but see Supreme Court Decision
1
Filed 3/26/01
CERTIFIED FOR PARTIAL PUBLICATION *
COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA
RAUL WILSON et al.,
Plaintiffs and Appellants,
v.
PARKER, COVERT & CHIDESTER
et al.,
Defendants and Respondents.
E025710
(Super.Ct.No. 326517)
O P I N I O N
RAUL WILSON et al.,
Plaintiffs and Appellants,
v.
MARK WILLIAMS,
Defendants and Respondents.
E025832
(Super.Ct.No. 326517)
RAUL WILSON et al.,
Plaintiffs and Appellants,
v.
CARL AXUP et al.,
Defendants and Respondents.
E026853
(Super.Ct.No. 326517 )
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for
publication with the exception of parts A and B.
2
APPEALS from the Superior Court of Riverside County. Joan F. Ettinger,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew for Plaintiffs and
Appellants.
Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc., Mark L. Kiefer and Laine E.
Hedwall for Defendants and Respondents Parker, Covert & Chidester, Spencer E. Covert
and Mark Williams. (E025710/E025832)
Reich, Adell, Crost & Cvitan, Paul Crost and Carlos R. Perez for Defendants and
Respondents Reich, Adell, Crost & Cvitan and Marianne Reinhold. (E025710)
Stream & Stream, Inc., David D. Werner and Jamie Wrage for Defendants and
Respondents Carl Axup and K. T. Bowers. (E026853)
SEE CONCURRING AND DISSENTING OPINION
In an action for damages for malicious prosecution, plaintiffs and appellants appeal
from judgments entered in favor of defendants and respondents, after the trial court
sustained defendants’ demurrers to plaintiffs’ complaint without leave to amend. We
affirm the judgments.
I. PROCEDURAL BACKGROUND
In July of 1996, protest demonstrations outside a public middle school resulted in
litigation. The school teachers and administrators who had been the targets of the
protests—David Kuzmich, Carl Axup, K. T. Bowers, Ellen Schwartz, Pamela Wilson and
Carole Castle (“Teachers”)—filed a joint petition for an injunction prohibiting harassment,
3
pursuant to Code of Civil Procedure section 527.6.1 (David Kuzmich, et al., v. Mexican
Political Association, et al., Riverside Superior Court case no. 283066.) The action
(“Teachers’ action”) sought temporary and permanent injunctive relief against the Mexican
Political Association (“MPA”) and five individuals, including Raul Wilson (“Wilson;”
collectively, the “Protesters”). The Teachers’ petition was subsequently amended to add
claims by four of the Teachers (Axup, Bowers, Castle, and Schwartz) for damages for
defamation and both intentional and negligent infliction of emotional distress.
The injunctive-relief claim in the Teachers’ action was tried in August of 1996.2
Thereafter, the trial court issued a permanent injunction in favor of five of the six Teachers
(Axup, Bowers, Castle, Kuzmich, and P. Wilson) and against the MPA, Wilson, and five
other individual Protesters. No ruling was made on the Teachers’ damage claims.
The MPA, Wilson, and most of the other enjoined Protesters appealed from the
order granting the injunction. (E019394/E020142.) In an opinion filed in May of 1998, we
reversed that order. As we explained, an injunction pursuant to section 527.6 is a
permanent injunction that may not be issued except after a plenary trial of all relevant
evidence. Instead, the trial court arbitrarily excluded all oral direct, redirect, and rebuttal
testimony. “We conclude[d] that, by excluding all oral testimony except cross-
examination, the trial court violated the requirement of section 527.6 to receive all relevant
testimony, abused its discretion under Evidence Code section 352, and deprived the
1
All references are to the Code of Civil Procedure unless otherwise specified.
2
To support some of the procedural recitations, we grant Plaintiffs’ request for
judicial notice of our opinion resolving an appeal arising out of the Teachers’ action,
Kuzmich v. Mexican Political Association, E019394/E020142, filed May 20, 1998.
4
defendants of their due-process right to a full and fair hearing of their defense to the
accusations against them. Therefore, the injunction granted at the conclusion of that
defective hearing was improperly issued . . . .”
Meanwhile, Wilson and the MPA, among others, arguing that the entire Teachers’
action was a SLAPP suit, brought a special motion to strike the Teachers’ complaint
pursuant to section 425.16, subdivision (b). The trial court denied that motion in January of
1997.3
The moving parties challenged that adverse ruling by petitioning this court for a writ
of mandate directing the trial court to grant the motion and dismiss the Teachers’ action.
(Martinez v. Superior Court, E020044.) In a written opinion issued in August of 1997, we
determined that the trial court should have dismissed the Teachers’ action as to at least
three defendants, including Wilson and the MPA.4 Accordingly, we held: “The petition for
writ of mandate is granted in part and denied in part. Let a peremptory writ of mandate
issue, directing the superior court to vacate its order denying petitioners’ motion under
section 425.16, and to enter a new order in conformity with the views expressed herein
after such further proceedings as it deems necessary.” Our remittitur in case no. E020044
was issued on November 4, 1997.
3
We grant the request of Axup and Bowers that we take judicial notice of the order
denying that motion.
4
To the extent relevant here, we found: “As for Wilson, there is no evidence that he
personally committed tortious conduct and he is entitled to a dismissal. Finally, we hold
that defendant Association cannot be held liable for the actions of certain of its members,
and it has no liability in tort for sponsoring a protest on an issue of public significance.”
5
The clerk of this court was never asked to issue a formal writ of mandate.
Nevertheless, on November 14, 1997, the trial court entered a minute order providing in
relevant part: “On the 1st Amended Petition for Injunction Prohibiting Harassment of
Kuzmich[, et al.,] Defendant[s]/Cross[-]Defendant[s] RAUL WILSON, JESSE HOLMES,
[and] MEXICAN POLITICAL ASSOCIATION Ordered dismissed. [¶] . . . [¶]
PREVIOUSLY DISMISSED DEFENDANTS WERE DISMISSED PURSUANT TO THE
OPINION OF THE COURT OF APPEAL. ATTORNEY JASON R. WALSH TO PREPARE
APPROPRIATE ORDER.”
