Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BC367220. Jane L. Johnson, Judge. Order granting special motion to strike affirmed in part and reversed in part; orders awarding attorney fees vacated.
Ernest J. Franceschi, Jr., for Plaintiffs and Appellants.
Nemecek & Cole, Jonathan B. Cole and Susan S. Baker for Defendants and Respondents David Lynn and Law Offices of David Lynn.
No appearance for Defendant and Respondent Freshtex California, Inc.
MALLANO, P. J.
The trial court granted defendants’ special motion to strike plaintiffs’ complaint for malicious prosecution and other torts on the ground that plaintiffs failed to establish a probability of prevailing. (Code Civ. Proc., § 425.16.) We disagree with respect to the malicious prosecution cause of action and reverse that part of the order but affirm as to the other causes of action. We vacate the orders awarding attorney fees.
Unspecified statutory references are to the Code of Civil Procedure. Section 425.16 is known as the anti-SLAPP statute, an acronym for strategic lawsuit against public participation. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 71–72 & fn. 1.)
BACKGROUND
In March 2007, plaintiffs Antonio Rodriguez, Rima Garcia, and La Corona U.S.A. (plaintiffs) filed a complaint for malicious prosecution, intentional and negligent infliction of emotional distress, and “prima facie tort” against defendants Freshtex California, Inc., Franz Alt, Freshtex’s principal shareholder and managing agent, and David Lynn and the Law Offices of David Lynn (collectively referred to as Lynn), Freshtex’s attorney. Plaintiffs alleged that in November 2005, Freshtex and Alt, through their attorney, Lynn, filed a lawsuit against them for breach of contract, fraud and other torts based on plaintiffs’ alleged misappropriation of Freshtex’s trade secrets and solicitation of Freshtex’s customers. The lawsuit was removed to federal court, where plaintiffs obtained a summary judgment in January 2007. The United States District Court made findings that Freshtex’s lawsuit was frivolous, unreasonable, and brought without probable cause and awarded plaintiffs $43,280 in attorney fees and costs. (Freshtex California, Inc. v. Antonio Rodriguez et al. (C.D. Cal., Jan. 10, 2007) No. CV 06-995 AHM (PJWx).)
Plaintiffs further alleged that the federal lawsuit was terminated in their favor and that Freshtex and Lynn knew, or in the exercise of reasonable care should have known, that the federal suit lacked merit and probable cause. Plaintiffs incurred attorney fees in excess of $100,000 in the federal suit and suffered severe emotional distress.
Lynn filed a special motion to strike the complaint on the grounds that plaintiffs could not show a probability of prevailing on the malicious prosecution claim and that the other tort claims were barred by the litigation privilege. As to the malicious prosecution claim, Lynn argued that there was no “favorable termination” because the underlying federal action was still on appeal in the Ninth Circuit Court of Appeals; probable cause existed to bring the underlying action; and Lynn did not act with malice because he commenced the underlying action only after receiving facts from his client and researching the viability of the client’s claims.
In support of the motion, Lynn declared that he was retained by Freshtex in the fall of 2005. Freshtex is a commercial fabric finishing company that develops and produces for each of its customers a unique wash, dying or treatment for fabrics such as denim. Freshtex considers each special fabric treatment it develops with its customers to be a trade secret. It kept its customer list in a locked room. Rodriguez became Freshtex’s vice president in January 2003, when he and Freshtex entered into an employment and noncompetition agreement. Garcia, Rodriguez’s wife, was also employed by Freshtex as one of its employees in charge of developing unique fabric treatments. In August 2005, Rodriguez and Garcia abruptly left employment with Freshtex and went to work for a competitor, La Corona.
Lynn further declared that “Freshtex believed that, just prior to his departure to La Corona, Rodriguez gave secret instructions to two lower-level employees to transport two valuable and unique mechanical mannequins to La Corona’s place of business.... Freshtex believed that the mannequins were removed so that Rodriguez could, in connivance with La Corona, ‘reverse engineer’ the mannequins and appropriate the design for their own use. [¶] Freshtex further believed that Rodriguez disclosed to La Corona various customer lists, trade secrets and confidential and proprietary information he obtained either on his own while working for Freshtex as its Vice President or from his wife, Garcia. Freshtex believed that Rodriguez used Freshtex’s confidential information and proprietary trade secrets to approach certain of Freshtex’s customers, including Union Jeans and Frankie B. Freshtex informed [Lynn] that Frankie B. terminated its relationship with Freshtex because there were allegedly numerous errors in pricing. Rodriguez had been in charge of pricing for Frankie B., and Freshtex believed Rodriguez had deliberately sabotaged the pricing in contemplation of later approaching Frankie B. on behalf of his new employer, La Corona.”
