Opinion
D078447
01-13-2022
ALEX MRAZEK, Plaintiff and Appellant, v. [REDACTED] et al., Defendants and Respondents.
Contreras Law Firm, Dolores A. Contreras and Andrew R. Stilwell for Plaintiff and Appellant. Garcia Hong Law, Pauline E. Villanueva and Valerie Garcia Hong for Defendant and Respondent [REDACTED]. Pashall Law and Patrick D. Paschall for Defendants and Respondents Stark & D'Ambrosio, LLP, James A. D'Ambrosio and George A. Rios III.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2020-00012319-CU-NP-CTL, Carolyn M. Caietti, Judge.
Contreras Law Firm, Dolores A. Contreras and Andrew R. Stilwell for Plaintiff and Appellant.
Garcia Hong Law, Pauline E. Villanueva and Valerie Garcia Hong for Defendant and Respondent [REDACTED].
Pashall Law and Patrick D. Paschall for Defendants and Respondents Stark & D'Ambrosio, LLP, James A. D'Ambrosio and George A. Rios III.
AARON, Acting P. J.
I.
INTRODUCTION
In the underlying action in this matter, Mrazek v. [REDACTED] (Super. Ct. San Diego County, 2019, No. 37-2018-00037257-CU-BC-CTL) (Underlying Action), [REDACTED] brought a cross-complaint against her former boyfriend, Alex Mrazek. Among other causes of action, [REDACTED] alleged a breach of contract cause of action pursuant to Marvin v. Marvin (1976) 18 Cal.3d 660 (Marvin) premised on Mrazek's alleged promise to share with [REDACTED] the increase in the value of certain real property that Mrazek owned in exchange for [REDACTED]'s providing household services and companionship. The trial court entered a statement of decision and a judgment in favor of Mrazek on the cross-complaint.
In this action, in a first amended complaint, Mrazek brought a malicious prosecution cause of action against [REDACTED]. Mrazek asserted a separate malicious prosecution cause of action against James D'Ambrosio, George Rios III, and Stark & D'Ambrosio, LLP (Attorney Defendants), [REDACTED]'s attorneys in the Underlying Action. Mrazek also brought negligence and unfair competition causes of action against the Attorney Defendants.
We refer to [REDACTED] and the Attorney Defendants collectively as "Defendants."
[REDACTED] and the Attorney Defendants each filed a special motion to strike all of the causes of action alleged against them pursuant to the anti-SLAPP statute (Code Civ. Proc, § 425.16) (anti-SLAPP motion). The trial court granted the anti-SLAPP motions in their entirety and dismissed this action.
"SLAPP" stands for Strategic Lawsuit Against Public Participation. (SeeEquilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
On appeal, Mrazek contends that the trial court erred in concluding that his negligence and unfair competition causes of action against the Attorney Defendants are based on activity protected by the anti-SLAPP statute. Specifically, Mrazek contends that his negligence cause of action is based on the Attorney Defendants' failure to conduct a reasonable investigation prior to filing the Underlying Action and that his unfair competition cause of action is based on the Attorney Defendants' routine failure to investigate their clients' cases before filing litigation. Mrazek further maintains that he demonstrated a probability of prevailing on both his negligence and unfair competition causes of action. Mrazek also claims that the trial court erred in concluding that he failed to demonstrate a probability of prevailing on his malicious prosecution causes of action against the Attorney Defendants and [REDACTED]. Specifically, he contends that he presented a prima facie case that the Defendants lacked probable cause to bring and maintain a breach of contract cause of action in the Underlying Action based on Marvin. Mrazek also contends that he demonstrated that he could establish that the Defendants prosecuted the Underlying Action with malice.
We conclude that the trial court properly determined that all of Mrazek's causes of action arise from protected activity under the anti-SLAPP statute, i.e., the filing of the Underlying Action. We further conclude that Mrazek's negligence and unfair competition causes of action fail as a matter of law. Finally, we conclude that Mrazek failed to demonstrate a probability of prevailing on his malicious prosecution causes of action against either the Attorney Defendants or [REDACTED]. Accordingly, we affirm the order in its entirety.
In their respondent's brief, the Attorney Defendants request that we award them attorney fees incurred on appeal. The law is clear that a prevailing defendant on an anti-SLAPP motion is entitled to an award of appellate attorney fees. (See e.g., Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499 (Evans).) Accordingly, we remand the matter to the trial court with directions to award Defendants attorney fees incurred on appeal, in an amount to be determined by the trial court.
While [REDACTED] did not specifically request a remand for this purpose in her brief on appeal, she is entitled to such fees as a matter of law. On remand, the trial court shall determine the amount of appellate attorney fees to which [REDACTED] is entitled.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Action
1. Mrazek's first amended complaint
Mrazek filed a first amended complaint against [REDACTED] in the Underlying Action alleging a single cause of action for breach of contract and seeking the repayment of a loan that he made to her during their relationship. Mrazek sought damages in excess of $25,000 and attorney fees.
2. [REDACTED]'s cross-complaint
[REDACTED] filed a cross-complaint in the Underlying Action. In the cross-complaint, [REDACTED] alleged in relevant part:
"This is primarily an action pursuant to Marvin[, supra, ] 18 Cal.3d 660 to enforce [REDACTED]'s rights as Mrazek's non-marital partner. Mrazek[ ] agreed to provide [REDACTED] half of the increased value of the home they improved together .... In exchange, [REDACTED] provided her labor, services, and companionship to Mrazek."
[REDACTED]'s cross complaint contained five "causes of action": (1) breach of contract pursuant to Marvin, supra, 18 Cal.3d 660; (2) quantum meruit; (3) imposition of a constructive trust; (4) specific performance; and (5) fraud. We focus on the first cause of action, breach of contract cause of action pursuant to Marvin, because it is this cause of action on which Mrazek focuses his appellate contentions.
[REDACTED] further alleged that she and Mrazek had lived together for more than five years, and that they had agreed to improve certain real property by pooling their assets and earnings and utilizing [REDACTED]'s management skills to improve the property. [REDACTED] alleged that Mrazek had breached their agreement by, among other actions, "failing to pay [REDACTED] . . . even [a] portion of the increased valued of the property." (Capitalization omitted.)
3. The trial court's statement of decision and judgment
After conducting a bench trial, the trial issued a statement of decision. On Mrazek's breach of contract cause of action in the first amended complaint, the trial court ruled that Mrazek was entitled to recover $9,445, plus interest at the legal rate.
With respect to the cross-complaint, the trial court rejected all of [REDACTED]'s theories of liability. As to her cause of action for breach of contract under Marvin, the court ruled in relevant part:
"[S]he . . . says ... we had a contract. We had an agreement. We . . . had a deal. Okay? We had a mutual understanding, an enforceable contract that I would come to San Diego. I would live in your house, and 1 would work. I would - we would have a joint venture. We would remodel the house and I would perform services and I would pay money. And because of our mutual efforts, we would cause the house to appreciate and then we would sell the house and divide the appreciation and . . . that's what we would do as if they were, you know, house flippers, that they said let's buy this house, we will fix it up, we will both work on it. And we will sell it, and then we will split it 50/50. . . . [T]hat is what she says the deal was.
"[¶] · · · [¶]
"The Contract that she's pursuing can't be performed within a year. It is unenforceable if there is one under the [s]tatute of [f]rauds. But I don't think it's even an enforceable contract to begin with but if it is, it's not enforceable because of the [s]tatute of [f]rauds.
