Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2008-00104223 Sheila Fell, Judge.
Law Offices of Robert W. Drane and Robert W. Drane for Plaintiff and Appellant.
Pettit Kohn Ingrassia & Lutz, Douglas A. Pettit and Jeffrey K. Miyamoto for Defendant and Respondent.
OPINION
MOORE, J.
Plaintiff and Appellant John Allen (Allen) sued defendant and respondent Thomas Mauriello (Mauriello), an attorney, for malicious prosecution based upon a petition for a writ of mandate Mauriello filed on behalf of his clients naming the City of Oakland (the City) as respondent and Allen and two of Allen’s companies as real parties in interest. The mandamus proceeding involved land owned by Allen, permits issued by the City for work to be performed on the property, and the legality of certain provisions of the written settlement agreement of a lawsuit Allen had previously filed against the City for inverse condemnation. Mauriello filed a special motion to strike (Code of Civ. Proc., § 425.16) the malicious prosecution action under the anti-SLAPP law. The superior court granted the motion and Allen appeals. Because we agree Allen failed to make a prima facie showing the petition for a writ of mandate filed in the underlying action lacked probable cause, we affirm.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
“SLAPP is an acronym for ‘strategic lawsuits against public participation.’ [Citation.] A special motion to strike a SLAPP action, codified in... section 425.16, provides a procedural remedy to gain an early dismissal of a lawsuit or a cause of action that qualifies as a SLAPP. [Citation.]” (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 309, fn. 1.)
I
FACTS
A. Allen’s Inverse Condemnation Lawsuit and the Creek
Allen owns the adjoining hillside properties at 1903 and 1907 Tunnel Road in Oakland, California. The house at each address was destroyed in the 1991 Oakland fires. Allen rebuilt his residence at 1907 and in 1997 purchased the property at 1903, which was vacant except for the foundation of the house that had been destroyed in the fires.
In 1999, Allen sued the City of Oakland for inverse condemnation, trespass, and nuisance, alleging the City diverted water onto his property, causing a landslide. The City denied liability and alleged there had been a “sloughing of mud, rather than a ‘slide.’” In June 2000, while Allen’s lawsuit against the City was still pending, he applied for a building permit and design review to construct a residence on the 1903 property and to repair damage from the slide. Two days later, the City’s Community Economic Development Agency Office of Planning and Building issued Allen a grading permit for “slope protection” on the 1903 property.
Some time thereafter, the City informed Allen that the watercourse on the 1903 property was a creek under the City’s creek protection ordinance (the ordinance). That designation meant additional permits were required over those normally required for construction. The City informed Allen he needed to apply for a creek protection permit (creek permit). Allen filed a creek permit application in October 2000. The application covered landslide repair and grading for a single family residence.
In July 2001, while his lawsuit against the City was still pending, Allen appealed the City’s determination that the watercourse on the 1903 property was a creek. The City’s creek designation was upheld by the City’s Public Works Agency in early September 2001, after an evidentiary hearing.
On September 28, 2001, the City and Allen settled his lawsuit. The City agreed to pay Allen $112,000 in damages and up to $40,000 in mitigation for loss of the creek required under the conditional waiver of waste discharge requirements granted by the regional water quality control board. The agreement anticipated Allen culverting the creek on his property and granted the City an easement to enable it to thereafter maintain the culvert.
Reports by geotechnical experts hired by Allen warned that there existed a “great need and urgency” to abate an imminent danger of more substantial earth movement based upon continued creep and cracking of soil on the 1903 property. An August 2000 report by the regional water quality control board concluded that culverting the creek was necessary for site stabilization. The City concluded continuing land movement threatened the 1907 property and public safety.
The same day Allen’s suit against the City settled, the City issued him an emergency creek protection permit (emergency permit) and an emergency grading permit. These permits allowed Allen to perform stabilization work on the 1903 property before the next rainy season and while he was waiting for a determination of whether he would be issued the creek permit he requested the previous year. The emergency permits for a culvert and grading for “emergency slide repair” issued with an attached set of conditions. The work was to be accomplished between October 1 and November 15, 2001.