Lynn further explained, “Based upon my independent research of the law and an application of the law as I understood it to the facts relayed to me by my client, I concluded that Freshtex had viable claims for damages against La Corona, Rodriguez and Garcia for, among other things, breach of contract, conspiracy and fraud.” Before filing the underlying lawsuit in November 2005, Lynn had met Rodriguez in his capacity as general manager of Freshtex’s California facility and found him to be professional, affable, and friendly. Lynn filed the underlying lawsuit for the purpose of obtaining just compensation for Freshtex, and he harbored no ill will toward Rodriguez or the other plaintiffs.
In opposition to the motion to strike, plaintiffs contended that Lynn was collaterally estopped from challenging the federal court’s findings establishing that the underlying action was objectively untenable and prosecuted in bad faith; and the pendency of the appeal in the federal court does not affect the viability of the malicious prosecution claim. The attorney for plaintiffs declared that at various stages throughout the underlying litigation leading up to the filing of the summary judgment motion, he invited Lynn to dismiss the action in return for a “‘hold harmless’” agreement that would have precluded a malicious prosecution action, but Lynn refused and insisted on continuing to prosecute the action. According to plaintiffs’ attorney, Freshtex did not seek any discovery from plaintiffs in the underlying action. Lynn admitted at the summary judgment hearing in October 2006 in the federal district court that Freshtex did not question or take the depositions of the Freshtex customers that Rodriguez allegedly solicited.
Also offered in opposition to the motion to strike was a transcript of the summary judgment hearing in the federal action, which included the findings of the district court judge supporting the grant of summary judgment in favor of plaintiffs. The judge stated that Lynn, on behalf of Freshtex, had “introduced no facts to support any of [its] claims,” and, “You have no basis whatsoever do drag out this litigation, which I think has been largely ignored or mishandled by you, any further.” The court found, “You haven’t proven a trade secret. You haven’t proven that your client took the steps necessary to maintain a trade secret. You haven’t proved that anybody misappropriated it.” The court continued: “I find that there is an absence [] of any evidence of misappropriation of trade secrets,” and “from what I’m able to glean from both the allegations in the complaint, the absence of any evidence to support it, the way the case has been prosecuted or not prosecuted, [Freshtex’s] defiance of court orders, the fact that you’ve been sanctioned as their lawyer, I think the request that [Rodriguez, Garcia and La Corona] be awarded attorneys’ fees is meritorious.”
In awarding attorney fees to Rodriguez, Garcia, and La Corona, the federal court explained, “This was a frivolous lawsuit, pursued frivolously, subjected [Rodriguez, Garcia, and La Corona] to unnecessary [costs,] expenses and attorneys’ fees; and that under California law when there is an allegation of a misappropriation of a trade secret and no evidence to establish that there was a trade secret that was misappropriated, Civil Code section 3426.4 permits the recovery of reasonable attorney fees to the prevailing party.”
Freshtex joined in Lynn’s special motion to strike and raised the additional defense of reliance on counsel but did not submit any additional evidence in support of its joinder. After a hearing, the trial court granted the motion to strike as to both Lynn and Freshtex. The trial court determined that plaintiffs did not establish a prima facie case as to any of the elements of a malicious prosecution action. Because the underlying federal action was still pending on appeal, the court concluded that there was no element of favorable termination. Because Lynn filed the underlying action based on the information furnished by his client and there was no evidence he knew that the information provided by the client was false, the court reasoned that plaintiffs did not establish a probability of prevailing on the lack of probable cause element. The trial court also determined that plaintiffs failed to make a prima facie showing of malice, noting that the lack of probable cause alone is insufficient to give rise to an inference of malice. With respect to the other causes of action, the trial court determined that they were all barred by the litigation privilege of Civil Code section 47. On Freshtex’s motion for attorney fees, the trial court awarded Freshtex $16,803.26 in attorney fees and costs.
Civil Code section 47 provides in pertinent part that “[a] privileged publication or broadcast is one made: [¶]... [¶] (b) In any... (2) judicial proceeding....”