"The other thing that I think is telling is credibility. I don't find her credible. I find Mr. Mrazek credible.
"But her story, her testimony changes like the wind. It's really all over the place. And something that I find very telling in this case, very telling:
"This is a couple, and this is a woman - this is a person who texts as much if not more than anything I've seen. I mean, these five binders of evidence are replete with messages, emails, texts, texts, texts, texts. These people - I think they texted each other in their sleep. I mean, there is more texts than I've ever seen.
"Not one, not one communication, no - other than the loan agreement[, which formed the basis of Mrazek's complaint]. No contract, no letter; no email, no text, no nothing confirms what she says he agreed to. Nada. Nothing.
"[¶] · · · [¶]
"So judgment for [Mrazek] on the cross-complaint."
The trial court subsequently entered a judgment in favor of Mrazek on his complaint in the amount of $9,445 and against [REDACTED] on the cross-complaint.
B. This action
1. Mrazek's first amended complaint
Mrazek brought a first amended complaint against the Attorney Defendants and [REDACTED] in March 2020. In the first amended complaint, Mrazek stated, "[t]his case alleges acts by Defendants, and each of them, surrounding the filing of a cross-complaint against [Mrazek] in the [Underlying Action]"
In a single malicious prosecution cause of action against [REDACTED], Mrazek alleged that [REDACTED] had brought the cross-complaint in the Underlying Action "in complete disregard for the frivolous nature of her claims," and that she had "initiated and maintained and completed the [U]nderlying Action with malice against [Mrazek]."
Mrazek also brought a separate malicious prosecution cause of action against the Attorney Defendants in which he alleged in relevant part:
"At the time of filing and continued throughout the litigation [in the Underlying Action], the [Attorney Defendants] were aware [that] [REDACTED]'s true intention was to harm [Mrazek] with the law suit, and to use these baseless claims as a way to utilize the legal system to extort money out of her ex-boyfriend. Nothing within the lawsuit was based on reasonable facts or a reasonable interpretation of the law, and the [Attorney Defendants] brought the suit in complete disregard for the frivolous nature of [REDACTED]'s claims, and maintained that action through trial despite clearly being made aware of this by [Mrazek's] attorneys, yet initiated and maintained and completed the Action with malice against [Mrazek]."
In addition, Mrazek brought a negligence cause of action against the Attorney Defendants. In this cause of action, Mrazek alleged that "lawyers owe a duty to the general public to do sufficient research and investigation into their client's intended lawsuits to prevent them from assisting in filing lawsuits that are fraudulent or in violation of any law, rule, or ruling of a tribunal." Mrazek claimed that the Attorney Defendants "violated and breached this duty by failing to do sufficient research, investigation, and due diligence into [REDACTED]'s claims against [Mrazek] prior to filing the [Underlying] Action."
Mrazek also brought a cause of action for unfair competition (Bus. & Prof. Code, § 17200) against the Attorney Defendants. In this cause of action, Mrazek alleged in relevant part:
"[The Attorney] Defendants, and each of them, further make it a habit and practice to file Marvin actions with little to no due diligence investigation into the veracity of the claims made by their prospective clients prior to filing the complaint, and choose to instead file expensive litigation against the opposing parties without any knowledge as to the truth, veracity, or likelihood of success in the Marvin action in violation of the California Business and Professions Code and California Rules of Professional Conduct for Attorneys. All of these actions constitute unlawful conduct within the meaning of the [unfair competition law (Bus. & Prof. 17200 et seq.)]."
2. The anti-SLAPP motions
a. The Attorney Defendants' anti-SLAPP motion
We remind Mrazek's counsel that it is an appellant's responsibility to review the clerk's transcript to ensure that it is adequate to permit review of his claims on appeal. The Attorney Defendants' May 26, 2020 anti-SLAPP motion and supporting brief are not contained in the clerk's transcript. However, on our own motion, we ordered the record augmented to include these two documents. (See Cal. Rules of Court, rule 8.155(a)(1) ["At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: (A) Any document filed or lodged in the case in superior court"].)
The Attorney Defendants filed an anti-SLAPP motion in which they contended that all of Mrazek's causes of action arose from protected activity and that Mrazek would be unable to demonstrate a probability of prevailing on any of his causes of action.
With respect to the first issue, the Attorney Defendants claimed that Mrazek's causes of action against them were all based on his contention that they had "failed to exercise diligence to investigate and litigate [REDACTED]'s [cross-complaint in the Underlying Action] and knew or should have known it was meritless." The Attorney Defendants maintained that such causes of action arose from protected activity, noting that case law provides that "[t]he anti-SLAPP statute applies when a third party non-client brings claims premised on the attorneys' representation of a client."
As to the probability of prevailing, the Attorney Defendants maintained that Mrazek's negligence and unfair competition causes of action were barred by the litigation privilege and failed as a matter of law for several additional reasons, including: as to the negligence cause of action, that the Attorney Defendants' owed Mrazek no duty; and, as to the unfair competition cause of action, that Mrazek's complaint contained insufficient allegations of unlawful conduct. With respect to the malicious prosecution cause of action, the Attorney Defendants argued that Mrazek would be unable to demonstrate that they lacked probable cause to prosecute the Underlying Action, or that they prosecuted such action with malice.
In its order granting Defendants' motions, the trial court summarily concluded that Mrazek had obtained a favorable termination in the Underlying Action. We assume for purposes of this opinion, without deciding the issue, that the trial court properly determined that Mrazek demonstrated that he could establish the favorable termination element of his malicious prosecution causes of action. The Attorney Defendants also argued that Mrazek had not obtained a favorable termination of the cross-complaint in the Underlying Action, another required element of his malicious prosecution cause of action. Specifically, the Attorney Defendants maintained that the trial court's ruling on the cross-complaint in the Underlying Action was based on a procedural ground-unenforceability due to the statute of frauds-that did not satisfy the favorable termination element of a malicious prosecution action. As noted in part II.B.2.b, post, [REDACTED] filed a separate anti-SLAPP motion. In her motion, [REDACTED] also argued that Mrazek had not obtained a favorable termination in the Underlying Action.
The Attorney Defendants supported their motion with various items of evidence, including declarations from three attorneys involved in litigating the Underlying Action. Among other topics, the declarations included attestations that [REDACTED]'s causes of action in the Underlying Action were reasonably prosecuted and outlined the investigation and litigation techniques that the attorneys employed in the Underlying Action. For example, Attorney Rios's declaration stated in relevant part:
"At no time did I believe we were pursuing any cause of action, defense or remedy that was not legally tenable. At no time did I believe we were pursuing a counter-claim, defenses or remedies that had no possibility of success and for the sole purpose of harassing Mr. Mrazek in bad faith.
"[¶] · · · [¶]
"Throughout the case, we engaged in significant written discovery, motions to compel discovery, depositions, subpoena[s] duces tecum[ ]were served to several entities, interviews of witnesses transpired, Mr. Mrazek filed and lost a demurrer and motion to strike the counter claims before he filed a motion for summary judgment on his own claim which we also defeated. I spent hundreds of hours working on the case.