B. The Mandamus Petition Filed by Mauriello
Once Allen undertook construction on the 1903 property, including drilling for piers, pouring concrete piers into the creek bed for the foundation of a house, placement of sewer pipes or sleeves, Mauriello’s clients and others complained to the City about the issuance of the emergency permit, that the work that was being performed required a creek permit, and that Allen was performing work outside the scope of the emergency permits. The City hired a geotechnical expert to monitor the situation. As a result of the expert’s report, the City ordered Allen to halt work not authorized by the emergency permits and to backfill the areas already excavated.
The City granted a number of extensions, but the work authorized by the emergency permit was not completed on time. The final extension was granted on March 7, 2002. The next day, the City’s director of building services issued Allen a creek permit subject to several conditions, including construction of a surface watercourse along the westerly boundary of the 1903 property, that Allen contact the City before commencing any construction work on the site, and that Allen strictly comply with the terms and conditions of grading and construction permits. Allen appealed the imposition of conditions. The appeal was denied. In June 2002, the City rescinded the creek permit because Allen failed to comply with the imposed conditions.
Prior to the City issuing the creek permit, Mauriello filed a petition for a writ of mandate in the Alameda County Superior Court on behalf of a number of taxpayers and North Hills Phoenix Association, a nonprofit citizens’ group formed in the aftermath of the Oakland fires. The petition sought to set aside the emergency permit and the City’s settlement of Allen’s lawsuit against the City. The City was named as respondent and Allen, together with two companies he owned, were designated as a real parties in interest. After the court granted the City’s motion for summary adjudication challenging the California Environmental Quality Act (CEQA) cause of action, the petitioners filed an amended petition containing six causes of action.
The City demurred to the amended petition, alleging the applicable statute of limitation for the CEQA claim (the fifth cause of action) had expired and notice was not required for the issuance of an emergency permit (the third cause of action). The court overruled the demurrer.
Allen brought a special anti-SLAPP motion to strike the petition, which the superior court denied. Allen appealed and the Court of Appeal upheld the superior court in an unpublished opinion. (North Hills Phoenix Assn. v. City of Oakland, (Aug. 6, 2004, A103449).)
C. The Mandamus Petitions Filed by Allen
Allen also filed two of his own petitions for writs of mandate in connection with his 1903 property, naming the City as respondent. In the first petition, filed in December 2001, he contended a creek permit was not required for construction on the 1903 property and that he was entitled to issuance of building permits. In the second petition, filed a year later, Allen sought to invalidate certain conditions imposed in connection with the creek permit issued by the City.
D. Resolution of all the Petitions
For case management purposes, Allen’s petitions and the petition filed by Mauriello were consolidated by the Alameda Superior Court. The judge ruled Allen’s petitions would be resolved first, in phases I and II, with Mauriello’s clients bound by those decisions. The petition filed by Mauriello would then be resolved in phase III of the litigation. The matters were delayed for a number of years, including the time Allen appealed the denial of his anti-SLAPP motion. Mauriello filed a formal motion to advance the trial date for phase III, which Allen opposed.
A third petition filed by Allen in January 2005, was not included in the consolidation and a petition filed by one of Allen’s neighbors was dismissed as moot.
Phase I was decided in December 2004, when the court denied Allen’s first petition. In phase II, decided in April 2005, the court denied Allen’s second petition. And in phase III, decided in March 2006, the court denied Mauriello’s petition.
E. The Present Malicious Prosecution Action
Allen subsequently filed the present malicious prosecution complaint in Orange County, where Mauriello has his principal place of business. Mauriello filed an answer and a section 425.16 anti-SLAPP motion to strike. The court heard the motion and noted Allen conceded the petition for writ of mandate filed by Mauriello in Alameda County was brought in furtherance of the right of petition or free speech. The court found Mauriello demonstrated “the underlying lawsuit was tenable and that [he] had a reasonable belief of its probable success, ” and that Allen did not demonstrate a probability of prevailing on the merits. The court granted the motion to strike, finding it “unnecessary to discuss the issue of malice.”