For reasons that do not appear from the record, no formal order of dismissal was
submitted to the trial court by Walsh or anyone else until June of 1998. The order
dismissing Wilson and the MPA was ultimately signed and entered on June 15, 1998.
Less than one year later, in April of 1999, Wilson and the MPA (“Plaintiffs”) sued
the Teachers (Kuzmich, Axup, Bowers, Schwartz, P. Wilson, and Castle), together with the
law firms and attorneys for those parties: Parker, Covert & Chidester (“PC&C”), Spencer
Covert, and Mark Williams, who had represented all six Teachers in their action; and Reich,
Adell, Croft & Cvitan (“RAC&C”) and Marianne Reinhold, who had represented only the
four Teachers who had sued for damages as well as for injunctive relief. (Collectively, the
Teachers and their attorneys shall be referred to as the “Defendants.”) Alleged in four
causes of action, Plaintiffs’ complaint seeks damages on theories of malicious prosecution
(first cause of action), conspiracy (second cause of action), intentional infliction of
emotional distress (third cause of action), and negligence (fourth cause of action).
6
In four separate groups, most of the Defendants then demurred to the complaint:
PC&C and Covert; RAC&C and Reinhold; Williams; and Axup and Bowers. The trial court
sustained each of the four demurrers and dismissed the action as to those demurring
Defendants. Plaintiffs appealed.5 (E025710, E025832, & E026853.) We have
consolidated those appeals for decision.
II. ISSUES
In appealing from the orders of dismissal, Plaintiffs challenge only those portions of
the rulings sustaining the demurrers to the first cause of action, for malicious prosecution.
Malicious prosecutions actions are “disfavored.” (Leonardini v. Shell Oil Co.
(1989) 216 Cal.App.3d 547, 565- 566.) In fact, litigants “have the right to present issues
that are arguably correct, even if it is extremely unlikely they will win.” (In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650.)
To successfully state a cause of action for malicious prosecution, a plaintiff must
allege that the underlying action was initiated by or at the direction of the defendant, was
terminated in the plaintiff’s favor, was brought without probable cause, and was initiated
with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (hereafter
Sheldon Appel); Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) Upon
objection, the plaintiff must also be able to show that the complaint alleging those elements
was filed in a timely fashion.
5
Plaintiffs have also attempted to appeal from certain rulings in favor of Kuzmich,
Castle, and Schwartz. However, those appeals were dismissed due to the lack of appealable
orders or judgments. We denied the motion of those three parties to insert themselves into
this appeal by submitting an amicus curiae brief.
7
In opposing Defendants’ arguments that persuaded the trial court to sustain the
demurrer, Plaintiffs contend (1) that their cause of action is not barred by the statute of
limitations, (2) that they adequately pleaded a favorable termination reflecting on the merits
of the underlying action, and (3) that Defendants did not establish as a matter of law that
they had probable cause to bring the Teachers’ action.
III. ANALYSIS
A. The Malicious Prosecution Action Was Timely Because It Was Filed Within One
Year of the Entry of the Trial Court’s Order of Dismissal
An action for an injury “caused by the wrongful act or neglect of another” must be
brought within one year. (§ 340, subd. (3).) Actions for malicious prosecution are
governed by that one-year statute of limitations. (Gibbs v. Haight, Dickson, Brown &
Bonesteel (1986) 183 Cal.App.3d 716, 719; Scannell v. County of Riverside (1984) 152
Cal.App.3d 596, 615.) The parties disagree, not over the limitation period, but over the
issue of when that period began to run in the procedural circumstances of this case.
Defendants contend that the one-year limitations period began to run in November
of 1997, either when our remittitur was issued on November 4 or when the trial court
entered its minute order on November 14. Plaintiffs argue that the statute of limitations did
not begin to run until the formal order of dismissal was entered in June of 1998. Plaintiffs
are correct.
As noted above, “the plaintiff in a malicious prosecution action must plead and prove
that the prior judicial proceeding of which he complains terminated in his favor.” (Babb v.
Superior Court (1971) 3 Cal.3d 841, 845.) Because favorable termination is an essential
8
element of the tort, a cause of action does not accrue until the conclusion of that underlying
litigation. (Id. at p. 846.) In accordance with the general rule that limitations periods
commence to run upon accrual (§ 312), the limitations period for an action for malicious
prosecution “begins to run on the date that the proceedings in the prior action were
dismissed or terminated” (Babb at p. 846).
The Teachers’ action was not dismissed or otherwise terminated as to Wilson or the
MPA until the formal order to that effect was entered on June 15, 1998. Accordingly, that
is the date on which the cause of action accrued and the statute of limitations began to run.
The malicious prosecution action, having been filed less than one year thereafter, is timely.
Defendants assert a variety of arguments to the contrary. None have merit.
1. This Court Did Not Dismiss the Teachers’ Action
Defendants insist that this Court dismissed the Teachers’ action as to Wilson and the
MPA. That assertion is belied by the text of our decision in case no. E020044, which
merely directs the trial court to dismiss those parties.
2. The Remittitur Did Not Terminate the Teachers’ Action or Otherwise Start the
Limitations Period
Defendants offer three arguments as to why the limitations period began to run upon
the issuance of our remittitur in case no. E020044. All fail.
First, Defendants mistakenly rely upon the rule that, although the statutory period
begins to run upon entry of the favorable judgment in the underlying action, the filing of a
9
notice of appeal from that judgment tolls the running of that period until the appeal is
resolved and the remittitur is issued. (E.g., Bellows v. Aliquot Associates, Inc. (1994) 25
Cal.App.4th 426, 430; Feld v. Western Land & Development Co. (1992) 2 Cal.App.4th
1328, 1334.) From that premise, they jump to the conclusion that the statute must have
begun running when we issued our remittitur.