"[ ]I uncovered helpful evidence during the case through subpoenas and Ms. [REDACTED] including learning that Mrazek registered her as a domestic partner (which bolstered our Marvin claims) so that he could add her to his employer's health insurance. I served a subpoena to LegalZoom and Yahoo and collected a will Mrazek started and named [REDACTED] as his beneficiary but never signed it. I uncovered witnesses who supported [REDACTED]'s claims that Mrazek made promises to her that he never kept and that [REDACTED] relied upon throughout the relationship. We learned he added her name to credit cards and commingled their vehicles.
"[ ]My firm retained two experts and paid at least one retainer to an expert whom we prepared for trial. [REDACTED] incurred fees and costs amounting to nearly $100,000. I also spent several weeks dedicated to preparing this case for trial including summarizing deposition transcripts, writing and opposing at least ten motions in limine, drafting a significant trial brief and preparing for opening, direct and cross examinations."
The Attorney Defendants also lodged a declaration from [REDACTED] in support of their anti-SLAPP motion in which [REDACTED] outlined the basis for her cross-complaint in the Underlying Action. [REDACTED] stated that at no time did she pursue such causes of action in the Underlying Action "out of spite or revenge."
In addition, the Attorney Defendants lodged various exhibits with their anti-SLAPP motion, including excerpts from Mrazek's deposition transcript in the Underlying Action and evidence that Mrazek had listed [REDACTED] as a domestic partner with his employer. The Attorney Defendants also requested that the trial court take judicial notice of various documents from the Underlying Action, including [REDACTED]'s cross-complaint and the trial court's statement of decision.
b. [REDACTED]'s anti-SLAPP motion
[REDACTED] filed a separate anti-SLAPP motion in which she argued that Mrazek's malicious prosecution cause of action arose from protected activity, i.e., the filing of the cross-complaint in the Underlying Action. [REDACTED] also maintained that Mrazek would be unable to establish a probability of prevailing on his malicious prosecution cause of action because she brought her cross-complaint in the Underlying Action with probable cause and without malice.
With respect to probable cause, in addition to arguing that her causes of action in the Underlying Action were legally tenable, [REDACTED] maintained that she had litigated the Underlying Action in good faith reliance on the advice of counsel. [REDACTED] argued that under such circumstances, Mrazek could not demonstrate that she lacked probable cause in prosecuting her cross-complaint.
With respect to malice, [REDACTED] argued that certain text messages that Mrazek alleged demonstrated malice actually demonstrated a lack of malice. For example, [REDACTED] noted that she had stated in the texts that she was" 'not looking to go to court'" and that the texts were sent more than a year before Mrazek's filing of the complaint in the Underlying Action. [REDACTED] also stated that, while she had contacted several lawyers in the immediate aftermath of her breakup with Mrazek in 2017, she had "abandoned the idea" of even having a lawyer" 'send some letters'" to Mrazek. [REDACTED] further noted that it was only after Mrazek had instituted the complaint in the Underlying Action that she relied on counsel and filed her cross-complaint.
In his first amended complaint in this action, Mrazek alleged that "[REDACTED] began to become resentful, and started texting . . . that she wanted to get a lawyer and attack [Mrazek], stating that 'it'll be therapeutic for me,' and 'he's a dick,' and 'he needs to stress,' in messages dated July 13, 2017."
With her motion, [REDACTED] lodged a declaration stating in relevant part:
"During our relationship, I helped with several remodel projects for the house that we lived in. In addition to our romantic relationship, I understood that [Mrazek] and I had a business relationship because [Mrazek] told me I was contributing to the increase of the value of the house and the labor for the remodel.
"[ ] [Mrazek] added me as an authorized user on his credit cards and gave me access to a credit line on his credit cards. He added me as a domestic partner on his health insurance and as a beneficiary of his life insurance policy. He gave me a limited power of attorney for his health care directive. He also had a will prepared that listed me as a sole beneficiary or executor. [Mrazek] and I shopped for engagement rings and chose one. Based on all of [Mrazek's] actions and representations, I believed we were building a life together and investing in the house that was ours."
[REDACTED] also lodged various exhibits with the court, including excerpts from Mrazek's deposition in the Underlying Action, the texts referred to in the previous paragraph, and an e-mail from Mrazek to [REDACTED] dated June 27, 2012 (near the beginning of their relationship) in which Mrazek encouraged [REDACTED] to "work[ ] on the house together to make it our own." [REDACTED] lodged various documents from the Underlying Action, and requested that the court take judicial notice of the declarations offered in support of the Attorney Defendants' anti-SLAPP motion in this action, c. Mrazek's opposition Mrazek filed a single opposition to the Defendants' anti-SLAPP motions. In his opposition, Mrazek contended that his causes of action for negligence and unfair competition did not arise from protected activity and that he had demonstrated a probability of prevailing on his malicious prosecution causes of action. With respect to the former issue, Mrazek argued that his negligence and unfair competition causes of action were "both based [on] the breach of a statutory requirement of all attorneys that places an affirmative duty to take 'action' in conducting a reasonable investigation into the veracity of their client's claims prior to assisting their clients in exercising their right to petition the court."
Mrazek argued that the litigation privilege did not bar his negligence and unfair competition causes of action, but he did not present any affirmative argument as to his ability to prevail on these causes of action in his opposition.
With respect to the probability of prevailing on his malicious prosecution causes of action, Mrazek argued that he could demonstrate both that the Defendants lacked probable cause to bring the Underlying Action and that they harbored malice in doing so. In support of his contention that the Defendants lacked probable cause to bring the Marvin cause of action in the Underlying Action, Mrazek argued that [REDACTED] and the Attorney Defendants were aware that he had acquired title to the real property underlying [REDACTED]'s breach of contract action prior to commencing his relationship with [REDACTED] and that [REDACTED] knew that there had not been any changes in title to the property during the relationship.
Mrazek also argued that all of the Defendants had prosecuted the Underlying Action with malice. Specifically, Mrazek argued that [REDACTED]'s "texts indicate that she went from hurt ... to angry, spiteful, and filled with vengeance." With respect to the Attorney Defendants, Mrazek argued that they did "not have . . . probable cause to file this lawsuit," and that the lack of probable cause demonstrated that the Attorney Defendants were attempting to "try[ ] to force a settlement that had no basis on the meritless [c]ross-[c]omplaint." Mrazek also argued that the Attorney Defendants' malice was demonstrated by the fact that the Attorney Defendants continued to prosecute the cross-complaint even after Mrazek's attorneys sent them a letter warning them that the continued maintenance of the cross-complaint would result in a malicious prosecution action.
Together with his opposition, Mrazek lodged various exhibits, including documents from the Underlying Action, the grant deed to the real property at issue in the Underlying Action, copies of text messages sent between [REDACTED] and a friend, copies of e-mails between [REDACTED] and her counsel pertaining to the cross-complaint, and a meet and confer letter from the Underlying Action.
The texts included the texts lodged by [REDACTED], as well as some additional texts. All of the texts lodged by [REDACTED] and Mrazek were sent between the same two phone numbers in July 2017.
d. The trial court's order granting of the anti-SLAPP motions
After further briefing and a hearing, the trial court entered an order granting the Defendants' anti-SLAPP motions on September 8, 2020.
In its order, the trial court noted that, with respect to the first step of an anti-SLAPP motion, "the moving party bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them." In considering this first prong, the trial court ruled that all of Mrazek's causes of action in the first amended complaint arose from protected activity:
"The first prong is met. [Citation.] The gravamen of this case is defendant [REDACTED]'s filing of a cross-complaint in the . . . Underlying Action . . . While [Mrazek] claims that the conduct of the attorneys is at issue in the claims for negligence and unfair business practices, the gravamen of the case is that Ms. [REDACTED] obtained counsel who recommended that she file a Marvin cross-complaint in response to the Underlying Action."