Plaintiffs appealed from the order granting the special motion to strike of Lynn and Freshtex and from the order awarding attorney fees to Freshtex. Lynn, but not Freshtex, filed a respondent’s brief. Pending this appeal, the trial court awarded attorney fees to Lynn.
DISCUSSION
“A ‘SLAPP’ suit ‘seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.]’ [Citation.]” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1015 (Paiva).)
“Determination of a special motion to strike involves a two-part inquiry. ‘“ First, the court decides whether the defendant... has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff... has demonstrated a probability of prevailing on the claim.”’ [Citation.] ‘“Put another way, the plaintiffs ‘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.] ‘Thus, plaintiffs’ burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.’ [Citation.] If the plaintiff fails to carry that burden, the cause of action is ‘subject to be stricken under the statute.’ [Citation.]” (1000 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1477–1478; fn. omitted.) We review de novo the trial court’s ruling by conducting an independent review of the entire record. (Paiva, supra, 168 Cal.App.4th at p. 1016.)
The initiation and prosecution of a prior lawsuit is protected activity within the anti-SLAPP statute. (Paiva, supra, 168 Cal.App.4th at p. 1017.) Plaintiffs conceded the foregoing point below and on appeal, so we proceed to address the issue of whether they showed the probable validity of the malicious prosecution claim.
I
Malicious Prosecution
“To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that the prior action (1) was initiated by or at the direction of the defendant and legally terminated in the plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice.” (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)
A. Favorable Termination
Summary judgment granted in a prior federal court action constitutes a favorable termination for purposes of a malicious prosecution claim. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1149; see also Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 342.)
Lynn maintains that the pending appeal of the federal court summary judgment prevents plaintiffs from showing the element of favorable termination. We disagree because Lynn confuses the issue of favorable termination with the issue of finality of a judgment for claim or issue preclusion purposes. We assume, as urged by Lynn, that the issue of whether the circumstances here show a favorable termination is governed by state law. (See, e.g., Semtek Int’l Corp. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 508–509 [claim preclusive effect of federal diversity court’s dismissal on statute of limitations grounds was governed by federal rule which in turn looked to forum state’s law of claim preclusion].) As explained below, the pendency of an appeal from the underlying judgment in favor of plaintiffs may provide a basis for a plea in abatement, but the pendency of the appeal does not vitiate their malicious prosecution claim.
A malicious prosecution claim accrues at the time of entry of judgment in the trial court. (Feld v. Western Land & Development Co. (1992) 2 Cal.App.4th 1328, 1334 (Feld).) The pendency of an appeal from the judgment tolls the statute of limitations until the conclusion of the appellate process. (Ibid.) Therefore, when a malicious prosecution action is filed during the pendency of an appeal from the judgment in the underlying action, courts “should abate a malicious prosecution action instead of dismissing the action.” (Id. at p. 1336.)
“[A] trial court judgment which is final for purposes of appellate jurisdiction is final for purposes of bringing a malicious prosecution action. Although unstated, this proposition was implicitly accepted by this court in Feld, supra, 2 Cal.App.4th 1328 and by the courts in Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 Cal.App.3d 330, and Gibbs v. Haight, Dickson, Brown & Bonesteel [(1986)] 183 Cal.App.3d 716. Each of these cases hold that the statute of limitations on a malicious prosecution claim begins to run upon entry of a judgment in the trial court, continues to run until a notice of appeal is filed and is tolled until the conclusion of the appellate process, at which time it commences again. [Citation.] Implicit in the ‘start/stop’ computation of time adopted by these cases is an understanding that the termination which provides a right of appeal also gives rise to a cause of action for malicious prosecution.” (Bob Baker Enterprises, Inc. v. Chrysler Corp. (1994) 30 Cal.App.4th 678, 683–684 (Bob Baker).)
As further explained in Bob Baker: “The requirement of a favorable termination is needed to avoid ‘the inconsistent judgments which may result if a malicious prosecution action were permitted to be filed before the conclusion of the principal suit.’ [Citation.] By looking to the point when trial court proceedings have been sufficiently complete to permit efficient appellate review, and by recognizing that a claim for malicious prosecution will be stayed during the pendency of any appeal in the underlying lawsuit (see Feld, supra, 2 Cal.App.4th at p. 1336), we believe we have identified the earliest point at which there is no risk of inconsistent results.” (Bob Baker, supra, 30 Cal.App.4th at p. 684.)
Lynn’s reliance on Code of Civil Procedure section 1049 is misplaced because the statute is consistent with the analysis of the favorable termination element in Feld and Bob Baker. Section 1049 provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.”
