at p. 620.) On appeal from the trial court’s grant of summary judgment in favor of the attorneys and the client-employee in the malicious prosecution action, the appellate court affirmed as to the attorneys. The Court of Appeal held that probable cause had been established for the underlying action because, “it is undisputed that the allegations in the complaint accurately reflected the facts as given to the lawyers by [the client] and that she never told them those facts were incorrect. The information provided to the lawyers, if true, was sufficient to state a cause of action for fraudulent inducement of employment.” (Id. at p. 625, fn. omitted.)
The Swat-Fame court also held that where probable cause existed at the time of filing, a lawyer had no liability for continuing to pursue the action, even where the attorney later became aware of facts negating the claim. (Swat-Fame, 101 Cal.App.4that pp. 627-629.) The California Supreme Court has expressly disapproved Swat-Fame on this latter point. (Zamos, supra, 32 Cal.4th at pp. 960, 973.) In Zamos, the court held that, despite having probable cause for initiating an action based on the client’s representations,“an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” (Id. at p. 970.) “ ‘Holding attorneys liable for the damages a party incurs as a result of the attorneys prosecuting civil claims after they learn the claims have no merit also will encourage voluntary dismissals of meritless claims at the earliest stage possible.” (Id. at p. 969.) As a respected authority states: “Usually, the client provides information upon which the attorney relies in determining whether probable cause exists for initiating a proceeding. The rule is that the attorney may rely on those statements as a basis for exercising judgment and providing advice, unless the client's representations are known to be false. In other words, probable cause is measured by the facts related to the lawyer by the client, assuming them to be true, and those learned through investigation.” (1 Mallen & Smith, Legal Malpractice (Thomson Reuters/West 2009 ed.) § 6.19, pp. 813-814, italics added, fns. omitted.)
The Supreme Court noted that “[c]ounsel who receives interrogatory answers appearing to present a complete defense might act reasonably by going forward with the defendant’s deposition in light of the possibility that the defense will, on testimonial examination, prove less than solid. The reasonableness of counsel’s persistence is, of course, a question of law to be decided on a case-by-case basis, and we have no occasion here to formulate more detailed rules.” (Zamos, supra, 32 Cal.4that p. 970, fn. 9.)
“Because the statements made to an attorney often are the essential facts on which probable cause is based, they are not hearsay. The prevailing rule is that the attorney need not verify nor investigate the truthfulness of the client's representations before recommending or pursuing action. The rationale is that the advocate's role does not require that the lawyer act as a trier of fact in deciding the client's credibility. Ethical requirements mandate that an attorney not only refrain from asserting personal opinions concerning the justness of the client's cause, but also the lawyer should resolve any reasonable doubt in favor of the client. That rule is not altered merely because the client's adversary disputes the representations, or even if the attorney doubts the client's credibility, if that issue is genuinely in doubt. An attorney may continue to represent the client in a course of conduct, even contrary to what the attorney recommended, if the action is not illegal or frivolous.” (1 Mallen & Smith, Legal Malpractice, supra, § 6.19, pp. 814-815, italics added, fns. omitted.)
Consequently, where the attorney becomes aware of facts that any reasonable attorney would conclude negate probable cause, the attorney can no longer avoid liability for malicious prosecution by relying upon the facts as related by the client. That Wang verified the unlawful detainer complaints does not supply probable cause, where the facts alleged in the unlawful detainer complaint were contrary to the lease terms and where Wang’s January 8, 2008, discovery responses, prepared by appellant, admitted there were no other later lease agreements or other documents supporting many of his claims.
Overruling of demurrers is not dispositive
Appellant contends that the trial court’s overruling in part of plaintiffs’ demurrer to the first unlawful detainer and overruling of the demurrer to the second unlawful detainer establishes probable cause for the unlawful detainer actions. We disagree.
In general, denial of a defense motion for summary judgment in the underlying case on the grounds that a triable issue exists establishes probable cause for the underlying action. (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383-384 (Roberts) [trial court’s conclusion that issues of material fact remain for trial “necessarily impl[ies] that the judge finds at least some merit in the claim,” unless that ruling was procured by “materially false facts.”].) However, “[d]enial of a summary judgment motion on procedural or technical grounds, rather than for existence of triable issues of material fact, says nothing regarding the potential merit of the action and hence does not establish probable cause for its initiation.” (Wilson, supra, 28 Cal.4th, at pp. 816, 819, 823.)
