Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County, No. RIC500014, Gloria Trask, Judge.
Lobb Cliff & Lester, Mark S. Lester, David Cantrell, and Orlando J. Villalba for Defendants and Appellants.
Law Offices of Doonan & Doonan, Inc., D. Scott Doonan, Daniel J. Doonan, and Lynne Rasmussen for Plaintiffs and Respondents.
OPINION
King, J.
I. INTRODUCTION
Colleen Bishop, Randy Bishop, and Scott Kelly sued Steven and Patricia LaMunyon to specifically enforce an alleged contract to purchase certain property from the LaMunyons. The Bishops and Mr. Kelly were represented by the law firm of Reid & Hellyer. The LaMunyons won that lawsuit and have now sued the Bishops, Mr. Kelly, Reid & Hellyer, and three of Reid & Hellyer’s attorneys for malicious prosecution. The LaMunyons allege that defendants initiated and maintained the underlying lawsuit without probable cause and with malice. As against Reid & Hellyer and the three attorneys (collectively, R&H), the LaMunyons rely heavily upon allegations that R&H illegally concealed evidence and suborned the perjury of their clients.
R&H filed a special motion to strike the complaint as a strategic lawsuit against public participation, commonly referred to as an anti-SLAPP motion, pursuant to Code of Civil Procedure section 425.16. R&H asserted they were being sued for representing the Bishops and Mr. Kelly in the underlying lawsuit, which is protected activity for purposes of the anti-SLAPP statute. They further argued that the LaMunyons could not show a probability of success on the merits. The LaMunyons opposed the motion, arguing that suborning perjury and concealing evidence is illegal and therefore not protected under the anti-SLAPP statute and that they would prevail on the merits. The trial court denied the anti-SLAPP motion on the ground that R&H is not entitled to protection “because there is at a minimum an inference that the defendants withheld information [from] the court.” R&H appealed.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
As we explain below, although the alleged illegal conduct by R&H may be relevant to establishing the malice element of a malicious prosecution claim, such conduct cannot constitute the gravamen of the malicious prosecution cause of action for purposes of the anti-SLAPP statute because California law does not recognize a claim for damages based upon the unlawful concealment of evidence or suborning perjury. The gravamen of the cause of action is that R&H represented its clients and maintained the underlying action without probable cause and with malice. As such, its conduct is protected activity for purposes of the anti-SLAPP statute. Because we further conclude that the LaMunyons have failed to satisfy their burden of showing a probability of success on the merits of their malicious prosecution action, we reverse the order denying the anti-SLAPP motion.
II. FACTS AND PROCEDURAL HISTORY
In accordance with the standards for evaluating an anti-SLAPP motion and our standard of review, we set forth our summary of the evidence in a light favorable to the plaintiffs. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 326 (Flatley).)
A. Background
The LaMunyons own certain property in Canyon Lake, California. In 1995, the LaMunyons orally agreed with Colleen Bishop and Ms. Bishop’s mother, Marie Kelly, to rent the property to Marie Kelly. Under this agreement, Marie Kelly would pay “rent” by (1) paying the monthly mortgage payments for the property, (2) paying the property owner and condominium association dues, and (3) being responsible for maintenance, upkeep, and repairs to the property. According to the LaMunyons, the rent was equal to $1,201 per month.
In June 1995, while Steven LaMunyon was out of the country, Colleen Bishop presented certain documents to Patricia LaMunyon for her signature. Ms. Bishop represented to Ms. LaMunyon that the documents were necessary for Marie Kelly to obtain access to the gated community of Canyon Lake. One of the documents presented to Ms. LaMunyon was titled “BILL OF SALE.” According to this document, Patricia LaMunyon agreed to sell the property to Colleen Bishop for $135,000; the price would be paid in part by the buyer’s assumption of an existing first deed of trust and in part by a non-interest-bearing promissory note in the amount of $15,000, payable in installments of at least $100 per month. The “Buyer will make every attempt to refinance said property and take title to the property as well as repay the second trust deed;...” In addition, the “Buyer agrees to assume and pay said secured debt” and “agrees to the terms and conditions of the two homeowners’ associations governing” the property.
A second document presented to Ms. LaMunyon was a Canyon Lake Property Owners Association form by which Patricia LaMunyon authorized the property owners association to issue an identification card, car decal, and boat decal to her “LESSEE,” Marie Kelly. (We will refer to this as the property management agreement.) This document also provided for the relinquishment by Patricia LaMunyon of all privileges and boating rights to Marie Kelly and authorized Colleen Bishop to act as the manager of the LaMunyons’ property.
A third document is described as a “SELF RENEWING LEASE” and “LEASE AGREEMENT,” which we will refer to as the rental agreement. According to the rental agreement, the LaMunyons leased the property to Marie Kelly for one year, and from year to year thereafter unless either party gives notice of termination to the other party. The stated rent is $4,800 per year ($400 per month). Marie Kelly signed this document as “Lessee.”
Patricia LaMunyon signed each of these documents. Steven LaMunyon did not sign any of them.
Marie Kelly took possession of the property in July 1995. According to the LaMunyons, Marie Kelly was their tenant; Marie Kelly and Colleen Bishop stated that Ms. Kelly lived in the property as the tenant of Colleen Bishop and Scott Kelly.
In 2003, a dispute arose over ownership of the property. In August 2003, Scott Kelly and Colleen Bishop commenced an action against the LaMunyons for specific performance and breach of contract (the underlying action). The claims were based upon the bill of sale signed by Patricia LaMunyon and Colleen Bishop. Mr. Kelly and Ms. Bishop were initially represented by the firm of Giardinelli & Associates. R&H substituted in as counsel for Scott Kelly and Colleen Bishop in March 2004.