“We find no indication, however, that the Legislature intended [Code of Civil Procedure section 1049], catalogued under ‘General Provision,’ to control the period of limitation for commencing an action for malicious prosecution. The issue is not whether further action in the underlying prosecution is forever precluded, but whether the underlying action is sufficiently terminated to authorize counter-action by the aggrieved party.” (Soble v. Kallman (1976) 57 Cal.App.3d 719, 722 [court rejected contention that statute of limitations on malicious prosecution action accrued when time to file appeal from judgment expired].)
Also unavailing is Lynn’s citation to Pacific Gas & Electric Co. v. Nakano (1939) 12 Cal.2d 711 (holding a tort action is not subject to assignment while an appeal of that action is pending) and Albertson v. Raboff (1956) 46 Cal.2d 375 (holding that a malicious prosecution action is not premature when no appeal was taken from that part of the judgment which is the basis of the malicious prosecution action). Neither case addresses the issue of favorable termination.
For the foregoing reasons, the trial court erred in concluding that plaintiffs did not establish a prima facie case on the element of favorable termination.
B. Lack of Probable Cause
“An action is deemed to have been pursued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted. The court must ‘determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.’ [Citation.] ‘The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted. [Citation.]’ [Citation.] The test the court is to apply is whether ‘any reasonable attorney would have thought the claim tenable....’ [Citation.]” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402 (Sycamore Ridge Apartments).) “[T]he objective tenability of the prior action is a question of law to be determined by the court....” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884.)
“A lack of probable cause may arise from an insufficiency in the facts or the law.” (Puryear v. Golden Bear Ins. Co. (1998) 66 Cal.App.4th 1188, 1195 (Puryear).) Where the issue is the insufficiency in the facts known to the defendants, as here, “probable cause requires evidence sufficient to prevail in the action or at least information reasonably warranting an inference there is such evidence.” (Ibid.) Thus, probable cause is lacking “when a prospective plaintiff and counsel do not have evidence sufficient to uphold a favorable judgment or information affording an inference that such evidence can be obtained for trial.” (Ibid.)
The court in Puryear rejected the “less stringent” majority rule for probable cause in civil actions set out in Restatement Second of Torts section 675, which provides that probable cause exists if one “‘reasonably believes in the existence of the facts upon which the claim is based, and... [¶] (a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law....’” (Puryear, supra, 66 Cal.App.4th at p. 1196.) “The Restatement rule is predicated on a dilemma to prosecute or perish that is obviated by an unusual feature of California procedural law. That feature is the unique broad scope of our fictitious defendant practice under Code of Civil Procedure section 474. [Citation.] [¶] Under Code of Civil Procedure section 474, a plaintiff who lacks sufficient evidence to prove a cause of action, or information warranting an inference that such evidence will be obtained, can ‘otherwise effectively enforce its rights’ by use of a Doe allegation.... Since the reason for the Restatement rule does not apply to this case, neither does the rule.” (Puryear, supra, 66 Cal.App.4th at p. 1197; see also Arcaro v. Silva & Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156–157; Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383.)
The aspect of probable cause involving the viability of a particular legal theory of liability is not at issue here; rather, the issue is whether Lynn and Freshtex possessed sufficient facts to support the claims they asserted.
In independently reviewing an order granting a motion to strike under section 425.16, we consider “‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based,’” and we “‘accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) We do not weigh credibility nor compare the weight of the evidence. (Ibid.)
Under the foregoing principles, plaintiffs established a prima facie case that Lynn and Freshtex lacked probable cause to bring and to prosecute the underlying lawsuit. At the time of the hearing on the summary judgment motion in the underlying lawsuit, the federal court found that insufficient evidence was offered to support Freshtex’s claims that plaintiffs had misappropriated its trade secrets and solicited its customers. It was undisputed that Lynn conducted no discovery from plaintiffs and Lynn admitted at the summary judgment hearing that Lynn had not sought to contact or to depose the Freshtex customers that Rodriguez allegedly had lured away to La Corona. In support of its motion to strike, Lynn’s declaration provided information about Freshtex’s “beliefs” with respect to plaintiffs’ wrongful conduct, but Lynn provided no explanation of what facts supported Freshtex’s beliefs. For example, there are no facts to support Freshtex’s “beliefs” that plaintiffs’ conduct played a part in causing two of Freshtex’s customers to terminate their relationships with Freshtex and bring their business to La Corona. Freshtex’s “beliefs” amount to nothing more than uncorroborated suspicions or allegations.