Next, the court ruled that Mrazek failed to demonstrate a probability of prevailing on either his negligence or unfair competition causes of action against the Attorney Defendants. The court ruled that both causes of action were barred by the litigation privilege. Additionally, with respect to Mrazek's negligence cause of action, the trial court ruled that Mrazek had failed to demonstrate that the Attorney Defendants owed any duty to him. As to the unfair competition cause of action, the trial court ruled that Mrazek had failed to make any showing of unlawful conduct or that he was entitled to restitution or injunctive relief.
With respect to the malicious prosecution cause of action against the Attorney Defendants, the trial court ruled that Mrazek had failed to demonstrate that he could prove that they lacked probable cause to bring the Underlying Action. The trial court reasoned:
"As for probable cause, [the Attorney Defendants] provide declarations attesting to their investigation of the case and that they believed Ms. [REDACTED]'s claim had at least minimal merit. [Citations.] Under [Marvin, supra, 18 Cal.3d at p. 674], adults who voluntarily live together and engage in sexual relations are as competent as any other persons to contract respecting their earnings and property rights. They may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner's earnings and the property acquired from those earnings remains the separate property of the earning partner. So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements. [(Marvin, supra, 18 Cal.3d 660, 674).] [Mrazek] claims there can be no Marvin claim since Ms. [REDACTED] admits that plaintiff purchased his home prior to the beginning of their relationship. However, she pled and testified that their agreement regarding the property was that they would share in the increased value of the house they improved together, as well as an interest in certain vehicles. She testified as to work she did on the remodel. No persuasive case law is provided that this agreement cannot form the basis of a Marvin action."
The trial court also ruled that Mrazek had not demonstrated that he could prove that the Attorney Defendants prosecuted the Underlying Action with malice.
"Finally, [Mrazek] has not shown malice. The 'malice' element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] Suits with the hallmark of an improper purpose are those in which: (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim. Since malice concerns actual mental state, it necessarily presents a question of fact. [Citation.] [Mrazek] argues malice can be inferred in a series of text messages between Ms. [REDACTED] and a friend in July 2017, one year before her cross-complaint was filed. In those messages, sent about two months after the relationship ended, . . . Ms. [REDACTED] was contemplating contacting a lawyer to 'get her stuff back' and it would be 'therapeutic' for her. A few days later she reports she hired an attorney and stated, 'He's a bulldog and he works only on Marvin cases.' Notably, she did not file a lawsuit at that time. In fact, her Marvin claim was filed a year later but only after plaintiff sued her. Here, evidence is presented by [[REDACTED]] from her lawyers that they believe[d] the claim was valid. There is no evidence that at the time the cross-complaint was filed, it was done because of an improper purpose or hostility or ill will."
The trial court also ruled that Mrazek had failed to demonstrate a probability of prevailing against [REDACTED] on his malicious prosecution cause of action. The court ruled as follows:
"In addition to the above findings regarding malicious prosecution, . . . [[REDACTED]] has shown she is entitled to the defense of advice of counsel. [Citation.] Evidence has been presented that she acted in good faith reliance on the advice of counsel, after truthful disclosure of all the relevant facts. [Citations.] [Mrazek] has not shown she acted in bad faith or withheld facts from counsel. [Citation.] As stated above, the text messages between Ms. [REDACTED] and her friend one year before she filed the cross-complaint... in the Underlying Action is insufficient to show bad faith."
Finally, the trial court noted that its ruling "dispose[d] of the case in its entirety" against all of the Defendants,
In its ruling, the trial court granted all of the various requests for judicial notice and overruled all evidentiary objections. While [REDACTED] and the Attorney Defendants both renew their evidentiary objections on appeal, we need not consider such objections, because, even assuming the admissibility of all of Mrazek's evidence, for the reasons stated in the text, we affirm the trial court's order granting the anti-SLAPP motions.
3. The judgment The trial court entered a judgment of dismissal in favor of the Defendants on September 29, 220.
4. The appeal
On November 4, 2020, Mrazek filed an appeal, which we construe as having been taken from the September 8, 2020 order granting the
Defendants' anti-SLAPP motions.
The September 8, 2020 order was an appealable order (§§ 425.16, subd. (a); 904.1, subd. (a)(l3)) and the time to appeal commenced on September 9. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246-1247.) Further, because an order granting or denying an anti-SLAPP motion is independently appealable, we are ordinarily "foreclosed from reviewing that order on appeal from the judgment." (Id. at p. 1247, italics added.) Thus, we must consider whether Mrazek has properly appealed from the September 8 order granting defendants' anti-SLAPP motions. With respect to that issue, we are required to construe a notice of appeal liberally. (Cal. Rules of Court, rule 8.104(a)(2); Luz v. Lopes (1960) 55 Cal. 2d 54, 59 ["notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced"].) Mrazek attached the September 8 order to his notice of appeal and states in his brief that "[t]his appeal is taken after an order granting a special motion to strike (anti-SLAPP), and is therefore immediately appealable." Defendants have not claimed any prejudice stemming from the ambiguity in Mrazek's notice of appeal. In addition, and critically, Mrazek's November 4, 2020 notice of appeal is timely as to the September 8, 2020 order under California Rules of Court, rule 8.104(a). Thus, it is reasonably clear that Mrazek intended to include a challenge to the September 8 order granting Defendants' anti-SLAPP motions in his appeal. Accordingly, we construe Mrazek's appeal as challenging the September 8 order granting the anti-SLAPP motions. However, we remind counsel that the appeal in such a case is from the anti-SLAPP order, and, to the extent that a notice of appeal is not timely filed as to that order, an appellate court will lack jurisdiction to consider the merits of an anti-SLAPP appeal. In Russell v. Foglio (2008) 160 Cal.App.4th 653, 664, a concurring opinion noted this procedural "trap": "At least one published decision shows even highly regarded and experienced counsel can overlook that an order granting a motion to strike is immediately appealable. In that decision, Maughan[, supra, 143 Cal.App.4th 1242], plaintiffs counsel sued Google. The trial court granted Google's motion to strike the complaint under the anti-SLAPP statute, effectively ending the lawsuit. (Id. at p. 1245.) A few months later, the trial court awarded Google its attorney's fees and costs and entered judgment in its favor. The plaintiff appealed from the final judgment. On review, the appellate court found the appeal was untimely as to the motion to strike, and refused to address the merits of the order granting the motion. (Id. at pp. 1246-1247.)" (Ibid., cone. opn. of Rubin, J.) Mrazek's notice of appeal states that he is appealing from the "judgment or order" entered on September 29, 2020, the date that the trial court entered a judgment in the case. Mrazek attached both the September 29, 2020 judgment and the September 8, 2020 order granting Defendants anti-SLAPP motions to his notice of appeal.
III.
DISCUSSION
Mrazek claims that the trial court erred in granting the anti-SLAPP motions, for several reasons. We first outline the law governing review of anti-SLAPP motions generally and then consider each of Mrazek's claims.
A. The law governing anti-SLAPP motions
Section 425.16 permits a defendant to file a "[s]pecial motion to strike" [i.e., anti-SLAPP motion] when a plaintiff brings a claim against the defendant "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." (§ 425.16, subd. (b)(1).)