II
DISCUSSION
A. Section 425.16 and the Standard of Review
Section 425.16, subdivision (b)(1) provides: “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 Constitution or the 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.” A motion under this provision is commonly known as an “anti-SLAPP” motion. (Jarrow Formulas, Inc. v. LaMarche (2003)31 Cal.4th 728, 732-733 (Jarrow Formulas, Inc.).) We review de novo the trial court’s ruling under the anti-SLAPP statute. (Slaney v. Ranger Ins. Co., supra, 115 Cal.App.4th at p. 318.)
B. Anti-SLAPP Analysis
“Resolution of an anti-SLAPP motion ‘requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue, ” as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Jarrow Formulas, Inc., supra, 31 Cal.4th at p. 733.)
1. First Step – Cause of Action Arising From Protected Activity
In Jarrow Formulas, Inc., supra, 31 Cal.4th 728, the Supreme Court upheld the trial court’s determination that a malicious prosecution action “falls within the ambit of a ‘cause of action against a person arising from any act... in furtherance of the person’s right of petition’ (§ 425.16, subd. (b)(1)), as statutorily defined.” (Id. at p. 734.) Simply put, “malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. [Citations.]” (Id. at p. 735.) Allen conceded in his opposition to the special motion to strike that the petition for a writ of mandate filed by Mauriello arose from protected activity. As Mauriello met his burden of demonstrating the challenged cause of action arose from protected activity, the burden shifted to Allen to show a probability of prevailing on his malicious prosecution claim. (Jarrow Formulas, Inc., supra, 31 Cal.4th at p. 733)
2. Second Step – Probability of Prevailing
a. Required Showing
We now determine whether Allen presented sufficient evidence to establish a probability of prevailing on his malicious prosecution claim. “In ‘making [that] determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citations.] The evidence submitted by [Allen] must be admissible [citation], and, if credited at trial, must support a judgment in his favor. [Citations.] Significantly, the trial court cannot and does not weigh the moving party’s evidence against the opposing party’s evidence, but addresses the factual and legal issues as in a motion for summary judgment. [Citation.] If the opposing party fails to make the requisite showing, the motion must be granted. [Citation.]” (Slaney v. Ranger Ins. Co., supra, 115 Cal.App.4th at p. 318.)
We look to the elements of Allen’s action for malicious prosecution to determine whether he established a probability of prevailing on his claim. “The three primary elements necessary to establish liability for the claim of malicious prosecution are that a prior claim initiated by [Mauriello] was: ‘(1) pursued to a legal termination favorable to the plaintiff [Allen]; (2) brought without probable cause; and (3) initiated with malice. [Citations.]’ [Citation.]” (Slaney v. Ranger Ins. Co., supra, 115 Cal.App.4th at p. 318.)
b. Probable Cause
Because we find resolution of the second element of malicious prosecution — whether the prior lawsuit was supported by probable cause — is determinative, we need not address the first or third elements. “‘Probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which allreasonable lawyers agree totally lack merit — that is, those which lack probable cause — are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.’ [Citations.]” (Jarrow Formulas, Inc., supra, 31 Cal.4th at p. 743, fn. 13.) In this context, probable cause means the underlying proceeding need not have been likely to succeed, but only that the filing of the underlying action was “objectively reasonable.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 883.) “If any reasonable attorney would have considered the action legally tenable, probable cause is established. [Citation.]” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 517.) “Only those actions that ‘“any reasonable attorney would agree [are] totally and completely without merit”’ may form the basis for a malicious prosecution suit. [Citation.]” (Ibid., italics added.) In other words, “probable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.) “This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims.’ [Citation.]” (Id. at p. 817.)
In determining whether Allen made a prima facie showing of the probability of prevailing on his cause of action, we “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th at p. 67.) “[W]here there is no dispute as to the facts upon which an attorney acted in filing the prior action, the question of whether there was probable cause to institute that action is purely a legal question. [Citation.] That legal question is ‘to be determined by the trial court on the basis of whether, as an objective matter, the prior action was legally tenable or not.’ [Citation.]” (Downy Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 496, fn. omitted.) In other words, the court must “determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Ibid.) The facts known to Mauriello at the time of the filing of the petition for a writ of mandate are not in dispute. Allen bears the burden of proving through admissible evidence a reasonable probability of prevailing on his malicious prosecution action. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1014.)