In February 2004, while the underlying action was pending, the LaMunyons filed a complaint for unlawful detainer against Marie Kelly (the UD action). The LaMunyons alleged they were the owners of the property and orally agreed to rent the property to Marie Kelly. Marie Kelly filed a verified answer to the complaint in the UD action in March 2004. R&H represented Ms. Kelly. In the answer, Ms. Kelly generally denied the allegations of the complaint and asserted the following affirmative defense: “[The LaMunyons] have no valid ownership interest in the property, having transferred any interest in the property by written agreement. At no time was any lease agreement, either written or oral, entered into with [the LaMunyons] as [the LaMunyons] have no right to lease the property.” (Italics added.) R&H attorney Michael Kerbs signed the answer as Ms. Kelly’s attorney.
Ms. Kelly, through R&H, also filed a cross-complaint for declaratory relief against the LaMunyons in the UD action. Ms. Kelly alleged that “at no time has [she] ever entered into a lease agreement, whether oral or written, with [the LaMunyons].” She sought a judicial declaration that the LaMunyons had no valid claim to ownership in the property and that “no lease agreement was at any time entered into between [Marie Kelly] and [the LaMunyons].” Mr. Kerbs, for R&H, signed the cross-complaint as Ms. Kelly’s attorney.
In response to interrogatories served in the UD action, Marie Kelly stated under penalty of perjury that “no rental agreement ever existed between [her] and [the LaMunyons],” she “never entered into any lease agreement with [the LaMunyons],” and “there never was any agreement between [her and the LaMunyons].” She further stated that “[t]he only document representing an agreement is the sales agreement executed on behalf of [the LaMunyons] whereby their ownership interests were transferred to Scott Kelly and Colleen Bishop.” Mr. Kerbs prepared or assisted in the preparation of the interrogatory responses.
The trial in the UD action took place in June 2004. At the trial, Colleen Bishop testified that the bill of sale was the only written agreement she had with the LaMunyons. She further testified that she never agreed to rent the property from the LaMunyons, the LaMunyons never asked her to rent the property, and she was never present at a time when Marie Kelly agreed to rent the property from the LaMunyons. Marie Kelly testified that she never had any written agreement with anyone concerning the rental of the property.
Our record includes a notice of a ruling granting a motion brought by the Bishops and Mr. Kelly to consolidate the UD action and the underlying action. However, separate trials were conducted; the UD action was tried in 2004 and the underlying action in 2007.
The trial court found that the LaMunyons failed to sustain their burden of proving a landlord/tenant relationship with Ms. Kelly. In particular, the court explained that “[i]f Colleen Bishop or Scott Kelly or Randy Bishop came into possession of this property under a contract of sale, an unlawful detainer is not available as a matter of law.... There’s no evidence to the contrary.” In its statement of decision, the court indicated that it relied upon the fact that “Marie Kelly denied entering into any lease agreements with either plaintiff....” Judgment was entered in favor of Marie Kelly.
In July 2004, R&H filed a first amended complaint in the underlying action adding Randy Bishop as a plaintiff and a cause of action for quiet title against the law firm representing the LaMunyons, which had recorded a deed of trust against the property. The pleading is signed by Mr. Kerbs of R&H and verified by Colleen Bishop. The Bishops and Mr. Kelly alleged in this pleading that they claimed an interest in the property pursuant to the bill of sale. They sought specific performance of that agreement and the conveyance of the property, damages for breach of contract, and a judgment declaring that they were the owners in fee simple of the property.
The LaMunyons cross-complained against the Bishops, Scott Kelly, and Marie Kelly for quiet title. In the second amended cross-complaint, the LaMunyons alleged that they were the owners of the property and they orally agreed to rent the property to Marie Kelly. They further alleged that Colleen Bishop attempted to open negotiations for the purchase of the property in 2003 and, when the attempt failed, Ms. Bishop then claimed for the first time that she had purchased the property in 1995.
In their answer to the second amended cross-complaint, the Bishops and Kellys denied the allegations that the LaMunyons owned the property and denied that the LaMunyons rented the property to Marie Kelly. The answer is verified by Colleen Bishop and signed by Mr. Kerbs on behalf of R&H as attorneys for the Bishops and Kellys.
In connection with the underlying action, Scott Kelly and Colleen Bishop filed and recorded a lis pendens concerning the property. In April 2005, the LaMunyons filed a motion to expunge the lis pendens. The LaMunyons asserted that neither Patricia nor Steven LaMunyon signed the bill of sale. In opposing the motion, R&H asserted, on behalf of the Bishops and Kellys, that the bill of sale should be enforced as a contract for the purchase and sale of the property. Patricia LaMunyon, they argued, executed the bill of sale, and Steven LaMunyon is bound by the agreement based upon theories of estoppel and part performance. The court denied the motion to expunge, stating: “The difficult question is whether [the Bishops and Kellys] have borne their burden of proof to show a probability of success. After reviewing everything the court views that as a close question, but considers that the burden has been met, and that [the Bishops and Kellys] have a probability of success based upon the doctrines of part performance and equitable estoppel. Those doctrines serve as exceptions to the statute of frauds, which Steven LaMunyon is asserting as a defense.”
In the underlying action, Mr. Kerbs defended Colleen Bishop at her deposition. The LaMunyons’ counsel asked Ms. Bishop about the bill of sale and the property management agreement. She was asked if there were any other documents signed on the day these documents were signed. She said that there was a document pertaining to cable service. She was then asked again if there was anything else signed that day, to which she responded: “Not that I can remember.”
Trial in the underlying action took place in May and June 2007. During that trial, Colleen Bishop referred to “a rental agreement” between the LaMunyons’ attorney and Marie Kelly. The following colloquy between the LaMunyons and Ms. Bishop then took place:
“[LAMUNYONS’ ATTORNEY:] This is all news to me. Because you never testified in the unlawful-detainer trial about a rental agreement between the LaMunyons and your mother, did you?
“[COLLEEN BISHOP:] Not that I recall.