Section 425.16, subd. (e)(1) defines activity protected under the statute as follows:
"(e) As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution 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, or (4) 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."
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The California Supreme Court has" 'described th[e] second step as a "summary-judgment-like procedure." [Citation.]'" (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) As the Sweetwater court explained:
" 'The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiffs evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiffs claim as a matter of law. [Citation.] "[C]laims with the requisite minimal merit may proceed."' [Citation.]" (Ibid.)
"We review de novo the grant or denial of an anti-SLAPP motion." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
B. The trial court properly determined that Mrazek's negligence and unfair competition causes of action against the Attorney Defendants arose from protected activity
Mrazek claims that the trial court erred in determining that his negligence and unfair competition causes of action arose from protected activity.
1. Governing law
In Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni), the California Supreme Court summarized how a court is to determine whether a claims arises from protected activity:
In discussing the distinction between a "cause of action" and a "claim," the Bonni court stated the following: "Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief- each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action - to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion." (Bonni, supra, 11 Cal.5th at p. 1010.) Neither party suggests in their brief on appeal that Mrazek's negligence and unfair competition causes of action contain multiple claims; we therefore use the terms "cause of action" and "claim" interchangeably.
"The issue before us concerns the first step of this process, determining whether the plaintiffs claims arise from protected activity. At this first step, courts are to 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' [Citation.] The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity." (Id. at p. 1009.)
In Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 210 (Finton), the Court of Appeal discussed the application of the anti-SLAPP statute to an attorney's representation of a client:
" '[A]ny act' (§ 425.16, subd. (b)(1)) 'includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.]' [Citation.] 'Under the plain language of section 425.16, subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute'" (Id. at p. 210.)
Similarly, in Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141 (Thayer), after observing that "the SLAPP statute is to be" 'construed broadly'" (id. at p. 153), the Court of Appeal noted that "[n]umerous cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and activity. [Citations.]" (Id. at p. 154.) "[L]egal advice and settlement made in connection with litigation are within section 425.16, and may protect defendant attorneys from suits brought by third parties on any legal theory or cause of action" 'arising from'" those protected activities. [Citations.]" (Ibid., italics added; see also id. at p. 158 ["if the plaintiff is a nonclient who alleges causes of action against someone else's lawyer based on that lawyer's representation of other parties, the anti-SLAPP statute is applicable to bar such nonmeritorious claims"].)
2. Factual and procedural background
Mrazek's first amended complaint in this action stated, "This case alleges acts by Defendants, and each of them, surrounding the filing of a cross-complaint against [Mrazek] in the [Underlying Action]."
In his negligence cause of action, Mrazek alleged that the Attorney Defendants breached their duty "to do sufficient research, investigation, and due diligence into [REDACTED]'s claims against [Mrazek] prior to filing the [Underlying Action]." In his unfair competition cause of action, Mrazek alleged that the Attorney Defendants "make it a habit and practice to file Marvin actions with little to no due diligence investigation into the veracity of the claims made by their prospective clients prior to filing the complaint."
3. Application
Mrazek's negligence cause of action expressly arises from the Attorney Defendants' representation of [REDACTED] in the Underlying Action and his unfair competition cause of action is premised on their representation of their clients, generally. (See pt. III.B.2, ante [quoting Mrazek's first amended complaint].) Thus, Mrazek's negligence and unfair competition causes of action arise from protected activity. (See, e.g., Thayer, supra, 207 Cal.App.4th at p. 158.)
Mrazek's arguments to the contrary are unpersuasive. According to Mrazek, his "negligence and [unfair competition] claims do not seek remedies from [the Attorney Defendants] for filing an action, but instead omitting to do due diligence into [REDACTED]'s claims prior to filing the cross-complaint. . . ." However, Finton and Thayer and the cases cited therein, make clear that anti-SLAPP protection is not limited solely to claims that are based on "filing an action." Rather, the anti-SLAPP statute applies broadly to all suits by a third-party that are based on a lawyer's representation of his or her client. (Thayer, supra, 207 Cal.App.4th at p. 158.) We are aware of no case law, and Mrazek cites none, that supports his attempt to parse "omitting to do due diligence . . . prior to filing," an action, as being outside the scope of activities protected by the anti-SLAPP statute.
Mrazek also contends that the trial court erred in relying on the litigation privilege in determining that the anti-SLAPP statute applied to his negligence and unfair competition causes of action because, according to Mrazek, the litigation privilege "only applies to 'communications,' not conduct."
This argument fails because, as the trial court correctly observed, "the litigation privilege as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry-that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision (e)(1) and (2)." (Citing Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323 (Flatley).) Further, for the reasons explained in part III.C, post, the litigation privilege does preclude Mrazek from prevailing on his negligence and unfair competition causes of action against the Attorney Defendants. Thus, the trial court did not err by considering the "the scope of the litigation privilege [in] determin[ing] whether a given communication falls within the ambit of [section 425.16] subdivisions (e)(1) and (2)." (Id. at p. 323.)
Mrazek also argues that the trial court's "application of [a]nti-SLAPP to [Mrazek's] negligence and [unfair competition] claims unnecessarily placed conflict between the [a]nti-SLAPP statute and Business & Professions Code § 6025, which give the State Bar's Rules of Professional Conduct the power of law." In support of this contention, Mrazek also cites Business and Professions Code section 6068, which provides in relevant part, "It is the duty of an attorney to do all of the following: [¶]... [¶] (g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest." Mrazek argues that Business and Professions Code section 6068 codifies California Rule of Professional Conduct, Rule 3.1, subdivision (a)(1), which provides: "(a) A lawyer shall not: (1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person." Mrazek's statutory conflict argument appears to be premised on the notion that applying the anti-SLAPP statute to claims that seek to discourage lawyers from filing meritless claims out of malice would present a statutory conflict, in violation of various rules of statutory interpretation.
Business and Professions Code section 6025 provides, "Subject to the laws of this state, the board may formulate and declare rules and regulations necessary or expedient for the carrying out of this chapter."
This argument is without any supporting authority and lacks any logical basis. Concluding that Mrazek's negligence and unfair competition causes of action arise out of protected activity does not create a conflict between the anti-SLAPP statute and these provisions of the Business and Professions Code and the California Rules of Professional Conduct. Indeed, the California Rule of Professional Conduct upon which Mrazek's argument is ultimately based, Rule 3.1, contains "a near-perfect mirror of two of the three elements of malicious prosecution." (Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 794-795.) Yet, the anti-SLAPP statute indisputably applies to malicious prosecution claims (see Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1022), and Mrazek advances no reasonable argument as to why the anti-SLAPP statute should not also apply to his negligence and unfair competition causes of action, given that those causes of action are also expressly based on the Attorney Defendants' allegedly deficient legal representation.
Finally, while Mrazek contends that applying the anti-SLAPP law to his negligence and unfair competition causes of action "would leave the general public without the consumer protection that is designed to protect the general public from meritless and frivolous lawsuits being filed," the law is clear that: "[t]he anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral, supra, 1 Cal.5th at p. 384.) Thus, to the extent that Mrazek's negligence and unfair competition causes of action had merit, applying the anti-SLAPP law to such causes of action would not prevent him from vindicating the public interest that he maintains his lawsuit serves.