That reasoning fails, because the procedural circumstances governed by that rule are
materially different from those present here. In those cases, the trial court had entered a
final judgment in the underlying action in favor of the malicious-prosecution plaintiff
before appellate jurisdiction was invoked and thus before the remittitur was issued. The
entry of the judgment had caused the limitations period to begin to run, but that running had
been suspended by the subsequent appeal. The only issue before those courts was when that
suspension would end and the running resume.
By contrast, no final judgment in favor of the future Plaintiffs was issued here until
after the remittitur. Without an initial favorable judgment to trigger the running of the
limitations period, there is nothing that could have been tolled when review was sought by a
petition for an extraordinary writ. And without any period to toll, the rule governing when
that tolling would have ended is utterly irrelevant.
Defendants also argue that the limitations period should begin running upon the
issuance of our remittitur because we had directed the trial court to dismiss Plaintiffs, the
issuance of the remittitur rendered that direction final, and the trial court had no discretion
but to comply with that direction. They are again mistaken.
10
It is true that if an appellate court directs the trial court to enter a specific judgment,
the trial court has no power to do anything but to enter the judgment specified by the
appellate court. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656; Bach v.
County of Butte (1989) 215 Cal.App.3d 294, 301.) But it does not follow that the
judgment is deemed to have been entered as of the date of the remittitur rather than on the
date that the trial court actually complies with the appellate court’s directive. To the
contrary, the appellate court’s adjudication of the rights of the parties, although final, is
nevertheless “required to be embodied in form by the entry of a proper judgment in the
lower Court, to make it enforceable.” (Heinlen v. Martin (1881) 59 Cal. 181, 182; Lial v.
Superior Court (1933) 133 Cal.App. 31, 34.)
Finally, Defendants argue that the issuance of our remittitur must have marked the
accrual of the cause of action because the formal judgment of dismissal signed by the trial
court could not have. They reason that only an appealable judgment can constitute the
favorable termination upon which the cause of action accrues, that the trial court’s
judgment of dismissal was not appealable because the trial court was merely complying
with our directive, and therefore the cause of action must have accrued when our remittitur
was issued.
That analysis fails, because both premises are incorrect. There is no rule that the
final termination must be appealable. To the contrary, a final termination on the merits can
come from a decision of the appellate court, the judgment of which cannot be “appealed.”
(See, e.g., Ray v. First Federal Bank (1998) 61 Cal.App.4th 315.) Besides, even if an
appealable judgment were required, that requirement would be satisfied here. The trial
11
court’s judgment of dismissal was appealable. Although the law-of-the-case doctrine would
have rendered the appeal meritless, that lack of merit would not have affected the
appealability of the judgment.
3. The Minute Order Did Not Terminate the Teachers’ Action
Defendants also argue that the limitations period should be deemed to have begun to
run upon the entry of the trial court’s November 14 minute order. They rely on Simmons v.
Superior Court (1959) 52 Cal.2d 373, which holds that an order of dismissal recorded in a
minute order is just as effective as a formal order signed by the judge. (Id. at pp. 377-379.)
But that holding was statutorily overruled in 1963 when section 581d was amended to
delete the statutory authorization for dismissals by minute orders. (Compare Stats. 1963,
ch. 875, § 1, p. 2123, with Stats. 1951, ch. 1737, § 84, p. 4112, the version of section 581d
in effect at the time that Simmons was decided.) Section 581d now provides: “All
dismissals ordered by the court shall be in the form of a written order signed by the court
and filed in the action and those orders when so filed shall constitute judgments and be
effective for all purposes . . . .”
Because the requirement of a signed dismissal order is mandatory (John Norton
Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 162), orders that do not satisfy those
statutory requirements are ineffectual (In re Marriage of Macfarlane & Lang (1992) 8
Cal.App.4th 247, 253, fn. 4). Therefore, the unsigned minute order did not have the effect
of dismissing Wilson or the MPA from the Teachers’ action or otherwise terminating those
proceedings as to them.
12
Moreover, the law requires a “final” termination of the underlying proceeding.
(Jaffe v. Stone (1941) 18 Cal.2d 146, 152.) Even had section 581d not been amended to
require a signed dismissal order, the particular minute order here could not be construed to
be a final termination because it expressly directs the preparation of a formal order.
Because such an order is not intended to be final, it is not effective until the formal order is
signed and filed. (McHale v. State of California (1981) 125 Cal.App.3d 396, 399.)
Accordingly, a statutory limitations period begins to run upon the entry of a minute order
only if the minute order does not call for the preparation and filing of a formal order.
(County of Nevada v. Superior Court (1986) 183 Cal.App.3d 806, 808.)
4. No Delayed-Discovery Rule Is Applicable
Defendants argue: that the one-year statute of limitations is subject to a discovery
rule; that under the discovery rule the statutory period begins to run when the plaintiff
knows or reasonably should know that he or she has suffered an injury; that Plaintiffs here
knew or should have known of the issuance of our remittitur and the entry of the trial
court’s minute order; and therefore the limitations period began to run upon those events.
That reasoning fails for multiple reasons. First, they offer no authority to support
the assertion that a delayed-discovery rule applies. Any such authority would have to
overcome the holding of Babb v. Superior Court, supra, 3 Cal.3d at page 846, that the
limitations period begins to run upon termination. Second, Defendants err by equating the
termination of the Teachers’ action with an “injury” suffered by Plaintiffs. Even assuming
that the action had been terminated by either our remittitur or the minute order—which, as
explained above, is not the case—those terminations could not constitute injuries because
13
they were in favor of Wilson and the MPA. Third, “[t]he discovery rule provides that the
accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its
negligent cause.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, fn. omitted.)