“[LAMUNYONS’ ATTORNEY:] In fact, you testified that there was no rental agreement between the LaMunyons and your mother; is that true?
“[COLLEEN BISHOP:] Yes.”
Although our record is not clear, it appears that there was then a break in the trial lasting approximately one month. When trial resumed, Ms. Bishop was cross-examined further regarding the rental agreement. It appears from her testimony that the rental agreement was attached at one time to the property management agreement. Her “law firm,” she testified, “has it as an attachment to [the property management agreement].” In response to an inquiry from the court, the R&H attorney representing Ms. Bishop in the trial stipulated that no attachments to the property management agreement were ever produced. Following some further inquiries about the rental agreement, the following took place:
“[THE COURT]: Do you know why you [Colleen Bishop] don’t have that—that rental agreement document?
“[COLLEEN BISHOP]: I had given copies to my attorney—my copy to the attorney when I first filed the—this action.
“[LAMUNYONS’ ATTORNEY]: And have you checked to see if your attorney has those documents?
“[COLLEEN BISHOP]: I think he does.
“[LAMUNYONS’ ATTORNEY]: Your Honor, may I inquire of Mr. Katz if he’s withholding documents?
“THE COURT: I will. [¶] Mr. Katz, do you have such a document?
“MR. KATZ: I do, your Honor.
“THE COURT: Along the same principles to where the Court can... say that somebody’s a witness, even if they’re just hanging around the courthouse, is there some reason why I shouldn’t ask you to produce that document?
“MR. KATZ: Not that I can think of.
“THE COURT: Okay. Then produce it to [the LaMunyon’s attorney], please.”
Mr. Katz gave the rental agreement to the LaMunyons’ attorney in the courtroom. The LaMunyons’ attorney then questioned Ms. Bishop regarding the document as follows:
“[LAMUNYONS’ ATTORNEY]: Is that the document you’re referring to?
“[COLLEEN BISHOP]: Yes.
“[LAMUNYONS’ ATTORNEY]: And that document, when... did you draw that document?
“[COLLEEN BISHOP]: I drew it on the same day, June 19, 1995.
“[LAMUNYONS’ ATTORNEY]: You prepared that document?
“[COLLEEN BISHOP]: Yes, I did.
“[LAMUNYONS’ ATTORNEY]: Up until the time of this lawsuit, that document has always been in your possession; is that true?
“[COLLEEN BISHOP]: No, not me personally.
“[LAMUNYONS’ ATTORNEY]: Who had it?
“[COLLEEN BISHOP]: My attorney. First with Giardinelli, and then his files were transferred to this law firm.
“[LAMUNYONS’ ATTORNEY]: And Mr. Kerbs’[s] office had that at the time this lawsuit was processed; is that true?
“[COLLEEN BISHOP]: Yes.
“[LAMUNYONS’ ATTORNEY]: And Mr. Kerbs’[s] office had that document at all times throughout the unlawful-detainer trial?
“[COLLEEN BISHOP]: Yes.
“[LAMUNYONS’ ATTORNEY]: And you knew that they had it?
“[COLLEEN BISHOP]: Huh, yes....”
Ms. Bishop also testified that the property management agreement had been in the possession of R&H throughout the pendency of the lawsuit and that she had not produced the documents in the litigation. She stated that when she was asked questions in the UD action about a rental agreement between the LaMunyons and Marie Kelly, she denied the existence of such an agreement. The LaMunyons’ counsel also read into the record the testimony of Marie Kelly given in the trial of the UD action in which Ms. Kelly denied ever having a written agreement concerning the rental of the property.
In response to questions from an R&H attorney, Ms. Bishop explained that the rental agreement “that supported the Property Owners Association form was not intended to be binding. The Association, in order to give a boat decal or car decals, requires a one-year lease signed by the title holder of a property.” She further stated that she never denied the existence of the document, and that she “made... up” the $400 per month rental amount stated in the rental agreement.
Prior to the conclusion of the trial, the court issued the following ruling: “The court having previously continued defendants [sic] motion to expunge lis pendens, and evidence on the title issues now being closed, that motion is hereby granted.” (Capitalization omitted.)
Following trial, the court found in favor of the LaMunyons and against the Bishops and Mr. Kelly as to all claims asserted in the underlying action. The judgment stated that “the allegations and facts set forth and contained in the Second Amended Cross-Complaint for Quiet Title are true....”
In the underlying action, the LaMunyons were awarded attorney fees pursuant to section 2033.420 on the ground that the Bishops and Mr. Kelly unreasonably failed to admit certain requests for admission. The Bishops and Mr. Kelly appealed from that order. We affirmed the court’s order in an unpublished opinion. (Kelly v. LaMunyon (Apr. 23, 2009, E044897) [nonpub. opn.].)
In May 2008, the LaMunyons filed the complaint in this case. They alleged facts substantially as set forth above. They further alleged that the Kellys, the Bishops, and R&H acted without probable cause in initiating and continuing the prosecution of the underlying action because, among other reasons, they “had knowledge of, and possession of, exculpatory evidence, which was hidden from [the LaMunyons] and the Court, and false testimony concerning the existence of such exculpatory evidence was, both in discovery, and at trial, knowingly elicited, and presented, under oath, as true.”
The LaMunyons further alleged that the defendants did not have “a subjective belief that the claims stated against [the LaMunyons] merited litigation or were tenable”; if they did have such a subjective belief, it was not objectively reasonable. Furthermore, “any such belief could not continue to be held in light of the possession, at all times, by the [Bishops, Kellys, and R&H] of documents demonstrating to [them] the frivolousness and maliciousness of their prosecution. In addition, [the Bishops, Kellys, and R&H] proceeded to trial, in the Underlying Action, knowing that the allegations in the [Underlying Action] Complaint were false.”
Finally, the LaMunyons allege that defendants acted maliciously in filing and prosecuting the underlying action, and that the LaMunyons suffered damages as a proximate result thereof.