For the reasons stated in III.C, post, we conclude that the trial court properly determined that Mrazek failed to demonstrate a probability of prevailing on his negligence and unfair competition causes of action.
C. Mrazek failed to demonstrate a probability of prevailing on his negligence and unfair competition causes of action
Mrazek contends that the trial court erred in concluding that he failed to made a prima facie showing sufficient to sustain a judgment on his negligence and unfair competition causes of action. Mrazek's claim is borderline frivolous and fails for numerous reasons.
First, as a threshold matter, because the Attorney Defendants carried their burden of establishing that Mrazek's negligence and unfair competition causes of action arose from protected activity (see pt. III.B, ante), Mrazek had the burden of establishing a probability of prevailing on these causes of action. (See Baral, supra, 1 Cal.5th at p. 384 [if defendant carries burden of establishing that a challenged claim arises from protected activity, "the plaintiff [must] demonstrate the merit of the claim by establishing a probability of success"].) However, as noted in footnote 8, ante, Mrazek's opposition to the Defendants' anti-SLAPP motions did not present any affirmative argument as to his ability to prevail on these causes of action. This fact alone requires affirmance.
While this appeal was pending, Mrazek filed a motion to augment the record on appeal to include his opposition to the Attorney Defendants' demurrer in the trial court. In his motion to augment, Mrazek stated: "The demurrer opposition is an important document that contains the majority of [Mrazek's] argument for the negligence and [unfair competition] causes of action. [Mrazek] gave most of that argument in this opposition, because anti-SLAPP does not normally apply to negligence or [unfair competition law] [claims], and the lower court in this appeal reviewed this document concurrently with [Mrazek's] joint opposition to the anti-SLAPP motions filed by the [Defendants]." This court granted Mrazek's motion to augment the record to include his opposition to the demurrer. However, we did not rule that this court could properly consider Mrazek's opposition to the demurrer in determining the propriety of the trial court's granting of the anti-SLAPP motions. Mrazek made no attempt to incorporate his opposition to the demurrer as part of his opposition to the anti-SLAPP motions in the trial court and he presents no argument on appeal as to why we may properly consider such arguments in reviewing the trial court's order granting the Attorney Defendants' anti-SLAPP motion. Accordingly, we conclude that Mrazek may not rely on his opposition to the Attorney Defendants' demurrer in seeking to show that he carried his burden of demonstrating a probability of prevailing on his negligence and unfair competition causes of action in opposing the Attorney Defendants' anti-SLAPP motion.
Second, as the trial court properly concluded, both causes of action are entirely barred by the litigation privilege. In Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057, the California Supreme Court summarized the litigation privilege:
"Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] [¶] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]" [Citation.] Thus, 'communications with "some relation" to judicial proceedings' are 'absolutely immune from tort liability' by the litigation privilege. [Citation.] It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards."
" 'The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]'" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment Assn., Inc.) The Supreme Court has "given the litigation privilege a broad interpretation," so as to "achieve this purpose of curtailing derivative lawsuits." (Ibid.)
The litigation "privilege is 'an "absolute" privilege, and it bars all tort causes of action except a claim of malicious prosecution.'" (Flatley, supra, 39 Cal.4th at p. 322.) In Action Apartment Assn., Inc., the Supreme Court observed that "the litigation privilege has . . . 'been held to immunize defendants from tort liability based on theories of abuse of process [citations], intentional infliction of emotional distress [citations], intentional inducement of breach of contract [citations], intentional interference with prospective economic advantage [citation], negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation] and fraud [citations].'" (Action Apartment Assn., Inc., supra, 41 Cal.4th at p. 1242, italics added.)
While Mrazek contends that the litigation privilege does not apply because his negligence and unfair competition causes of action are "premised, not on communications, but on omissions in due diligence," his contention finds no support in the case law. Instead, the California Supreme Court has held that "if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct." (Rusheen, supra, 37 Cal.4th at p. 1065.) Here, the gravamen of Mrazek's negligence cause of action is that the Attorney Defendants breached their alleged duty to the general public (of which Mrazek is a member) not to negligently represent [REDACTED]-a cause of action that rests on the Attorney Defendants' communicative acts in representing [REDACTED] injudicial proceedings. Similarly, the gravamen of Mrazek's unfair competition cause of action is that the Attorney Defendants "make it a habit and practice" to negligently represent their clients-a cause of action that also rests on the Attorney Defendants' communicative acts in representing clients in judicial proceedings.
Finally, even assuming that the litigation privilege did not preclude Mrazek from prevailing on his negligence and unfair competition causes of action, they fail as a matter of law for other reasons. Mrazek's negligence cause of action is foreclosed by well-established law. (See Norton v. Hines (1975) 49 Cal.App.3d 917, 920 [sustaining attorneys' demurrer to plaintiffs negligence action in case where plaintiff was adverse to attorneys' client in underlying litigation].) We decline Mrazek's invitation to reject Norton on the ground that the decision is "antiquated." Norton is consistent with case law in "[i]n various contexts, [in which] California appellate courts have . . . held . . . that [an] attorney owed no duty of care to a nonclient." (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 327, fn. 24) Norton's holding furthers the salutary "purpose of curtailing derivative lawsuits." (Action Apartment Assn., supra, 41 Cal.4th at p. 1241.) Indeed, it is Mrazek's approach in pursuing this derivative litigation that is outdated. (See Rusheen, supra, 37 Cal.4th at p. 1063 [ "modern public policy seeks to encourage free access to the courts and finality of judgments by limiting derivative tort claims arising out of litigation-related misconduct and by favoring sanctions within the original lawsuit"].)
With respect to Mrazek's unfair competition cause of action, a plaintiff alleging such a cause of action "must state with reasonable particularity the facts supporting the statutory elements of the violation." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Mrazek's unfair competition cause of action alleged unspecified violations of the "of the California Civil Code, Business and Professions Code, and California Rules of Professional Conduct for Attorneys." Because Mrazek's unfair competition cause of action in the first amended complaint did not adequately allege any specific unlawful conduct, Mrazek could not demonstrate a probability of prevailing on such cause of action. (See id. at p. 619 ["Demurrer was properly sustained as to this cause of action because the second amended complaint identifies no particular section of the statutory scheme which was violated" (italics added)].) While Mrazek contends in his brief on appeal that he could prove violations of various specific provisions of law-including Civil Code section 1714, Business and Professions Code section 6068, and California Rules of Professional Conduct, rule 3.1-his unfair competition cause of action in the first amended complaint did not refer to any of these specific provisions. Mrazek is thus not entitled to reversal of the trial court's order granting the Attorney Defendants' anti-SLAPP motion on the basis of such arguments. (See Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883 ["the issues to be determined in an anti-SLAPP motion are framed by the pleadings"].)
Mrazek also did not argue that he could establish his unfair competition cause of action by way of violations of these specific provisions in his joint opposition to the anti-SLAPP motions. As noted in footnote 8, ante, Mrazek's joint opposition did not present any affirmative argument as to his ability to prevail on this cause of action.
Accordingly, we conclude that Mrazek failed to demonstrate a probability of prevailing on his negligence and unfair competition causes of action.
D. Mrazek failed to demonstrate a probability of prevailing on any of his malicious prosecution causes of action
Mrazek contends that the trial court erred in concluding that he failed to make a prima facie showing sufficient to sustain a judgment on any of his malicious prosecution causes of action.