Here, such a rule would be inapplicable because the issue is not when Plaintiffs discovered
their injury (i.e., the initiation of the underlying lawsuit) or its alleged cause (Defendants’
malice), but when the underlying action terminated. And fourth, even if a discovery rule did
apply, the effect of that rule is to delay the commencement of the limitations period. By
contrast, Defendants’ theory would have the anomalous result of accelerating the
commencement to a date long before the actual termination and thus before the accrual of
the cause of action.
B. The Teachers’ Action Was Dismissed on Its Merits
To support an action for malicious prosecution, the underlying action must not only
have terminated in favor of the malicious-prosecution plaintiff, that termination “must
reflect on the merits of the underlying action.” (Lackner v. LaCroix (1979) 25 Cal.3d 747,
750.) The termination must be substantive rather than technical or procedural, and must
reflect on the underlying defendant’s lack of liability for the alleged misconduct. (Id. at p.
751.)
In the trial court, Defendants contended that the dismissal in favor of Wilson and the
MPA was not on the merits. They are mistaken. The Teachers’ action was dismissed
pursuant to a special motion to strike under section 415.16. As discussed in more detail
below (at part III.C.3), a special motion to strike is properly granted only if the plaintiff has
failed to produce evidence sufficient to establish a prima facie case. If the plaintiff cannot
14
establish a prima facie case, then the action has no substantive merit. Therefore, an order
granting a special motion to strike constitutes a termination of the action on the merits in
favor of the moving defendant.
C. Defendants Have Established That, as a Matter of Law, They Had Probable Cause
to Bring Their Claims for Injunctive Relief and Damages
Defendants contend that, because they obtained a favorable ruling in the Teachers’
action, they have established as a matter of law that that claim was brought with probable
cause, thereby defeating any cause of action for malicious prosecution based on that claim.
We agree.
1. A Presumption of Probable Cause Arises from a Judgment in the Underlying
Action in Favor of the Plaintiff
It has long been the rule in California that if the plaintiff in the underlying action
obtains a judgment in his or her favor after a trial on the merits in a court of competent
jurisdiction, that judgment is presumed to establish that the plaintiff prosecuted the
underlying action with probable cause, even though the judgment is subsequently set aside
on motion or reversed on appeal. That presumption is conclusive unless the malicious-
prosecution plaintiff can establish that the judgment was obtained by extrinsic or intrinsic
fraud on the part of the opposing party. (Crowley v. Katleman (1994) 8 Cal.4th 666, 692,
fn. 15 (hereafter Crowley); Bealmear v. So. Cal. Edison Co. (1943) 22 Cal.2d 337, 340;
Carpenter v. Sibley (1908) 153 Cal. 215, 217-218; Holliday v. Holliday (1898) 123 Cal.
26, 32; Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383 (hereafter
Roberts); Cowles v. Carter (1981) 115 Cal.App.3d 350, 355.) That is consistent with the
15
majority common-law rule in the United States. (See Crescent City Live-Stock Co. v.
Butchers’ Union Co. (1887) 120 U.S. 141, 147-151 [30 L.Ed. 614, 617-618]; Rest.2d,
Torts, § 667; 1 Harper, et al., The Law of Torts (3d ed. 1996) § 4.5, pp. 4:33-4:36; Prosser
& Keeton, The Law of Torts (5th ed. 1984) § 120, p. 894.)
Plaintiffs contend that the rule authorizing the presumption of probable cause did not
survive that portion of Sheldon Appel that held that the probable cause is determined solely
from whether the action was objectively legally tenable and does not depend upon the
defendant’s subjective belief in the merits of the case. (Sheldon Appel, supra, 47 Cal.3d
863, 877-882.) They are mistaken.
Cases are not authority for issues they do not consider (People v. Nguyen (2000)
22 Cal.4th 872, 879), and the court in Sheldon Appel did not consider the continuing
viability of the probable-cause presumption. Therefore, we are bound by the prior Supreme
Court authorities adopting that presumption (Holliday v. Holliday, supra, 123 Cal. 26, and
its progeny) unless its continued use is irreconcilable with the holding in Sheldon Appel.
It is not. The primary effect of the decision in Sheldon Appel was to eliminate
confusion caused by erroneous dicta in Tool Research & Engineering Corp. v. Henigson
(1975) 46 Cal.App.3d 675 and Murdock v. Gerth (1944) 65 Cal.App.2d 170. (Sheldon
Appel, supra, 47 Cal.3d 863, 877-878.) Because the cases adopting the probable-cause
presumption were decided long before that confusion arose, the elimination of that
confusion does not undermine the rationale for the presumption. That the presumption and
Sheldon Appel are not inconsistent is further demonstrated by the fact that, even after
deciding Sheldon Appel, the Supreme Court has referred to the probable-cause
16
presumption with approval. (Crowley, supra, 8 Cal.4th 666, 692, fn. 15; and see Roberts,
supra, 76 Cal.App.4th 375, 383-384 [applying the presumption]; Downey Venture v. LMI
Ins. Co. (1998) 66 Cal.App.4th 478, 497-498 [referring to the presumption]; Hufstedler,
Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 65 [suggesting but not
deciding that the presumption survived] (hereafter Hufstedler).)
Moreover, there appears to be no reason why the probable-cause presumption should
be abolished. That presumption furthers the goal of judicial economy. If the trial court has
already decided that the underlying action is meritorious, it can be safely assumed that there
was probable cause to bring the action at the time it was filed. A reversal means only that
the trial court’s evaluation of the merits of the action was incorrect, not that it was totally
unreasonable. (Fairchild v. Adams (1959) 170 Cal.App.2d 10, 15; cf. Roberts, supra, 76
Cal.App.4th 383, 383.) That implied finding of probable cause should not be subject to
reevaluation.6 (Cowles v. Carter, supra, 115 Cal.App.3d 350, 358.) “Although in
application the rule may result in an occasional injustice, its salutary effect outweighs the
detriments.” (Ibid.)