In addition to the cause of action for malicious prosecution, the LaMunyons assert causes of action against the Kelly and Bishop defendants for rent, waste, and for an order setting aside and vacating the judgment in the UD action.
B. The Anti-SLAPP Motion
R&H filed their anti-SLAPP motion in August 2008. In support of the motion, R&H submitted declarations by the three R&H attorneys named as individual defendants—Michael Kerbs, Daniel Katz, and Douglas Plazak. The declarations are substantially identical, with each declarant stating he did not “act with malice”; it was his “duty to assert [his] clients’ position based upon the law, and the facts as [he] understood them to be true”; and he “never harbored any ill will toward the LaMunyons and every act [he] took during the lawsuit was solely to attempt to obtain judgment in favor of [his] clients on claims which [he] believed to be tenable.” (Capitalization omitted.) Each declarant concludes with the statement: “Simply put, I was just doing my job of litigating the Underlying Lawsuit.” The motion was also supported by a request for judicial notice of numerous documents filed in the underlying action, portions of the reporter’s transcript of the trial in the underlying action, and the complaint in this case. The LaMunyons filed written objections to most of the items for which R&H sought judicial notice.
The LaMunyons filed an opposition to the motion, which was supported by declarations from the LaMunyons’ attorneys, D. Scott Doonan and Daniel J. Doonan, and a request for judicial notice of certain documents filed in the UD action and the underlying action and portions of the reporters’ transcripts in those lawsuits. In their declarations, the Doonans described a telephone conversation with Colleen Bishop that took place on September 22, 2008. According to the Doonans, Ms. Bishop “acknowledged... that she had perjured herself on the witness stand when she lied about the existence of the lease agreement between Plaintiffs LaMunyon and Marie Kelly and intentionally suppressed the lease agreement, but that she committed perjury and intentionally suppressed the lease agreement, at the direct instruction and counsel of Michael Kerbs of [R&H].” Ms. Bishop further told the Doonans that R&H “had the lease document and knew of its existence prior to the perjured testimony at the unlawful detainer proceedings.”
Attached to Daniel J. Doonan’s declaration are copies of various documents served or filed in the UD action and the underlying action. Daniel J. Doonan identified each of the documents attached to his declaration and stated that they were true and correct copies of what they appeared to be. Judicial notice was also requested of most of these documents.
R&H filed a reply memorandum of points and authorities and objections to the LaMunyons’ evidence. R&H objected to the statements in the Doonan declarations regarding the telephone conversation with Colleen Bishop on hearsay grounds. R&H also objected to Daniel J. Doonan’s authentication of certain documents filed or served in the UD action on the ground that the documents were not relevant because this action does not arise from the UD action.
The LaMunyons contend that although the statements attributed to Ms. Bishop are hearsay, they are admissible as declarations against interest pursuant to Evidence Code section 1230.
At the hearing on the motion, the following occurred regarding the evidentiary objections:
“[THE COURT]: The court will sustain the objections to the declarations of D. Scott Doonan and—Is there another—Were there two Doonan declarations?
“[COUNSEL FOR R&H]: I believe there is also a Daniel Doonan.
“THE COURT: All right. I’ll sustain... the objection to both of those declarations. However, with regard to the request for judicial notice I’ll grant the request for judicial notice.”
Substantial portions of the parties’ briefs are devoted to issues concerning the interpretation of the trial court’s evidentiary ruling, our standard of review of that ruling, and the correctness of the ruling. Because we will conclude that R&H’s representation of their clients is protected under the anti-SLAPP statute and that the LaMunyons have failed to establish a probability of prevailing even if the evidence they submitted is admissible, we need not address issues regarding the evidentiary objections.
C. The Trial Court’s Ruling on the Anti-SLAPP Motion
Prior to oral argument, the trial court gave the following reasons for its tentative decision to deny the motion: “The defendants are not entitled to the protection of... Section 425.16, that is, in furtherance of their rights to petition and free speech under the Constitution, because there is at a minimum an inference that the defendants withheld information [from] the court. There were rulings based upon whether or not a lease existed. The testimony of Miss Bishop is that her attorneys, Mr. Kerbs and then Mr. Katz, had this document from the inception, that she was not in possession of this lease. And this action had been going on for years.... And in open court she testified that although she did not have the lease, her attorneys had had the lease from the inception. Now, that doesn’t mean that that is true. But what that means, at a minimum, the law firm had the lease in their possession at the time of the hearing in court and produced it to the judge at the time. So it’s obvious that they had it at the time of the hearing, and an inference can be made that they had this lease sometime—for some time, maybe from the inception. That is one inference that could be made. And we’ll save that for another day. But based upon the transcript testimony that the court has taken judicial notice of, certainly defendants are not entitled to the protection of a SLAPP motion where a crucial salient piece of evidence was in the possession of the law firm, knowing that it was an important piece of evidence.” Following argument, the court denied the motion without further explication.
III. ANALYSIS
A. Anti-SLAPP Principles and Standard of Review
The anti-SLAPP statute, section 425.16, provides, in part: “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).) An “‘act in furtherance of a person’s right of petition or free speech... in connection with a public issue’” “includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 426.16, subd. (e).)
The statute was enacted “to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ [Citation.] Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘“to prevent SLAPPs by ending them early and without great cost to the SLAPP target”’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.] In doing so, section 425.16 seeks to limit the costs of defending against such a lawsuit. [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
The statute establishes a “two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88, § 425.16, subd. (b)(1).) “[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘“stated and substantiated a legally sufficient claim.”’ [Citations.] ‘Put another way, the plaintiff “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 is credited.”’ [Citations.] [¶] Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten, supra, at pp. 88-89.)
On appeal, we independently review the evidence supporting both prongs of the analysis. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 [Fourth Dist., Div. Two].)