1. Governing law
" 'The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action.' [Citation.] The tort consists of three elements. The underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775-776 (Parrish).)
The Parrish court explained the meaning of the lack of probable cause element as follows:
" '[T]he probable cause element calls on the trial court to make an objective determination of the "reasonableness" of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable,' as opposed to whether the litigant subjectively believed the claim was tenable. [Citation.] A claim is unsupported by probable cause only if 'any reasonable attorney would agree [that it isj totally and completely without merit.'"' [Citations.] '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.] The standard safeguards the right of both attorneys and their clients '" 'to present issues that are arguably correct, even if it is extremely unlikely that they will win.'"' [Citations.]" (Parrish, supra, 3 Cal.5th at p. 776, italics added.)
In Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, the Supreme Court described the malice element of a malicious prosecution cause of action as follows:
" 'The "malice" element. . . relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.' [Citations.] Malice 'may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause.'" (Id. at p. 292.)
2. Application
Mrazek contends that he made a prima facie showing that the Attorney Defendants and [REDACTED] prosecuted [REDACTED]'s breach of contract cause of action pursuant to Marvin in the Underlying Action without probable cause and with malice. We are not persuaded, a. Probable cause
The sections of Mrazek's brief in which he contends that the trial court erred in concluding that he failed to make a prima face showing sufficient to sustain a favorable judgment on his malicious prosecution causes of action against the Attorney Defendants and [REDACTED] focus solely on [REDACTED]'s breach of contract cause of action under Marvin in the Underlying Action. We therefore restrict our analysis to this cause of action.
With respect to an alleged lack of probable cause, Mrazek present two primary arguments. First, Mrazek claims that, "in order to sustain a cause of action under Marvin . . . [, [REDACTED]] had to have acquired an interest in property after the initiation of the long-term co-habitation relationship." (Quoting Bergen v. Wood (1993) 14 Cal.App.4th 854, 858 (Bergen) for the proposition that a "Marvin action requires an 'after acquired interest in property.' ") Mrazek further contends that he acquired title to the real property alleged as part of [REDACTED]'s Marvin breach of contract cause of action prior to entering into his relationship with [REDACTED], and there was no evidence of "any intention or actual transfer of any real property interest in Mrazek's property to [[REDACTED]]." Mrazek maintains that the Attorney Defendants "knew (or should have known) that Marvin required an after acquired interest in the real property to be valid," and that there was no evidence of such acquisition in this case.
Mrazek cites to no authority establishing that a Marvin cause of action may be premised only on an "after acquired interest in property." Bergan, supra, 14 Cal.App.4th 854, the decision that Mrazek erroneously quotes as stating that a Marvin action requires an" 'after acquired interest in property, '" does not use that phrase or stand for that proposition. Rather, Bergan accurately quotes Marvin as broadly recognizing the proposition that cohabitating adults may enter into a "contract respecting their earnings and property rights." (Bergan, supra, 14 Cal.App.4th at p. 857, quoting Marvin, supra, Cal.3d at p. 674.) Indeed, the Marvin court itself made clear that an agreement to "hold all property acquired during the relationship in accord with the law governing community property," is not the only type of contract into which cohabitating adults may enter. (Marvin, supra, 18 Cal.3d at p. 674.) The Marvin court observed:
In its statement of decision, the trial court in the Underlying Action stated that [REDACTED] described her agreement with Mrazek as a "joint venture," in which [REDACTED] agreed to "perform services," and "pay money." According to the trial court, [REDACTED] also stated that the agreement contemplated that "[she and Mrazek] would cause the house to appreciate and then we would sell the house and divide the appreciation."
"A great variety of other arrangements are possible. The parties might keep their earnings and property separate, but agree to compensate one party for services which benefit the other. They may choose to pool only part of their earnings and property, to form a partnership or joint venture, [l%] or to hold property acquired as joint tenants or tenants in common, or agree to any other such arrangement." (Id. at p. 674, fn. 10, italics added.)
In short, we are aware of no legal authority, and Mrazek cites none, that provides that a breach of contract cause of action premised on Marvin applies only to property acquired after the commencement of a relationship or to property transferred to one of the parties during the relationship. Thus, the mere fact that Mrazek acquired the real property that [REDACTED] referred to in her breach of contact cause of action before entering a relationship, and that there was no transfer of title to the property to [REDACTED] during the relationship, does not establish that the Attorney Defendants and [REDACTED] lacked probable cause to bring a cause of action based on Marvin.
Mrazek also contends that the fact that the trial court in the Underlying Action determined that the statute of frauds precluded [REDACTED]'s breach of contract cause of action demonstrates a lack of probable cause to bring that cause of action. (Citing Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456 (Whorton).) In Whorton, the court observed that "in [Marvin, supra, 18 Cal.3d at page 674, footnote , the court noted in cases involving agreements between nonmarital partners, the majority of the agreements were oral and the courts have expressly rejected defenses grounded upon the statute of frauds." (Whorton, supra, at p. 456, italics added; see id. at p.456 ["Whorton alleges he stopped his education earlier than planned to assist Dillingham in his business ventures in exchange for promises of support and sharing of accumulated property. These facts are sufficient to estop Dillingham from raising the statute of frauds by way of demurrer to bar enforcement of the contract"].)
The Whorton court cited to footnote 10 of Marvin (Whorton, supra, 202 Cal.App.3d at p. 456), but the intended citation is Marvin, 18 Cal.3d at page 674, footnote 9.
In its statement of decision, the trial court in the Underlying Action did not discuss estoppel. Further, Mrazek fails to present any argument that there was no basis on which a reasonable litigant and/or her lawyers could have concluded that the statute of frauds could be overcome in the Underlying Action. Under these circumstances, the trial court's bare finding in the Underlying Action that the statue of frauds prevented the enforceability of any alleged contract under Marvin does not constitute sufficient evidence of a lack of probable cause to support a malicious prosecution cause of action against the Attorney Defendants or [REDACTED].
Mrazek also contends that the fact that the trial court in the Underlying Action found that [REDACTED] was not "credible," and that she had not performed sufficient services to support an award pursuant to Marvin demonstrates that he had probable cause to bring his malicious prosecution cause of action against the Attorney Defendants. Again, we disagree. The fact that the trial court in the Underlying Action did not find [REDACTED] to be credible is not a sufficient basis to conclude that the prior action was not "legally tenable," or one that" '" 'any reasonable attorney would agree [that it isj totally and completely without merit.' " '" (Parrish, supra, 3 Cal.5th at p. 776.) In addition, while the trial court in the Underlying Action was dismissive of the work that [REDACTED] had performed in the context of her relationship with Mrazek, the law is clear that "homemaking services are lawful consideration for an agreement relating to earnings, property or expenses." (Bergen, supra, 14 Cal.App.4th at p. 859.)
For example, in its statement of decision, the trial court in the Underlying Action stated, "What she said was, among other things, I will. . . feed the dogs and then I'll work with the contractors and I will let them in the house . . . ." Elsewhere in its statement of decision, the trial court noted that, "she probably picked out a lot of stuff," for the remodeling of the house and "she did a lot of landscaping."