The record permits the reasonable inference that Lynn and Freshtex offered insufficient evidence in the federal court action in October 2006 to defeat the plaintiffs’ summary judgment motion because Lynn and Freshtex had insufficient evidence at the time the underlying action was instituted. And the special motion to strike, filed in April 2007, still contained insufficient facts to support Freshtex’s claims against plaintiffs. Thus, a reasonable inference arises that Lynn and Freshtex lacked probable cause to initiate the underlying action against plaintiffs.
The record also permits the inference that there was no reasonable probability that Lynn and Freshtex could have obtained evidence to support Freshtex’s action against plaintiffs during the course of the underlying action. The underlying action was pending for almost one year before the hearing on the summary judgment motion on October 30, 2006. Lynn and Freshtex had the opportunity to undertake an investigation or to conduct discovery with respect to the customers that terminated their relationships with Freshtex, but they failed to do so. At the hearing in October 2006, Lynn did not assert that facts essential to defeat the summary judgment existed but could not then be presented. Accordingly, the inference arises that there was no reasonable probability that Lynn and Freshtex could have obtained evidence supporting the claim that plaintiffs’ wrongful conduct caused damage to Freshtex. The record thus shows that plaintiffs met the burden of establishing a probability of prevailing on the element of lack of probable cause.
C. Malice
“The malice element of the malicious prosecution tort goes to the defendant’s subjective intent in initiating the prior action. [Citation.] For purposes of a malicious prosecution claim, malice ‘is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.’” (Sycamore Ridge Apartments, supra, 157 Cal.App.4th at p. 1407.) Improper purposes include, but are not limited to, those in which (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primarily because of hostility or ill will; (3) the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of his property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim. (Ibid.) If the prior action was not objectively tenable, the extent of a defendant attorney’s investigation and research may be relevant to the further question of whether or not the attorney acted with malice. (Ibid.)
Although insufficient by itself to establish malice, the lack of probable cause is a relevant factor bearing on the issue of malice. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)
Drawing reasonable inferences from the record favorable to plaintiffs, and without weighing those reasonable inferences against any conflicting evidence or inferences, we conclude that plaintiffs established a probability of prevailing on the element of malice. The prima facie showing of lack of probable cause, combined with the evidence that Lynn and Freshtex did not contact Freshtex’s former customers or conduct discovery from plaintiffs in the underlying action, permit the inference that they did not believe that Freshtex’s claims were valid. Such inference is sufficient to establish malice under Sycamore Ridge Apartments, supra, 157 Cal.App.4th 1385.
Because plaintiffs established a probability of prevailing on the malicious prosecution claim, the trial court erred in granting Lynn’s and Freshtex’s special motion to strike as to this claim.
But the trial court correctly granted the special motion to strike as to the claims for intentional and negligent infliction of emotional distress and “prima facie tort” because Lynn and Freshtex established a defense to such claims as a matter of law based on the litigation privilege of Civil Code section 47, subdivision (b)(2).
The litigation privilege is “‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense the plaintiff must overcome to demonstrate a probability of prevailing. [Citations.]’” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 38.) Civil Code section 47, subdivision (b) “operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution, whose requirements include malice, lack of probable cause, and termination in the plaintiff's favor. [Citations.] As we explained, ‘[m]alicious prosecution actions are permitted because “[t]he policy of encouraging free access to the courts... is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.”’ ([Silberg v. Anderson (1990) 50 Cal.3d 205, 216].)” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 375.)
II
Attorney Fees
Because we are reversing in part the order granting the motion to strike as to both Freshtex and Lynn, the awards of attorney fees are also vacated as a matter of law. (See Giles v. Horn (2002) 100 Cal.App.4th 206, 241 [order awarding attorney fees falls with reversal of judgment on which it is based].) We express no opinion as to whether, upon remand, Freshtex and Lynn would be entitled to attorney fees. (See Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 [“[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.”].)
DISPOSITION
The order granting the special motion to strike is reversed as to the cause of action for malicious prosecution and is affirmed as to all other causes of action. The orders awarding attorney fees to Freshtex California, Inc., and David Lynn and Law Offices of David Lynn are vacated. Plaintiffs are entitled to costs on appeal from defendants David Lynn and Law Offices of David Lynn.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.