Swat-Fame, supra, 101 Cal.App.4th 613, relied upon by appellant, does not suggest otherwise. There, the appellate court concluded: “Because the allegations in the complaint were true to the best of the lawyers’ knowledge at the time the complaint was filed, and because the trial court overruled [the employer’s] demurrer to the fraud claim, the lawyers necessarily had probable cause to bring the claim for fraud. (See Roberts[, supra, ]76 Cal.App.4th 375, 384 [“denial of defendant’s summary judgment in an earlier case normally establishes there was probable cause to sue, thus barring a later malicious prosecution suit’].)” (Swat-Fame at p. 626.) However, in Swat-Fame, the court clearly based its overruling of the demurrer on its assessment of probable cause for the complaint. “[I]n overruling [the employer’s] demurrer to the first amended complaint, the trial court concluded that a cause of action for fraud was stated based on the allegedly false statement that [the employer] was a $100 million company.” (Id. at p. 625.)
Appellant argues that in overruling the two demurrers to the unlawful detainer complaints, the courts in each of the underlying cases evaluated whether the facts alleged in the verified complaints stated a legally tenable claim for unlawful detainer. We disagree.
First, it is clear that the court overruled in part the demurrer to the first complaint challenging the notice to cure or quit regarding the validity of the three-day notice based on excessive noise under Code of Civil Procedure section 1161. Given its ruling, the demurrer appears to have been brought on technical grounds and the court’s ruling was expressly on technical grounds going to the validity of the three-day notice. It was not a determination that probable cause supported the action.
The court stated no grounds for overruling the demurrer to the second unlawful detainer action. The parties have not provided the actual demurrer in the record and appellant has not shown that the demurrer was overruled because the court found the complaint was supported by probable cause. Thus, there is no indication on the record before us that the trial court overruled the demurrer based on its assessment of the legal tenability of the complaint, rather than upon its rejection of arguments relating to technical defects in the notices or other challenges not involving the legal tenability of the underlying claim. Moreover, had the court found the allegations of the verified complaint supported probable cause, despite the contrary language of the attached lease agreement, that probable cause would have evaporated by the time appellant served his discovery responses, as it would have become clear by then that several of the allegations forming the basis of for the complaint were untrue. (See Zamos, supra, 32 Cal.4th at pp. 960, 973.)
Lack of probable cause for all severable claims not required
Appellant contends that “only the cause of action as a whole, not alternative allegations of supporting misconduct, is to be evaluated for the existence of probable cause.” He argues that the first and second unlawful detainer each presented a single cause of action — unlawful detainer. Consequently, he reasons, plaintiffs may not pursue a malicious prosecution action against him based on the lack of probable cause for some of the “alternative factual bases” alleged, so long as probable cause supported maintenance of the unlawful detainer cause of action as a whole on any ground. The law does not support appellant’s contention. (See e.g., Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup); Kreeger v. Wanland, supra, 141 Cal.App.4th 826, 834-835.)
As we have previously observed, “[w]here several claims are advanced in the underlying action[s], each must be based on probable cause.” (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) § 508, p. 749, italics added; accord, Crowley v. Katleman, supra, 8 Cal.4th 666, 678-679; Bertero v. National General Corp., supra, 13 Cal.3d 43, 57. Consequently, “[a] malicious prosecution action can be maintained where only one of several claims in the prior action lacked probable cause. [Citations.]” (Vapnek, et al. Cal. Practice Guide: Professional Responsibility, supra, ¶ 6:432.1, p. 6-95.) In Kreeger v. Wanland, supra, 141 Cal.App.4th 826, the Court of Appeal rejected an argument, similar to that made by appellant. There, the proponents of an anti-SLAPP motion in a malicious prosecution action argued that the claims they had asserted in an underlying malicious prosecution action that opposing parties claimed had been brought without probable cause were not separate causes of action, but factual allegations and that they were merely “ ‘boilerplate provisions on the Judicial Council form created to make assertions of fact that if proven, will support liability for the cause of action stated....” (Kreeger v. Wanland, supra, 141 Cal.App.4th at p. 834.)
The court, nevertheless, affirmed the denial of the special motion to strike, because the alternate theories had never been raised in the malicious prosecution action as lacking probable cause. (Kreeger v. Wanland, supra, 141 Cal.App.4th at pp. 835-836.)
The appellate court disagreed, reasoning that the factual allegations appearing in the form section of the Judicial Council complaint did “not make them any less actionable if asserted with malice and without probable cause. Those allegations need not state a separate cause of action in and of themselves. A claim of malicious prosecution may be based on a single ground for liability alleged in the complaint that lacks probable cause. (Crowley v. Katleman[, supra, ] 8 Cal.4th 666, 679, first italics added.) Even a single cause of action that states several theories of liability will force the defendant to negate each theory to escape liability.” (Kreeger v. Wanland, supra, 141 Cal.App.4th at p. 834.)