B. First Prong: The Cause of Action Must Arise from Protected Activity
Under the first prong of the anti-SLAPP statute, we must determine whether R&H has made a threshold showing that the challenged cause of action arises from an act in furtherance of their right of petition or free speech. (§ 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Our “focus is not the form of the plaintiff’s cause of action, but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 92.) If the cause of action involves both constitutionally protected and unprotected conduct, we must determine the “principal thrust or gravamen” of the cause of action. (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 413-414.) “We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct... that provides the foundation for the claim.’ [Citation.]” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1727.)
The injury-producing conduct giving rise to a malicious prosecution action is the commencement or maintenance of a lawsuit without probable cause and with malice. (See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; Zamos v. Stroud (2004) 32 Cal.4th 958, 973 (Zamos); see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 (Jarrow) [“By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.”].) Such a lawsuit harms the defendant “because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Bertero v. National General Corp., supra, at pp. 50-51.) Even if a lawsuit was tenable when it was commenced, maintaining a lawsuit after the attorney discovers it to be baseless harms the defendant just as much as the initiation of an action known to be baseless from the outset. (Zamos, supra, at p. 969.) It is thus the act of commencing or maintaining a baseless action with malice that causes harm and gives rise to the tort of malicious prosecution.
R&H claims their representation of the Bishops and Mr. Kelly in the underlying action falls within the statutory category of protected activity that includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (§ 426.16, subd. (e).) The representation of the Bishops and Mr. Kelly in the underlying action indisputably involved written and oral statements before judicial proceedings. We agree with R&H that the communicative actions of attorneys in representing clients prosecuting a civil action generally constitutes protected activity under the anti-SLAPP statute. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.) Moreover, California courts have held that anti-SLAPP protection is generally available to both litigants and their attorneys who are subsequently sued for malicious prosecution. (Jarrow, supra, 31 Cal.4th at p. 741; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017 (Paiva); Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088.)
The LaMunyons argue that a rule that the representation of litigants necessarily constitutes protected activity “is too simplistic an approach,” and that conduct by an attorney in connection with representing litigants is not necessarily protected. There is support for this argument. (See, e.g., California Back Specialists Medical Group v. Rand, supra, 160 Cal.App.4th at p. 1037 [“Not all attorney conduct in connection with litigation, or in the course of representing clients, is protected by section 425.16.”].) However, the substance of the LaMunyons’ cause of action is that R&H maintained the underlying action on behalf of the Bishops and Mr. Kelly when there was no probable cause to do so and that they did so with malice. Such representation involved litigation before the superior court, including a court trial, over the course of several years. Even if representing litigants is not necessarily protected activity in every case, the making of written or oral statements “before a... judicial proceeding” (§ 426.16, subd. (e)) was essential to R&H’s representation of their clients in the underlying action, thus bringing the conduct within at least one category of protected activity under the anti-SLAPP statute. (See California Back Specialists Medical Group v. Rand, supra, at p. 1037; Jarrow, supra, 31 Cal.4th at pp. 734-735; Paiva, supra, 168 Cal.App.4th at p. 1017.)
The LaMunyons next contend R&H is not entitled to the protection of the statute because they suborned the perjury of their clients and illegally concealed evidence at trial. Indeed, a defendant whose actions would otherwise be considered protected activity is not entitled to the protection of the anti-SLAPP statute if the defendant’s assertedly protected activity is illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p. 317; Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1362-1363.) Such illegality must be either conceded by the defendant or be conclusively established by the evidence. (Flatley, supra, at p. 320.) It is not enough that the conduct is merely alleged to be unlawful. (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1545.)
The trial court stated that R&H was not protected by the anti-SLAPP statute because there was “at a minimum an inference that the defendants withheld information [from] the court.” To the extent the trial court determined that R&H’s conduct was not protected activity due to its illegality, the court applied an incorrect standard. There must be more than an inference of illegality; the illegality of the conduct must be either conceded by the defendant or conclusively established by the evidence. Nevertheless, because we review the matter de novo, we are concerned with the court’s ruling, not its rationale.
Subornation of perjury is a crime. (Pen. Code, § 127.) So is the willful concealment of documentary evidence with the intent to prevent it from being produced. (Id., § 135.) If it was either conceded or conclusively established that R&H suborned perjury or criminally withheld the rental agreement, such activity would not constitute protected activity for purposes of the anti-SLAPP statute; and if California law permitted the LaMunyons to sue for damages caused by such activity and the LaMunyons were asserting such a cause of action, then R&H’s motion would need to be denied. However, even if the alleged illegal activity was conceded or conclusively established, California law does not permit civil actions for subornation of perjury or wrongfully withholding evidence. (See, e.g., Taylor v. Bidwell (1884) 65 Cal. 489, 490 [no civil action for suborning perjury]; Agnew v. Parks (1959) 172 Cal.App.2d 756, 765-766 [no civil action for suborning perjury or for concealing or withholding evidence]; Legg v. Ford (1960) 185 Cal.App.2d 534, 543 [no civil action for subornation of perjury]; see also Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 9-10; Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 472.) Thus, to the extent the LaMunyons’ malicious prosecution cause of action could be characterized as an action for damages caused by such conduct, they would not be entitled to relief on that basis. The LaMunyons’ complaint, therefore, must be construed not as an action for suborning perjury or criminally withholding evidence, but as an action for prosecuting the Bishops and Mr. Kelly’s civil action without probable cause and with malice. Initiating or maintaining the underlying action, with or without probable cause or malice, is not a crime.
Penal Code section 135 provides: “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.”