In deciding this matter, we do not consider the portions of either Allen’s or Attorney Smith’s declarations to which Judge Fell sustained Mauriello’s objections.
Allen contends about the Alameda County judge: “Judge Sabraw found all of [Mauriello’s] claims were untenable and without substantial evidence.” We have read Judge Sabraw’s 18-page decision denying Mauriello’s petition for a writ of mandate. We find no such finding. This may be the type of allegation Judge Fell referred to in the order granting the anti-SLAPP motion to strike when she noted, “[Allen] has not been totally accurate in relating conclusions from the underlying case. [Allen] has inaccurately depicted numerous ‘facts’ and ‘findings’ by the prior court.”
Judge Fell, the Orange County judge in the instant action, found the underlying lawsuit was tenable and Mauriello had a reasonable belief in its probable success, i.e., Allen did not show a probability of prevailing on the merits of his malicious prosecution action. “Because the malicious prosecution tort is intended to protect an individual’s interest ‘in freedom from unjustifiable and unreasonable litigation’ [citation], if the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail.” (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 878.)
As noted earlier, the underlying petition for a writ of mandate contained six causes of action. Because a malicious prosecution action may be based on a single count in a multiple count previous action (see Crowley v. Katleman (1994) 8 Cal.4th 666, 695 [one of multiple causes of action may serve as basis malicious prosecution when that cause of action was maliciously asserted without probable cause]), we discuss each of the causes of action alleged in the petition for a writ of mandate.
i. The First Cause of Action
The first cause of action in Mauriello’s underlying petition alleged the City violated its ordinance by issuing Allen an emergency permit and the emergency grading permit. The petition alleged there was no substantial evidence to support the issuance of the permits in that under the ordinance “there was no need to culvert the creek for stabilization of a landslide that had no adverse impacts to the creek” on Allen’s property. The petition further alleged the “City’s issuance of the emergency permit was arbitrary and capricious, legally erroneous, not based on substantial evidence, an abuse of discretion, and a violation of the Oakland Municipal Code.”
It appears from Mauriello’s amended petition for a writ of mandate and the declaration he filed in support of his special anti-SLAPP motion to strike Allen’s malicious prosecution action that in filing the petition Mauriello relied upon: (1) the City’s own contention that there had been no landslide on the property, only a “sloughing of mud”; (2) the City’s own geotechnical report that the conditions on the property presented no sense of urgency; (3) the fact that culverting of a creek is generally not permitted under the ordinance; (4) that alternatives to culverting existed, including covering ground with plastic sheeting as had successfully been done in 2000-2001; and (5) that Allen had helped create the purported “emergency” condition by “removing natural stabilizing vegetation.” Points and Authorities filed in Alameda County in support of Mauriello’s petition for a writ of mandate indicate he relied upon Western Mun. Water Dist. v. Superior Court (1986) 187 Cal.App.3d 1104 (disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2) as supporting his position that no “emergency” existed on the property.
Although Judge Sabraw relied upon a different case (CalBeach Advocates v. City of Solano Beach (2002) 103 Cal.App.4th 529, 536-537) in upholding the City’s determination of the existence of an emergency situation on the property, Mauriello was entitled to rely on the definition of emergency in Western Mun. Water Dist. v. Superior Court, supra, 187 Cal.App.3d at p. 1111 [CEQA’s definition “limits an emergency to an ‘occurrence, ’ not a condition”], in contending the City erroneously granted Allen an emergency permit. To subject Mauriello to liability because the trial court chose a case with a definition of emergency favorable to Allen instead of the definition in the case Mauriello relied upon would prove an unjustifiable deterrent to litigants by exposing attorneys to liability for following a decision of an appellate court, should the trial court choose to follow a disconsonant decision.
Allen, however, contends Mauriello lacked probable cause to file this cause of action because the mere fact that the City had reports indicating the existence of an emergency condition with regard to the possibility of a slide on the 1903 property rendered any mandate action untenable. He asserts that as there was evidence before the City supporting the existence of an emergency, the petition lacked probable cause and Mauriello could not prevail, “[n]o matter what evidence Maurielloproduced.” (Italics added.) According to Allen: “The fact that Mauriellopresented evidence during the underlying mandate action and in support of his anti-SLAPP motion [in the present case] that would have supported a finding by Judge Sabraw that there was no emergency, does not make Mauriello’s mandate action tenable.”