The unlawful detainer actions pursued below each had several allegations against plaintiffs — against each of which they would be required to defend. All claims brought and pursued must be supported by probable cause and the lack of probable cause for any one or more of those claims supports an action for malicious prosecution.
We conclude that plaintiffs made a prima facie showing that several of the claims underlying the unlawful detainer actions were brought and/or maintained without probable cause. Appellant either knew or should have known of the significant deficiency with respect to the utilities payment claim at the time appellant filed the initial unlawful detainer and either knew or should have known of the several significant deficiencies in the claims of the second action by the time he prepared and served Wang’s discovery responses.
III. Malice
Appellant contends that plaintiffs offered no evidence of malice on his part in either filing or pursuing the actions. To the contrary, plaintiffs presented evidence demonstrating a probability that they would prevail on the element of malicious intent.
“The malice element of the malicious prosecution tort goes to the defendant’s subjective intent in initiating the prior action. [Citation.] For purposes of a malicious prosecution claim, [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.’ [Citations.] ‘Suits with the hallmark of an improper purpose’ include, but are not necessarily limited to, ‘those in which: “ ‘... (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.’ ” ’ ” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407, italics added (Sycamore).)
“Malice ‘may range anywhere from open hostility to indifference.’ ” (Soukup, supra, 39 Cal.4th at p. 292; accord Sycamore, supra, 157 Cal.App.4th at p. 1409.) “[T]he mere absence of probable cause, without more, is not sufficient to demonstrate malice....” (Sycamore, supra, 157 Cal.App.4th 1409; accord Soukup, at p.292.) However, “ ‘[m]alice may also be inferred from the facts establishing lack of probable cause.’ [Citation.]” (Soukup, supra, 39 Cal.4th at p. 292, italics added; accord Sycamore, at p. 1409.) “[T]he extent of a defendant attorney’s investigation and research may be relevant to the further question of whether or not the attorney acted with malice.” (Sheldon Appel, supra, 47 Cal.3d at p. 883; accord, Sycamore at p. 1409.)
Among the factors tending to show an attorney harbored malice is counsel’s continuing to prosecute the action on the client’s behalf, “despite being aware that there was no basis for most of [the client’s] claims....” (Sycamore, supra, 157 Cal.App.4th at p. 1408, italics added.) In Sycamore, the court found “abundant evidence” that the attorneys continued to prosecute the action for their client even after they prepared the client’s interrogatory responses that demonstrated the client had no compensable claims under most of the causes of action alleged and that there was no sufficient factual basis for the damages the client asserted. From the evidence, “one could infer that the [attorneys] were at best indifferent as to whether the claims alleged on [the client’s] behalf had any basis in fact.” (Ibid.) The same can be said here. Plaintiffs presented evidence that appellant continued to prosecute the action even after preparing the discovery responses that demonstrated that, other than the lease (which contradicted many of the claims of the unlawful detainer complaint), there were no written agreements supporting Wang’s claims that plaintiffs had breached lease covenants, including their obligation to pay utilities, to comply with a smoking prohibition, to refrain from subleasing, and to pay increased rent. Nor was there support for the claim that plaintiffs had refused to enter a lease on materially the same terms. One could infer from this evidence that appellant was, “at best indifferent as to whether the claims alleged on [Wang’s] behalf had any basis in fact.” (Ibid.)
Appellant argues that malice cannot be inferred here, as he dismissed the action on February 25, 2008, within six work days of receiving the February 14, 2008 letter from opposing counsel setting forth the claims that had been shown to lack probable cause based on Wang’s deposition and urging dismissal. (In fact, appellant continued to pursue the action for two weeks after the termination of the February 11th deposition.) We must view the facts in the light favorable to the party opposing the anti-SLAPP motion. The record supports the conclusion that appellant knew or should have known the action lacked probable cause from at least the date he prepared the discovery responses for Wang, sometime on or before January 8, 2008, when Wang verified them. Thus, he continued to pursue the action for nearly seven weeks thereafter. Where the attorney “knew the relevant facts and did not take immediate steps to dismiss [the client’s] unmeritorious claims, one could infer that the continued prosecution of those claims was motivated by a malicious intent.” (Sycamore, supra, 157 Cal.App.4th at p. 1409, italics added [finding plaintiffs opposing an anti-SLAPP motion demonstrated sufficient malice by attorneys who had substituted into the case where the claims remained active for approximately one month after the attorneys formally associated into the case.) Zamos, supra, 32 Cal.4th 958,counsels that “an attorney can avoid liability by promptly causing the dismissal of, or withdrawing as attorney in, the lawsuit.” (Id. at p. 970, italics added.)