This is not to say that evidence that R&H allegedly concealed the rental agreement or suborned perjury regarding the existence of the agreement is irrelevant to the LaMunyons’ claim. In order to prove that the underlying action was brought with malice, the LaMunyons will need to prove actual ill will or an improper ulterior motive. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291; Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494.) As discussed below, the purported evidence that R&H engaged in criminal acts to prevent the disclosure of the rental agreement arguably bears upon the existence of malice. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 (Sheldon).) However, while such evidence could be relevant to establishing the malice element of the LaMunyons’ malicious prosecution claim, such conduct cannot constitute the basis or gravamen of the cause of action. To hold otherwise would permit a party to avoid the bar against lawsuits for suborning perjury or concealing evidence merely by labeling the cause of action as one for malicious prosecution. (See Carden v. Getzoff (1987) 190 Cal.App.3d 907, 915 [demurrer sustained because claims, though labeled by other legal theories, were essentially for damages caused by the defendant’s perjury].)
The cases relied upon by the LaMunyons are distinguishable. In Flatley, the defendant, attorney D. Dean Mauro, sent the plaintiff, Michael Flatley, a “demand letter” on behalf of a woman who claimed Flatley had raped her. (Flatley, supra, 39 Cal.4th at p. 305.) Mauro also made telephone calls to Flatley’s attorneys, demanding a seven-figure payment to settlement the claims. (Ibid.) Flatley sued Mauro for civil extortion and other claims based on these actions. (Ibid.) Mauro filed an anti-SLAPP motion claiming that his actions were constitutionally protected speech. (Ibid.) The California Supreme Court disagreed and held that the alleged conduct, which was undisputed, constituted extortion as a matter of law and was therefore not protected activity for purposes of the anti-SLAPP statute. (Id. at pp. 305, 332-333.)
Flatley is distinguishable because the defendant in that case committed the crime of extortion against the plaintiff and the plaintiff sued to recover damages caused by the extortion; the lawsuit was based directly upon the defendant’s criminal activity. Here, by contrast, the alleged criminal acts—suborning perjury and withholding evidence—cannot give rise to civil liability under California law and therefore do not give rise to the LaMunyons’ lawsuit for purposes of the anti-SLAPP statute. Although such criminal activity, if it occurred, may be relevant to proving an action for malicious prosecution, it is not the basis of the LaMunyons’ action. Nor does it matter that the discovery of the alleged criminal conduct may have motivated or prompted the LaMunyons’ to sue R&H. (Cf. City of Cotati v. Cashman, supra, 29 Cal.App.4th at p. 78 [“That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.”].)
In Cohen v. Brown (2009) 173 Cal.App.4th 302, the plaintiff asserted causes of action, including a cause of action for extortion, arising from the defendant’s filing of a complaint with the State Bar. (Id. at p. 316.) The Court of Appeal, relying entirely on Flatley, held that the defendant’s action with respect to the filing of the State Bar complaint constituted extortion and was therefore not protected activity under the anti-SLAPP statute. (Cohen v. Brown, supra, at p. 318.) Cohen is distinguishable from the present case for the same reason Flatley is distinguishable.
In Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, the plaintiffs sued a corporation formed for the purpose of supporting an international campaign to expose the plaintiffs’ abusive treatment of animals. (Id. at p. 1288.) The plaintiffs sought injunctive relief against the defendant based on claims that the individuals acting for the defendant engaged in various acts of unlawful harassment, threats, trespass, and property destruction. (Id. at pp. 1289-1293.) The defendant claims that its activities were protected acts of free speech. (Id. at p. 1296.) The Court of Appeal disagreed, stating: “[T]he evidence conclusively establishes that the activities described at length in the complaint, and about which there is no dispute, are illegal as a matter of law.” (Ibid.) Novartis is distinguishable because the causes of action asserted by the plaintiffs in that case indisputably arose directly from the unlawful actions of the defendant. For the reasons stated above, the same is not true here.
Because the LaMunyons’ cause of action for malicious prosecution as to R&H is based upon the act of maintaining the underlying lawsuit, and does not arise from the assertedly illegal conduct for purposes of the anti-SLAPP statute, R&H has satisfied the first prong of that statute.
The parties devote extensive discussion in their briefs to the question whether the evidence establishes that R&H illegally suborned perjury or unlawfully withheld the rental agreement. Because we hold that the LaMunyons’ cause of action does not arise out of such alleged activity, we do not decide that issue.
C. Second Prong: Probability of Success
It appears from our record that the trial court, having determined that R&H did not satisfy their burden on the first prong of the anti-SLAPP analysis, did not reach the second prong. In similar situations, reviewing courts have proceeded to address the second prong. (See, e.g., Jarrow, supra, 31 Cal.4th 728; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.)
To satisfy the second prong of the anti-SLAPP statute, the LaMunyons need to demonstrate that their claim is both legally sufficient and supported by evidence which, if credited, supports a sufficient prima facie showing of facts to sustain a favorable judgment. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) “For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ [Citation.] In making this assessment it is ‘the court’s responsibility... to accept as true the evidence favorable to the plaintiff....’ [Citation.] The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291.)
In order to prove malicious prosecution, a plaintiff must establish that a prior action was: (1) commenced by the defendant against the plaintiff and pursued to a legal termination in the plaintiff’s favor; (2) brought without probable cause; and (3) initiated with malice. (Bertero v. National General Corp., supra, 13 Cal.3d at p. 50; Paiva, supra, 168 Cal.App.4th at p. 1018.) A malicious prosecution action against a defendant attorney will also lie even if the action was initiated with probable cause if the attorney thereafter discovers the lack of probable cause and continues to prosecute the action. (Zamos, supra, 32 Cal.4th at p. 973.) The cause of action has been described as “a disfavored one because it may deter judicial resolution of differences.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131; see also Sheldon, supra, 47 Cal.3d at p. 872.)
Initially, we note that there is no dispute that the Bishops and Mr. Kelly commenced the underlying action and that the action was pursued to a judgment in the LaMunyons’ favor. Although R&H did not represent the Bishops and Mr. Kelly when the action was commenced, they did substitute in as their counsel and filed the controlling pleading—a first amended complaint—on behalf of their clients. R&H does not contend they can avoid liability for malicious prosecution based on the fact they did not represent the Bishops and Mr. Kelly at the outset.