2. A Presumption of Probable Cause to Bring the Claim for Injunctive Relief Arose
from the Order Granting that Relief, and Plaintiffs Have Failed to Rebut that Presumption
6
Another rationale for the presumption has also been voiced: “The rule is founded
on deeper grounds of public policy in vindication of the dignity and authority of judicial
tribunals constituted for the purpose of administering justice according to law, and in order
that their judgments and decrees may be invested with that force and sanctity which shall be
a shield and protection to all parties and persons in privity with them.” (Crescent City Live-
Stock Co. v. Butchers’ Union Co., supra, 120 U.S. 141, 159 [30 L.Ed. 614, 621]; Bullock
v. Morrison (1931) 118 Cal.App. 112, 114.)
17
Defendants contend that the trial court’s order granting the injunction requested in
the Teachers’ action gives rise to the presumption of probable cause. Plaintiffs having
neither alleged nor sought leave to amend their complaint to allege that that favorable ruling
was obtained by fraud, Defendants contend that the presumption is conclusive and requires
that the demurrers be sustained. Plaintiffs deny that the presumption arises under these
circumstances.
Preliminarily, Plaintiffs argue that only jury verdicts can support the probable-cause
presumption. They are mistaken. A judge’s decision after a nonjury trial that judgment
should be entered in favor of the prosecuting party is no less indicative of probable cause,
and no less worthy of respect and deference, than is a jury’s verdict. Therefore, the
probable-cause presumption arises regardless of whether the decision is made “by a court
consisting of a judge and jury or by a judge sitting as the trier of fact as well as of law . . . .”
(Rest.2d, Torts, § 667, com. a, p. 437.) In accordance with that rule, several California
cases invoke the presumption on the basis of nonjury decisions. (See, e.g., Cooper v.
Pirelli Cable Corp. (1984) 160 Cal.App.3d 294, 300 [small claims action]; Norton v. John
M. C. Marble Co. (1939) 30 Cal.App.2d 451, 454-455 [contempt proceedings]; Cowles v.
Carter, supra, 115 Cal.App.3d 350, 356 [quoting with approval a Georgia case involving a
judge’s order granting an injunction and appointing a receiver].)
Alternatively, Plaintiffs contend that only decisions reached after fair adversary
hearings are sufficient to support the presumption. They note that several cases state that
the criteria for determining whether the probable-cause presumption applies “may be
articulated in the following question: Did a trier of fact after a fair adversary hearing reach
18
a determination on the merits against the defendant in the prior proceeding?” (Cowles v.
Carter, supra, 115 Cal.App.3d 350, 358; accord, Roberts, supra, 76 Cal.App.4th 375, 383;
Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 787 (hereafter Lucchesi).)
They contend that, under that standard, the order following the trial of the injunctive relief
claim of the Teachers’ action cannot give rise to the presumption because we held that the
manner in which that trial was conducted “deprived the defendants of their due-process
right to a full and fair hearing of their defense to the accusations against them . . . .”
(E019394.)
They are mistaken. The requirement of a fair adversary hearing is simply another
way of saying that the presumption of probable cause may be rebutted only upon a showing
that the judgment in the underlying action was procured “‘by fraud, perjury or subornation
of perjury, or other unfair conduct on the part of the defendant . . . .’” (Carpenter v. Sibley,
supra, 153 Cal. at p. 218.) Here, there is no assertion of any fraud or other wrongful
conduct by Defendants during the trial. Although the trial court erred by excluding oral
testimony other than testimony on cross-examination, there is no assertion that that
exclusion was sought by Defendants. Moreover, that error did not prevent Plaintiffs from
appearing, presenting their defense, and otherwise participating in the trial. Judicial error
of this sort does not constitute either extrinsic or intrinsic fraud or mistake, and thus does
not rebut the presumption.7
7
At oral argument, Plaintiffs argued that judgments arising from proceedings lacking
due process do not collaterally estop relitigation of the issues resolved in those judgments,
that collateral estoppel is analogous to the conclusive presumption, and therefore no
conclusive presumption should arise in this instance. But because Plaintiffs neither raised
[footnote continued on next page]
19
The presumption of probable cause being unrebutted, that presumption becomes
conclusive. It having been established as a matter of law that Defendants had probable cause
to bring their claim for injunctive relief, and a lack of probable cause being an essential
element of a malicious prosecution action, the trial court correctly determined that no
malicious prosecution action can be predicated on the injunctive-relief claim.
3. A Presumption of Probable Cause to Bring the Claim for Damages arose from
the Order Denying Plaintiffs’ Special Motion to Strike, and the Plaintiffs Have Failed to
Rebut that Presumption
The Teachers’ action stated claims, not only for injunctive relief, but also for
damages. Because the damage claims were not tried with the claim for injunctive relief, the
order granting the injunction does not support a presumption of probable cause as to those
unlitigated claims. However, the order issuing the injunction is not the only trial-court
ruling in favor of Defendants. Defendants also rely on the trial court’s denial of the special
motion to strike the Teachers’ action (SLAPP suit). (§ 425.16.) Does such a ruling give
rise to the probable-cause presumption?
[footnote continued from previous page]
that argument in their briefs (Sunset Drive Corp. v. City of Redlands (1999) 73
Cal.App.4th 215, 226) nor supported that argument with citations to authority (People v.
Stanley (1995) 10 Cal.4th 764, 793), it has been waived.
20
“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.” (§ 425.16, subd. (b)(1).) The moving defendant
bears the initial burden of establishing a prima facie showing that the plaintiff’s cause of
action arises from the defendant’s free speech or petition activity. (Kyle v. Carmon (1999)
71 Cal.App.4th 901, 907.) Once the defendant makes that showing, the burden shifts to the
plaintiff to make a prima facie showing of facts that would, if believed by the finder of fact
at trial, support a judgment in the plaintiff’s favor. (Ibid.)
“It is recognized” that a SLAPP suit motion to strike “require[s] that the court
consider the pleadings and affidavits of the parties,” and therefore that “the test is similar to
the standard applied to evidentiary showings in summary judgment motions . . . .” (Church
of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654, citation omitted.) Thus,
the denial of a SLAPP suit motion to strike parallels the denial of a motion for summary
judgment.