After claiming Mauriello could not prevail on the petition for a writ of mandate regardless of the evidence he might produce, Allen argues malice may be inferred from the fact that Mauriello did not hire an expert in an effort to introduce the very evidence Allen contends is irrelevant.
Although Allen argues he does not contend Mauriello lacked probable cause “because he lost that action, ” no other interpretation of “[s]ince the City had substantial evidence to support its decisions, a challenge to those decisions was not tenable” is possible. Boiled down to its essence, Allen’s argument is: if a petitioner (or the petitioner’s attorney) does not prevail on a petition for a writ of mandate (§ 1085), the adverse ruling is irrebuttable proof the petition was not supported by probable cause. In other words, every petitioner (and his/her attorney) must prevail on the petition or face trial for malicious prosecution action if such an action is subsequently filed by a prevailing party.
“Malicious prosecution is a disfavored action. [Citations.] This is due to the principles that favor open access to the courts for the redress of grievances. In fact, it has been held that access to the courts is a constitutional right founded upon the First Amendment to the United States Constitution. [Citations] But regardless of any constitutional basis for the policy, it is beyond dispute that the strong public policy of this state favors open access to the courts for the resolution of conflicts. [Citations.] ‘The courts of the state are open to every citizen for the redress of his wrongs, and unless he is at liberty to seek such redress without rendering himself liable in damages to the defendant, in case he shall fail to establish his complaint, this right would in many instances be a barren privilege.’ [Citation.] Accordingly, litigants have the right to present issues that are arguably correct even if it is extremely unlikely they will win. [Citations.]” (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 566.)
Given the facts alleged in the first cause of action, as well as the law, we conclude that some reasonable attorneys would find merit in the first cause of action. Accordingly, we conclude it was supported by probable cause.
ii. The Second Cause of Action
The second cause of action alleged the City failed to enforce the scope, conditions, and limitations of the emergency permits. According to Oakland Municipal Code section 13.16.130(f), work authorized by an emergency permit “shall be limited to the abatement of the imminent threat.” ( [as of 8/23/10].) This cause of action alleged Allen exceeded the scope of the emergency permit, interalia, by grading in excess of that permitted, drilling for piers that were not authorized, and placement of piers not authorized. Although Judge Sabraw denied relief and found the work allowed by the City was necessary to stabilize the property, she also noted there had been “confusion between City staff and Allen as to exactly what work had been approved as emergency work under the [emergency permit], apparently due to the fact that Allen had submitted the same, single, set of construction plans... for both the landslide repair work and for the construction of the house on the lot.” The court also found Allen had, in fact, exceeded the scope of the emergency permit, but that the City ordered him to fill in the excavation work performed for nonemergency purposes.
As acknowledged by Allen, himself, when he brought his own writs and when he opposed Mauriello’s writ, there existed a legitimate dispute over the scope of the permit and whether the work Allen performed on the property was authorized by the emergency permit. The second cause of action was tenable.
iii. The Third Cause of Action
The third cause of action alleged the City violated the ordinance by issuing the emergency permit without providing notice as required by the ordinance. In filing this cause of action, Mauriello relied upon the fact that the emergency permit stated it is a Category IV permit, Oakland Municipal Code section 13.16.180(a) requires posted notice of an application for a Category IV permit, section 13.16.180(b) of the Oakland Municipal Code requires 10 calendar days notice before the City issues a decision on the application, no application was ever made for an emergency permit, and the ordinance does not state an application is not required or that notice is not required for an emergency permit. These facts supported an argument that the City issued an emergency permit in violation of the ordinance, notwithstanding the fact the court ultimately ruled the ordinance does not require an application for an emergency permit and thus, there was no notice to post.
Moreover, the City filed a demurrer to this cause of action, alleging it failed to allege facts sufficient to state a cause of action. Judge Sabraw overruled the demurrer, finding “petitioners plead legally sufficient claims involving mixed questions of law and fact.” The fact that the City’s demurrer was overruled indicates the cause of action was legally tenable. (Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 625-626 [demurrer overruled], disapproved on other grounds in Zamos v. Stroud (2004) 32 Cal.4th 958, 973.)