The disputed elements are probable cause and malice. As to malicious prosecution claims asserted against attorneys, the lack of probable cause is established only if no reasonable attorney would have thought the underlying claims were tenable. (Sheldon, supra, 47 Cal.3d at pp. 885-886.) Such tenability must be determined based upon the facts known to the attorney. (Id. at p. 878; Zamos, supra, 32 Cal.4th at p. 971.) This is “a low threshold designed to protect a litigant’s right to assert arguable legal claims even if the claims are extremely unlikely to succeed.” (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047; see also Paiva, supra, 168 Cal.App.4th at p. 1019 [counsel have a right to present issues that are arguably correct, even if it is extremely unlikely they will win].) Whether there was probable cause for initiating or maintaining the action is a question of law for the court to decide. (Sheldon, supra, at p. 875; Zamos, supra, at p. 971.) In resolving this question, the court applies an objective standard; we are not concerned with “whether the attorney subjectively believed that the prior claim was legally tenable.” (Sheldon, supra, at p. 881; see also Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 292.)
R&H argues that the existence of probable cause was established when the trial court denied the LaMunyons’ motion to expunge the lis pendens in the underlying action. They rely primarily upon Fleishman v. Superior Court (2002) 102 Cal.App.4th 350 (Fleishman), in which David Fleishman sued attorney Chester Salisbury for malicious prosecution. In the underlying case, Salisbury obtained a preliminary injunction in favor of his client and against Fleishman. (Id. at p. 353.) After Salisbury’s client subsequently dismissed the lawsuit against Fleishman, Fleishman sued Salisbury for malicious prosecution. (Id. at p. 354.) The Court of Appeal held that Fleishman’s malicious prosecution action failed as a matter of law because the granting of the preliminary injunction conclusively established probable cause for bringing the underlying action. (Id. at pp. 353, 359.)
R&H contends the trial court’s denial of the LaMunyons’ motion to expunge the lis pendens constitutes a ruling on the merits analogous to the preliminary injunction ruling in Fleishman. Indeed, the trial court expressly ruled that the Bishops and Mr. Kelly “have a probability of success based upon the doctrines of part performance and equitable estoppel.” Just as the preliminary injunction in Fleishman established probable cause for the action in that case, R&H argues, so does the ruling on the motion to expunge in this case.
As the LaMunyons point out, however, the Fleishman court’s holding is based in part upon the absence of any evidence in that case that the preliminary injunction “was obtained by fraud or perjury.” (Fleishman, supra, 102 Cal.App.4th at p. 357; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 820; Paiva, supra, 168 Cal.App.4th at pp. 1025-1026.) At the time of the initial ruling on the motion to expunge in the underlying case, the trial court was unaware of any rental agreement. Indeed, in opposing the motion to expunge, R&H relied upon the statement of decision in the UD action and the trial court’s finding that there was no landlord/tenant relationship between the parties—a finding that was based in part upon Marie Kelly’s testimony that there was no rental agreement with the LaMunyons. Moreover, in ruling on the motion to expunge, the trial court expressly found the issue of the probability of success to be a “difficult question” and a “close question.” Indeed, after the rental agreement was produced at trial, the court stated that it had “previously continued” the LaMunyons’ motion to expunge, then granted the motion. We thus agree with the LaMunyons that Fleishman is distinguishable and that the trial court’s initial denial of the motion to expunge does not necessarily establish probable cause under the circumstances in this case.
We nevertheless conclude that the LaMunyons have failed to satisfy their burden of showing a probability of success on the merits. Viewing the evidence in a light favorable to the LaMunyons, it appears from our record that R&H maintained the underlying action with knowledge of the bill of sale, the property management agreement, and the rental agreement. According to Colleen Bishop, the parties entered into an agreement for the sale of the property, which was memorialized in the bill of sale. The R&H attorneys were entitled to rely on information provided to them by their client. (See Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512-513.) Ms. Bishop also stated that the Bishops and Kellys thereafter paid the mortgage payments and other expenses in accordance with the agreement. Although Steven LaMunyon did not sign the bill of sale, thus implicating a statute of frauds defense, Ms. Bishop supplied evidence that supported theories of equitable estoppel and part performance, which provided legitimate, plausible arguments for overcoming Mr. LaMunyon’s statute of frauds defense. (See 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, §§ 402-405, pp. 441-445.)
The theory of equitable estoppel was supported by Colleen Bishop’s statements that she had spoken to Steven LaMunyon about the bill of sale and that he acknowledged the agreement and never attempted to disavow it. The theory of part performance is supported by Ms. Bishop’s declaration that she paid the mortgage, taxes, homeowner association dues, utility expenses, and repair and maintenance expenses in reliance upon and pursuant to the agreement to purchase the property.
The rental agreement does not conflict with the Bishops and Kelly’s view of the case. According to Ms. Bishop, the written rental agreement was not intended by either side to create a legally binding agreement. Rather, the purpose of the written rental agreement was to provide the property owners association with evidence of a lease so that Marie Kelly could have access to the gated community. This interpretation of the rental agreement is supported by the fact that the terms of the rental agreement bear no similarity to the alleged oral agreement that was central to the LaMunyons’ claims. The oral agreement described by the LaMunyons calls for the payment of rent by paying the mortgage payments and association dues in an amount equal to $1,201 per month, with the tenant being responsible for maintenance, upkeep, and repairs to the property. The written rental agreement provides for monthly rent of $400 and makes no mention of paying the mortgage and association dues, or the tenant’s responsibility for maintenance, upkeep, or repairs. The LaMunyons never asserted that the rental agreement reflected or memorialized the terms of the alleged oral agreement they relied upon.