The proper question, then, is whether denial of a motion for summary judgment, or
such an analogous ruling, can raise a presumption of probable cause for the Teachers’
action. Roberts, supra, 76 Cal.App.4th 375, 384, holds that it can. There the court held
that denial of a summary judgment in an underlying action can raise the probable-cause
presumption sufficiently to defeat a malicious prosecution action. The law on this issue,
21
however, is not clearly settled; Roberts, particularly its historical context, deserves critical
consideration.
First came Lucchesi, supra, 158 Cal.App.3d 777, 787 in 1984. Lucchesi held that
denial of a motion for summary judgment “falls short of a hearing on the merits.”
Then, in Hufstedler, supra, 42 Cal.App.4th 55, 69, the Court of Appeal held that
“[a]lthough the denial of a motion for summary judgment in the underlying action does not
itself preclude a subsequent malicious prosecution claim [citation],” the denial of the
motion certainly can support a conclusion that the underlying action was objectively
tenable. The court emphasized that, had the underlying action been clearly untenable, the
defendant’s motion in the underlying action would have been granted. (Ibid.)
Hufstedler then set the stage for Roberts. Fifteen years after Hufstedler, Roberts
expressly held “that 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.” (Roberts, supra, 76 Cal.App.4th 375, 384, italics added.) That is, in order to deny a
motion for summary judgment, the court must find that there are genuine issues of material
fact for trial, and that the moving party is not entitled to judgment as a matter of law.
“These conclusions necessarily imply that the judge finds at least some merit in the claim.
The claimant may win, if certain material facts are decided favorably. This finding (unless
disregarded) compels [the] conclusion that there is probable cause, because probable cause
is lacking only in the total absence of merit.” (Id. at p. 383, italics in original.)
Roberts and Hufstedler are plainly contrary to Lucchesi. Roberts explained this
difference: Lucchesi was decided before Sheldon Appel. In Sheldon Appel, the California
22
Supreme Court eliminated subjective good faith as an appropriate standard for determining
whether an underlying action was without merit. “Before Sheldon Appel, one could be
sued for bad faith prosecution of a claim that was objectively legally tenable. Denial of
summary judgment shows objective legal tenability, but says nothing about the claimant’s
[subjective] good faith. So before Sheldon Appel it was proper to refuse to find probable
cause based solely on denial of summary judgment. But Sheldon Appel changed the
standard for probable cause, eliminating the subjective element, and instead prescribing a
wholly objective inquiry whether the claim was frivolous or without merit. [Citation.]”
(Roberts, supra, 76 Cal.App.4th 375, 384.) Therefore, the Roberts court concluded that
denial of defendant’s motion for summary judgment in the underlying action can establish
that there was probable cause to sue. (Ibid.) Lucchesi, which had to consider subjective
good faith in addition to the objective legal merits of the cause of action, no longer applied
In the meantime, confusion arose regarding the continued vitality of Lucchesi. In
1994, after Sheldon Appel but before either Hufstedler or Roberts, the California Supreme
Court, in a different context, appeared to follow Lucchesi, reciting its ruling that the denial
of a motion for summary adjudication is not a judgment on the merits. (Crowley, supra, 8
Cal.4th 666, 675, fn. 5, & pp. 692-693, fn. 15.) Nevertheless, despite Crowley’s
apparently uncritical acceptance of Lucchesi, the Supreme Court thereafter denied review in
both Roberts (on Feb. 16, 2000) and Hufstedler (on May 22, 1996), even though neither
Roberts nor Hufstedler mentioned Crowley in their analysis. Moreover, it did not
depublish either case, even though both are contrary to Lucchesi and, implicitly Crowley.
23
Notwithstanding this confusion, the analysis in Roberts and Hufstedler makes sense
when applied to a SLAPP special motion to strike. Under section 425.16, after the moving
defendant bears the initial burden of establishing a prima facie showing that the plaintiff’s
cause of action arises from the defendant’s free speech or petition activity, the plaintiff
must set forth a prima facie showing of facts that would, if believed by the finder of fact at
trial, support a judgment in the plaintiff’s favor. (Kyle v. Carmon, supra, 71 Cal.App.4th
901, 907.) In this case, the trial court denied Plaintiffs’ special motion because Defendants
demonstrated a probability that they can prevail on the merits of their complaint, which is
supported by a sufficient prima facie showing of facts to sustain a favorable judgment. As
in Roberts, the court’s ruling necessarily implies that it found “at least some merit in the
[Teachers’] claim.” (Roberts, supra, 76 Cal.App.4th 375, 383.) Again, as in Roberts, this
finding “compels [the] conclusion that there is probable cause, because probable cause is
lacking only in the total absence of merit.” (Ibid., italics in original.) Because the
Supreme Court has impliedly accepted the reasoning set forth in Roberts by failing to grant
review of it and by failing to depublish it, we follow the analysis in Roberts and hold that a
presumption of probable cause to bring the claim for damages arose from the order denying
plaintiffs’ special motion to strike the Teachers’ action.
Hence, the presumption of probable cause being unrebutted, that presumption
becomes conclusive. It having been established as a matter of law that Defendants had
probable cause to bring their claim for damages, and a lack of probable cause being an
essential element of a malicious prosecution action, the trial court correctly determined
that no malicious prosecution action can be predicated on the damages claim.
24
IV. DISPOSITION
The judgments of dismissal are affirmed. Defendants shall recover their costs on
appeal.
CERTIFIED FOR PARTIAL PUBLICATION
/s/ Ward
J.
I concur:
/s/ Richli
J.
25
McKINSTER, J. [Concurring and dissenting opinion, Wilson v. Reich, E025710].
I concur in those portions of the majority’s opinion holding that the Plaintiffs’
action was timely filed (part III.A.) and that the Teachers’ action had been dismissed on its
merits (part III.B.). I also agree that the presumption of probable cause survived Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 (part III.C.1.) and that a presumption
that the Teachers had probable cause to bring their claim for injunctive relief arose from the
order granting that relief (part III.C.2.).