Mrazek also contends that the trial court erred in concluding that [REDACTED] "is entitled to the defense of advice of counsel." (Citing Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1544.) In Bisno, the Court of Appeal observed that, "Good faith reliance on the advice of counsel, after truthful disclosure of all the relevant facts, is a complete defense to a malicious prosecution claim." (Bisno, supra, 174 Cal.App.4th 1534, 1544.) In light of our conclusion that Mrazek failed to present evidence sufficient to establish the probable cause element of his malicious prosecution causes of action, we need not determine whether the trial court properly determined that [REDACTED] had established an advice-of-counsel defense to such cause of action.
b. Malice
Mrazek argues that malice can be inferred where a party continues to prosecute a cause of action after becoming aware that it lacks probable cause. This argument fails because we reject Mrazek's argument that he has presented a prima facie case that the Attorney Defendants and [REDACTED] prosecuted the breach of contract cause of action in the Underlying Action without probable cause.
Mrazek also contends that the trial court in the Underlying Action found that that there was" 'no evidence at all' to substantiate any of [[REDACTED]'s] claims." The trial court's statement of decision contains no such statement. The trial court did state that there "there is no evidence, at all, I don't think, of detrimental reliance," (italics added) but the trial court never stated that there was no evidence to support of any of [REDACTED]'s claims.
Further, the trial court's statement of decision in the Underlying Action indicates that [REDACTED] testified as to the existence of a contract between herself and Mrazek. The court stated:
"[S]he . . . says is we had a contract. We had an agreement. We had a - we had a deal. Okay? We had a mutual understanding, an enforceable contract that I would come to San Diego. I would live in your house, and 1 would work. I would - we would have a joint venture. We would remodel the house and I would perform services and I would pay money. And because of our mutual efforts, we would cause the house to appreciate and then we would sell the house and divide the appreciation and - and that's what we would do as if they were, you know, house flippers, that they said let's buy this house, we will fix it up, we will both work on it. And we will sell it, and then we will split it 50/50. There's - that is what she says the deal was."
As discussed in part III.D.2.a, ante, the fact that the trial court in the Underlying Action did not find [REDACTED]'s testimony credible does not establish that the Attorney Defendants and/or [REDACTED] lacked probable cause to bring the cause of action. This is particularly true given that the trial court also found: (1) that [REDACTED] had performed some household services (e.g., "she did a lot of landscaping"); (2) that [REDACTED] "was the contact person" for contractors working on the real property at issue in the Underlying Action; and (3) that Mrazek and [REDACTED] occasionally pooled money for improvements to the property. The trial court also found that Mrazek and [REDACTED] had lived together for four years, and that Mrazek had put [REDACTED] on "his health insurance as a domestic partner." Thus, we reject Mrazek's argument that a reasonable jury could infer malice based on a purported lack of evidence presented at trial in the Underlying Action on [REDACTED]'s breach of contract cause of action pursuant to Marvin.
In its statement of decision in the Underlying Action, the trial court stated, "And [[REDACTED]] maybe called him and said the floor guy is here and he says that he's owed $1,100. [Mrazek] said can you - do you have the amount of money in your account? Write 'em a check or put it on the credit card. You know, that the way it works. And I think that's the way it worked from here."
Mrazek also contends that a jury could infer malice based on evidence of the Attorney Defendants' "lack of investigation and research." We reject this argument. The Attorney Defendants offered detailed declarations as to their investigation into [REDACTED]'s action (see pt. II.B.2.a, ante), and Mrazek's arguments as to a "lack of investigation and research," amount to nothing more than a recycling of the same arguments that he offered in support of his argument that the Attorney Defendants lacked probable cause to prosecute [REDACTED]'s breach of contract cause of action. Specifically, Mrazek contends that the Attorney Defendants should have "know[n] that the property was not after acquired or that the 'work' [[REDACTED] performed] would not satisfy the statute of frauds or [serve as adequate] consideration to sustain a contract." We reject Mrazek's arguments here for the same reasons that we rejected them in part III.D.2.a, ante in connection with his probable cause argument.
Finally, as to [REDACTED], Mrazek argues that her text messages sent to a friend demonstrate malice. No reasonable jury could so find. The texts were sent in July 2017, well more than a year prior to [REDACTED]'s November 2018 filing of the cross-complaint in the Underlying Action. While [REDACTED] referred to Mrazek as a "dick" in the texts and wrote that "he needs to stress," [REDACTED] also stated that she was "not looking to go to court." in addition, while [REDACTED] stated in a text that she had hired an attorney who was "a bulldog," there is no evidence that [REDACTED] or the Attorney Defendants intended to file, or did file, litigation for an improper purpose. Indeed, in the texts, [REDACTED] repeatedly expressed a reluctance to litigate, stating that she wanted the attorney to draft "a few letters," to "get [her] shit back," and that she just "want[ed] the dogs." In short, no reasonable jury could find that [REDACTED] harbored malice in filing or prosecuting the cross-complaint based on the texts on which Mrazek relies.
Mrazek also contends that, with respect to [REDACTED], "[t]he lower court made no rulings on the issue of malice." Mrazek is correct that the trial court's order did not separately address the malice element of Mrazek's malicious prosecution cause of action against [REDACTED]. However, after concluding that Mrazek failed to present legally sufficient evidence of either a lack of probable cause or malice with respect to his malicious prosecution cause of action against the Attorney Defendants, the trial court stated "in addition to the above findings regarding malicious prosecution, [[REDACTED]] has shown she is entitled to the defense of advice of counsel," thereby incorporating its findings as to the Attorney Defendants as to [REDACTED]. In addition, the trial court found that "text messages between Ms. [REDACTED] and her friend one year before she filed the cross-complaint in the Underlying Action is insufficient to show bad faith."
As noted in footnote 10, ante, we assume for purposes of our decision the admissibility of the texts.
Indeed, it is not clear from the texts, or from any other evidence in the record that Mrazek identifies, that the attorney whom [REDACTED] hired in July 2017 was one of the Attorney Defendants.
Accordingly, we conclude that Mrazek failed to present sufficient evidence from which a jury could find that he established the probable cause and malice elements of his malicious prosecution causes of action against the Attorney Defendants or [REDACTED]. We therefore further conclude that Mrazek failed to demonstrate a probability of prevailing on these causes of action.
E. The case is remanded to the trial court to award the Defendants their appellate attorney fees, in an amount to be determined by the trial court
The Attorney Defendants request that this court award them attorney fees incurred in this appeal.
In Evans, supra, 38 Cal.App.4th 1490, the Court of Appeal outlined the law governing awards of appellate attorney fees on anti-SLAPP motions:
"A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. [Citations.] Under Code of Civil Procedure section 425.16, subdivision (c), a prevailing defendant on a special motion to strike a SLAPP suit "shall be entitled to recover his or her attorney's fees and costs." The statute does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent; hence they are recoverable." (Id. at pp. 1499-1500.)
The Attorney Defendants and [REDACTED] are clearly prevailing parties, in both the trial court and on appeal. Accordingly, we remand the case to the trial court to award Defendants their appellate attorney fees, in an amount to be determined by the trial court.
As noted in footnote 1, ante, although [REDACTED] did not specifically address appellate attorney fees in her brief on appeal, she is entitled to such fees as a matter of law. On remand, the trial court shall determine the amount of appellate attorney fees to which [REDACTED] is entitled.
IV. DISPOSITION
The order granting Defendants' anti-SLAPP motions is affirmed. The Defendants shall recover their attorney fees incurred on appeal in an amount to be determined by the trial court on remand. Defendants are entitled to costs on appeal.
WE CONCUR: IRION, J. DATO, J.