Nor does appellant’s declaration, averring that he believed the claims were supported by probable cause, that he worked closely with Wang to verify the claims, and that he harbored no malice establish, as a matter of law, that plaintiffs cannot prevail on these elements of its malicious prosecution action. (See Sycamore, supra, 157 Cal.App.4th at p. 1410.)
In the circumstances presented, we conclude plaintiffs have presented a sufficient prima facie case that the facts underlying the finding of a lack of probable cause also support a finding of malice. Further support for our finding that plaintiffs have proffered adequate evidence of malice is found in evidence submitted to the trial court that immediately after dismissing the action, appellant served new notices to quit upon plaintiffs, as described below.
New notices to quit
The court properly considered, as further evidence of malice, evidence that three days after the dismissal of the second unlawful detainer action, appellant served plaintiffs with new notices to quit. Having previously asserted that the tenancy was subject to the Ordinance, these new notices cited section 37.9, subdivision (b), of the Ordinance, which provides an exception to the “just cause” requirement for eviction where “[a] landlord... resides in the same rental unit with his or her tenant....” However, it was clear from Wang’s previous deposition that plaintiffs lived on the first floor of Wang’s home and did not share the same “rental unit.” Appellant objected to this evidence, but failed to seek or obtain a ruling on his objections, thus waiving them. (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710.) The court considered the notices as relevant to the question of malice, and we agree. Appellant cites no authority for his claim that conduct immediately following the dismissal of a lawsuit is not relevant to the state of mind with which the prior action was pursued. As did the trial court, we believe such evidence is relevant and does provide further evidence that appellant acted with malice.
Plaintiffs also rely on additional evidence purporting to show malice: Appellant’s request for information from the Department of Motor Vehicles and Wang’s cross-complaint against appellant.
Department of Motor Vehicles (DMV) notice
Plaintiffs point to appellant’s conduct in requesting information from the DMV after the underlying cases were dismissed. Plaintiffs allege appellant falsely represented in the request that the second unlawful detainer action (which had already been dismissed) justified his request for appellant Xu’s confidential DMV records. Although we previously have taken judicial notice of the DMV instructions for completing the attorney request, after review of the record, it is apparent that the trial court only had before it a copy of the DMV notice that plaintiffs’ declared they had received. The notice stated that appellant had sought such information. Appellant objected to this notice and accompanying declarations by plaintiffs as being of no relevance to appellant’s state of mind, inadmissible hearsay, and lacking in foundation. He restates those objections on this appeal. At the anti-SLAPP motion hearing, the trial court observed the “the DMV [notice] can’t be evidence” and refused to consider it as establishing anything. Although the court did not use the magic words “objection sustained,” it is clear the court effectively sustained the objection to this evidence. Our taking of judicial notice of the instructions for completing the form request (which instructions were not before the court), does not transform either the instructions or the notice to plaintiffs into admissible evidence. We therefore do not consider them as evidence of malice. (See Kreeger v. Wanland, supra, 141 Cal.App.4th at p. 831 [plaintiff must “establish, with admissible evidence, a reasonable probability of prevailing on the merits” of the malicious prosecution action].)
Section 1808.22 of the Vehicle Code allows an attorney to obtain confidential motor vehicle and driver information “when the attorney states, under penalty of perjury, that the motor vehicle or vessel registered owner or driver residential address information is necessary in order to represent his or her client in a criminal or civil action which directly involves the use of the motor vehicle or vessel that is pending, is to be filed, or is being investigated....” (Italics added.)
Our determination not to consider these documents does not mean that they may not be admissible at trial of the malicious prosecution action upon proper authentication and foundation and we express no opinion as to that question.
Wang’s cross-complaint against appellant
We have taken judicial notice of Wang’s filing on April 8, 2009, of an unverified cross-complaint for damages and equitable indemnity against appellant. We do not take judicial notice of the truth of the allegations it contains, including, among other things, that appellant was the legal cause for any damages sustained by plaintiffs or its statement that appellant asked Wang to verify blank unlawful detainer pleadings and then filled in the blanks with erroneous information. Appellant contends that the complaint is inadmissible hearsay and moves that it be stricken. This evidence was not before the trial court at the time it ruled. That the cross-complaint was filed by Wang has little, if any, relevance to the question of malice by appellant. We have not considered it in our decision here.
CONCLUSION
Under these circumstances, plaintiffs have proffered sufficient evidence to support a finding that appellant pursued the unlawful detainer action without probable cause and that he did so with malice. Consequently, plaintiffs have demonstrated that their malicious prosecution claim against appellant has the “minimal merit” necessary to defeat appellant’s anti-SLAPP motion.
DISPOSTION
The order denying the special motion to strike is affirmed. Plaintiff-respondents are awarded their costs on appeal.
We concur: Haerle, J., Lambden, J.