I part company with my colleagues only in the last portion of their opinion, in which
they conclude that the denial of a special motion to strike under Code of Civil Procedure
section 425.168 gives rise to a presumption of probable cause. In my view, their
conclusion is contrary to the established rule that trial court rulings that do nothing more
than determine that the plaintiff has established a prima facie showing do not support the
conclusive presumption of probable cause. Therefore, I respectfully dissent from the
majority’s analysis and decision regarding part III.C.3.
A. AS WITH OTHER MOTIONS THAT MAY BE DEFEATED BY A
PRIMA FACIE SHOWING, THE DENIAL OF A SPECIAL MOTION TO
STRIKE IS NOT A DETERMINATION ON THE MERITS AND DOES
NOT GIVE RISE TO THE PRESUMPTION OF PROBABLE CAUSE.
Although section 425.16 speaks in terms of the trial court determining whether the
plaintiff has established a “probability” of success, it has been uniformly interpreted to
authorize an analysis merely of the sufficiency of the plaintiff’s evidence to support his or
26
her claim. In ruling on the motion, the trial court does not “weigh the merits of the claim
or consider its likely outcome at trial.” (College Hospital, Inc. v. Superior Court (1994)
8 Cal.4th 704, 719 [construing comparable provisions of § 425.13]; accord, Kyle v.
Carmon (1999) 71 Cal.App.4th 901, 907-908 [§ 425.16]; Wilcox v. Superior Court
(1994) 27 Cal.App.4th 809, 823 [same].) Instead, the trial court is “‘to determine only if
the plaintiff has stated and substantiated a legally sufficient claim.’” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, quoting Rosenthal v.
Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Thus, as the majority
opinion correctly observes, a special motion to strike must be denied if the plaintiff makes
a prima facie showing of facts that would, if believed by the finder of fact at trial, support a
judgment in the plaintiff’s favor. (Kyle at p. 907.)
Because the trial court’s role when ruling on a special motion to strike is limited to
determining the sufficiency of the plaintiff’s evidence, both the plaintiff’s burden and the
trial court’s role are comparable to those presented by a motion for nonsuit, directed
verdict, or summary judgment. (Kyle v. Carmon, supra, 71 Cal.App.4th at pp. 907-908.)
The analogy between special motions to strike and motions for nonsuit is particularly close.
“A motion for nonsuit is tantamount to a demurrer to the evidence in that it
concedes the truth of the facts proved, but denies that they, as a matter of law, sustain the
plaintiff’s case. [Citation.] A motion for nonsuit should not be granted if there is any
substantial evidence tending to prove all the controverted facts necessary to establish the
[footnote continued from previous page]
8
Unless specified otherwise, all further section references are to this code.
27
plaintiff’s case.” (Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 787
(“Lucchesi”).) “[T]he denial of a motion for nonsuit (in contrast to the granting of such
motion) is not a determination on the merits.” (Ibid., fn. omitted.) “With such a minimal
showing needed to defeat the motion, we hold the denial of a motion for nonsuit is
insufficient, in itself, to conclusively establish probable cause to institute the prior civil
proceedings.” (Ibid., fn. omitted.)
The rule regarding denials of motions for nonsuit is consistent with prior decisions
holding that interim rulings denying other types of potentially dispositive motions brought
by defendants do not support the presumption. (Crowley v. Katleman (1994) 8 Cal.4th
666, 675, fn. 5, & 692-693, fn. 15 [denial of motion for summary adjudication]
(“Crowley”); Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55,
69 [denial of motion for summary judgment]; Lucchesi, supra, 158 Cal.App.3d at p. 787
[same]; De La Riva v. Owl Drug Co. (1967) 253 Cal.App.2d 593, 595-597 [denial of
motion to set aside an information pursuant to Pen. Code, § 955].)
What those motions have in common is that they can all be defeated by a prima facie
showing of evidence to support the plaintiff’s cause of action. Rulings denying those
motions are comparable to a magistrate’s decision after a preliminary hearing that there is
sufficient evidence to bind a criminal defendant over for trial. Because the magistrate does
not have full jurisdiction to try the matter and to render a judgment upon the merits, his or
her decision is not conclusive evidence of probable cause. (Holliday v. Holliday (1898)
123 Cal. 26, 32.) Instead, it is only prima facie evidence, which may be overcome by
28
contrary evidence at trial. (Ibid.; Diemer v. Herber (1888) 75 Cal. 287, 290; Foster v.
Banks (1931) 112 Cal.App. 622, 625.)
Because special motions to strike can also be defeated upon the same type of
minimal evidentiary showings establishing only a prima facie showing, the denial of a
special motion to strike is not a determination on the merits and does not give rise to a
conclusive presumption of probable cause.
B. THE MAJORITY’S CONCLUSION TO THE CONTRARY IS
UNWARRANTED AND REQUIRES AN UNAUTHORIZED
DEPARTURE FROM BINDING SUPREME COURT PRECEDENT.
In reaching a contrary result, the majority limits its discussion solely to cases
involving motions for summary judgment or summary adjudication, dismisses the
precedential value of both Lucchesi and Crowley, and follows Roberts v. Sentry Life
Insurance (1999) 76 Cal.App.4th 375, which holds that the denial of a summary judgment
motion can be sufficient to raise the probable-cause presumption. Relying on Roberts, the
majority concludes that the denial of a special motion to strike also supports that
presumption. I believe that every aspect of the majority’s analysis is incorrect.
First, there is no reason why denials of motions for summary judgment or summary
adjudication should be treated any different from denials of motions for nonsuit, of
motions to set aside an information, or of any other motion that can be defeated merely by
making a prima facie showing. Unless a rational and persuasive distinction can be drawn,
some basis for disagreeing with the authorities settling the rule applicable under those
circumstances—e.g., Holliday v. Holliday, supra, 123 Cal. 26; Diemer v. Herber, supra,
29
75 Cal. 287; De La Riva v. Owl Drug Co., supra, 253 Cal.App.2d 593; Foster v. Banks,
supra, 112 Cal.App. 622—should be articulated before they are disregarded without
mention or discussion.