We note that the demurrer was filed by the City, not Allen. However, for all practical purposes their interests were the same in this regard and had the City’s demurrer been sustained, Allen would have benefitted to the same extent as the City.
iv. The Fourth Cause of Action
This cause of action alleged the City failed to enforce the emergency permits deadlines. The emergency permit and emergency grading permit were issued on September 28, 2001. Each stated on its face a completion date of November 15, 2001, before the onset of the rainy season. Other than an earthquake, a heavy period of rain was viewed as an event that could trigger a landslide on the property. According to the petition, the City permitted work under the emergency permits to continue on the property through February 2002, and a number of extensions were granted, and Allen did not comply with the deadlines. The petition further alleged that as a result, the rainy season — the event that purportedly justified the emergency permit — came and went, but the work had not been completed. The fourth cause of action was tenable.
The emergency grading permit mistakenly indicates the completion date as “11/15/00.”
v. The Fifth Cause of Action
The fifth cause of action alleged a violation of CEQA. The petition alleged the project built was substantially different than stated in the Notice of Exception and, as a result, additional CEQA review was required. This cause of action was also a target of the City’s unsuccessful demurrer. As stated earlier, the fact that the court overruled the demurrer demonstrates the cause of action was legally tenable. (Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at pp. 625-626.) In denying relief on this cause of action the court concluded the changes Allen made were not “significant” and when they were discovered, the City ordered Allen to stop work and refill the excavation. This cause of action, turning as it did on whether or not the court determined the changes that occurred were significant, was tenable.
vi. The Sixth Cause of Action
The sixth cause of action was brought pursuant to section 526a, which authorizes taxpayer lawsuits against local government agencies and provides in pertinent part: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein....” This cause of action alleged the settlement of Allen’s lawsuit against the City was illegal because (a) it permitted Allen to culvert the creek on his property without obtaining a creek permit or undergoing CEQA review, and (b) was a waste of public funds because the City assumed liability in the settlement for damages or other civil costs resulting from dangerous conditions Allen may create on his property, including potential penalties of up to $25,000 a day for ongoing violations of the Federal Clean Water Act. The petition sought an injunction prohibiting development on Allen’s properties until such time as a lawful creek permit issued and completion of a proper CEQA review.
This cause of action relied upon the petition’s earlier allegations that the culverting of the creek was unlawful, the issuance of the emergency permit was not in compliance with the ordinance requirements, and that CEQA review was required. We earlier found these contentions were supported by probable cause. The timing of the issuance of the emergency permit, coming as it did on the same day Allen settled his lawsuit against the City and without his requesting its issuance did seem to be more than coincidental. We conclude not every reasonable attorney would have found the sixth cause of action totally and completely meritless. The sixth cause of action, like the first five causes of action, was supported by probable cause. Moreover, to the extent Allen’s malicious prosecution is based on that portion of the sixth cause of action seeking an injunction, Allen cannot prevail because that particular portion of the action was not decided in his favor; the request for an injunction was denied as moot. (Padres L.P. v. Henderson, supra, 114 Cal.App.4th at p. 514 [dismissal on mootness grounds does not result in a favorable termination].)
c. Mauriello’s Claim of Absolute Privilege
Mauriello also contends his actions in filing and prosecuting the petition for a writ of mandate were absolutely privileged and cannot serve as the basis of a malicious prosecution action under City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 538-539 [“governmental entities may not maintain actions for malicious prosecution against those who have previously sued such entities without success”]. However, inasmuch as we agree Allen failed to demonstrate a probability of prevailing with respect to the second element of malicious prosecution, we need not decide and do not address this issue.
d. Conclusion
Mauriello succeeded is showing that the malicious prosecution action is based upon protected conduct under section 425.16. The burden then shifted to Allen to demonstrate a probability of prevailing on each of the elements of his malicious prosecution action. Allen did not meet his burden. The trial court did not err in granting Mauriello’s anti-SLAPP motion to strike Allen’s complaint.
III
DISPOSITION
The order is affirmed. Mauriello shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.