Viewed in this way, a reasonable attorney could conclude that the rental agreement is not inconsistent with the Bishops and Mr. Kelly’s position in the underlying case. The Bishops and Mr. Kelly sued the LaMunyons for specific performance of the bill of sale and for breach of contract. Although they contended they were entitled to complete the purchase of the property, they did not claim they held legal title to the property at the time the bill of sale and rental agreement were signed. That is, as alleged purchasers under the bill of sale, they claimed an interest in the property and the right to acquire legal title when conditions to the sale, including the tender of the purchase price, were fulfilled; it was not until years later that they claimed to have fulfilled, or were excused from fulfilling, the requisite conditions and sought to have legal title transferred to them. In the meantime, regardless of who owned the property, everyone agreed that Marie Kelly could live on the property. Ms. Kelly would need permission from the property owners association to gain access to the community, which, according to Ms. Bishop, required evidence of a lease from the legal title holder—i.e., the LaMunyons. That is, even if the Bishops and Mr. Kelly acquired an equitable or beneficial interest in the property under the bill of sale, they still could not execute a lease as the legal title holder. They would need the LaMunyons (or at least Patricia LaMunyon) to execute a lease in order for Ms. Kelly to obtain permission to gain access to the community. The rental agreement fulfilled this purpose. Thus, although the written rental agreement, by describing the LaMunyons as “landlord,” may appear at first glance to be inconsistent with the Bishops and Mr. Kelly’s position that they held an interest in and had a right to own the property, a reasonable attorney would likely conclude that it was not inconsistent with the Bishops and Mr. Kelly’s claims.
Prior to the transfer of legal title, the purchaser of real property under a purchase and sale agreement is said to have “equitable title” and a “beneficial interest” in the property. (RC Royal Development and Realty Corp. v. Standard Pacific Corp. (2009) 177 Cal.App.4th 1410, 1419.) Indeed, if the purchaser of land under an executory contract takes possession of the land, he or she “is for all purposes the owner and the vendor retains mere legal title.” (Elliott v. McCombs (1941) 17 Cal.2d 23, 31.)
For all these reasons, we hold that a reasonable attorney with knowledge of the facts known to R&H concerning the underlying action, including knowledge of the rental agreement, would not conclude that the claims asserted by the Bishops and Mr. Kelly against the LaMunyons were untenable.
The purported evidence of R&H’s concealment of the rental agreement and alleged suborning of perjury does not alter this conclusion. A determination of probable cause depends upon the state of the defendant attorney’s knowledge of the facts concerning the claims. (Sheldon, supra, 47 Cal.3d at p. 881.) Thus, as we indicate above, the fact that R&H knew of the existence of a rental agreement that provided for $400 in rent is relevant to determining whether a reasonable attorney with the same knowledge would believe the clients’ claims were tenable. In determining whether probable cause exists, however, we distinguish such knowledge from the defendant’s intent or belief regarding the tenability of the case. The Sheldon court addressed the “importance of [this] distinction” when it explained: “‘The want of probable cause... is measured by the state of the defendant’s knowledge, not by his intent. It means the absence of probable cause known to the defendant when he instituted the suit. But the standard applied to defendant’s consciousness is external to it. The question is not whether he thought the facts to constitute probable cause, but whether thecourt thinks they did.’ [Citation.]” (Ibid.)
The purported fact that R&H concealed the rental agreement arguably indicates that the attorneys believed that the document weakened their clients’ case. As such, the alleged conduct is a fact that bears upon R&H’s belief about the tenability of the claims, not the objective tenability of the claims themselves. Although evidence of the defendant’s subjective belief about the tenability of the claims may be relevant to the question of malice, such evidence does not bear directly upon the issue of probable cause. (Sheldon, supra, 47 Cal.3d at p. 881.)
Finally, even if the LaMunyons provided evidence of a sufficient showing of malice, the objective tenability of the Bishops and Mr. Kelly’s claim precludes their action. Again, Sheldon is instructive: “If a court finds that the initial lawsuit was in fact objectively tenable, the court has determined that the fundamental interest which the malicious prosecution tort is designed to protect—‘the interest in freedom from unjustifiable and unreasonable litigation’ [citation]—has not been infringed by the initial action. Under such circumstances, it is not unfair to bar a plaintiff’s suit for damages even if the plaintiff can show that its adversary’s law firm did not realize how tenable the prior claim actually was, since the plaintiff could properly have been put to the very same burden of defending an identical claim if its adversary had simply consulted a different, more legally astute, attorney. This is a classic case of ‘no harm, no foul.’” (Sheldon, supra, 47 Cal.3d at p. 882.) Applying this rationale here, even if we assume that R&H concealed the rental agreement, the LaMunyons could properly have been put to the very same burden of defending the Bishops and Mr. Kelly’s claims if the Bishops and Mr. Kelly had been represented by attorneys who did not conceal the rental agreement. Thus, the conduct of the R&H attorneys, even if sufficient to establish the element of malice, does not affect our conclusion that, from an objective viewpoint, there was probable cause to assert the underlying claims and, therefore, the LaMunyons have failed to establish the requisite probability of success as to their malicious prosecution action against R&H.
D. Conclusion
Because R&H’s representation of the Bishops and Mr. Kelly in the underlying action is protected activity under the anti-SLAPP statute and the LaMunyons have failed to satisfy their burden of showing a probability of prevailing on their malicious prosecution claim, the trial court erred in denying R&H’s special motion to strike the complaint.
As a prevailing defendant, R&H is entitled to recover their reasonable attorney fees and costs. (§ 425.16, subd. (c).) Such an award is “mandatory.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Accordingly, R&H shall be awarded their reasonable costs and attorney fees incurred in connection with the motion. (See Paiva, supra, 168 Cal.App.4th at p. 1038.)
IV. DISPOSITION
The order denying R&H’s special motion to strike the complaint is reversed. The trial court is directed to enter a new order granting that motion and to conduct proceedings as appropriate to determine an award of costs and reasonable attorney fees pursuant to section 425.16, subdivision (c).
R&H is awarded its costs on appeal.
We concur: McKinster, Acting P.J., Gaut, J.