Second, the majority’s attack on Lucchesi fails. The majority notes that Lucchesi
was decided in 1984, before the Supreme Court held in 1989 that probable cause does not
depend upon the subjective good faith of the plaintiff in the underlying action. (Sheldon
Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at pp. 877-882.) Because subjective good
faith is no longer an issue, the majority reasons, Lucchesi’s conclusion is no longer valid.
That analysis fails because Lucchesi’s holdings that denials of motions for nonsuit
and summary judgment do not give rise to the presumption of probable cause are not based
upon the subjective/objective distinction. Instead, the court held that those denials are
insufficient because they involve merely a determination that a prima facie case has been
shown rather than a determination on the merits. (Lucchesi, supra, 158 Cal.App.3d at pp.
787-788.)
Moreover, in Crowley, decided five years after Sheldon Appel Co. v. Albert &
Oliker, the Supreme Court was faced with the contention that the denial of a motion for
summary adjudication had given rise to a conclusive presumption of probable cause. The
court rejected that contention, explaining that, “as the Court of Appeal herein correctly
held, the denial of Crowley’s motion for summary adjudication of issues . . . was not a
judgment on the merits for that purpose. (Lucchesi v. Giannini & Uniack, supra, 158
Cal.App.3d 777, 785-788.)” (Crowley, supra, 8 Cal.4th at pp. 692-693, fn. 15.) The
30
Supreme Court’s express reliance upon Lucchesi dispels any notion that Lucchesi was
implicitly disapproved by Sheldon Appel Co.
The majority dismisses Crowley on the ground that its holding regarding denials of
summary adjudication motions is based on an “uncritical acceptance” of Lucchesi. But as
an intermediate appellate court, we are bound by the holdings of our Supreme Court
whether we think that they are well-reasoned or not. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) That is particularly true here, where the opinion in
question is consistent with a line of authority reaching back over a hundred years. We may
suggest that the issue be revisited or that the rule be changed, but we must do so while
complying with the existing Supreme Court authority. (9 Witkin, Cal. Procedure (4th ed.
1997) Appeal, § 931, pp. 967-968.)
Reliance upon the Court of Appeal’s decision in Roberts v. Sentry Life Insurance,
supra, is barred for the same reason. Roberts’s holding that the denial of a summary
judgment motion gives rise to the presumption of probable cause cannot be reconciled with
the contrary holding from Crowley quoted above. Given the supremacy of the higher court
and the doctrine of stare decisis, we are bound to follow Crowley. (Auto Equity Sales, Inc.
v. Superior Court, supra, 57 Cal.2d at p. 455.)
Even if we could, I would not be inclined to exempt special motions to strike from
the rule that denials of demurrers to the evidence do not support a presumption of probable
cause. Because the presumption is conclusive, it is properly reserved only for those cases
in which either the merits of the cause of action have actually been tried, or the cause of
action has been determined to be meritless before trial. As explained above, a special
31
motion to strike can be defeated merely by making a prima facie showing. Indeed, the trial
court here expressly explained that the motion had been denied because the opposing
parties had presented “a sufficient prima facie showing of facts to sustain a favorable
judgment.” The determination that such a minimal showing has been made is neither a trial
on the merits nor a finding that the action is utterly without merit. Therefore, it should not
be given conclusive effect. While it may be persuasive evidence at trial, it does not justify
an extraordinary conclusive presumption terminating the Plaintiffs’ action at the pleading
stage.
C. THAT MALICIOUS PROSECUTION ACTIONS ARE DISFAVORED
DOES NOT JUSTIFY A DIFFERENT RESULT.
“[M]alicious prosecution is a ‘disfavored cause of action’ because of its potentially
chilling effect on the public’s willingness to resort to the courts for settlement of
disputes.” (Crowley, supra, 8 Cal.4th at p. 680.) Early in its analysis, the majority opinion
recites that characterization. But that disfavored status does not justify the result reached
by the majority. The conclusive presumption of probable cause has no application outside
the realm of malicious prosecution. Because we have no occasion to distinguish between
the rules governing that “disfavored” cause of action and those governing other, presumably
“favored” causes of action, the pejorative label does nothing to further the analysis.
To the contrary, it tends to frustrate reasoned analysis by clouding the issue. As the
Supreme Court has warned, “‘“we should not be led so astray by the notion of a ‘disfavored’
action as to defeat the established rights of the plaintiff by indirection; for example, by
inventing new limitations on the substantive right, which are without support in principle or
32
authority . . . .”’” (Crowley, supra, 8 Cal.4th at p. 680.) Because of that potential for
distraction, “[l]ittle is gained by the use of such epithets.” (Ibid., fn. 8.)
As set forth above, a long line of Supreme Court and intermediate appellate court
cases, from Diemer v. Herber in 1888 to Crowley in 1994, establishes and applies the rule
that trial court rulings that do nothing more than determine that the plaintiff has established
a prima facie showing do not give rise to the conclusive presumption of probable cause. By
disregarding that rule, the majority opinion does exactly what Crowley warns against, i.e., it
invents new limitations on the right to maintain a malicious prosecution action, without
support in principle or viable authority. I decline to join my colleagues in doing so.
D. CONCLUSION
I would hold that the denial of the special motion to strike did not give rise to the
presumption of probable cause. Because the Teachers did not otherwise establish that the
Plaintiffs will be unable to establish that the Teachers lacked probable cause to bring their
damage claims, I would hold that the orders sustaining the demurrers to that cause of action
without leave to amend must be vacated and the judgments of dismissal must be reversed.
Because the majority concludes otherwise, I dissent.
McKINSTER
Acting P. J.