Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG06-266561
Jones, P.J.
Appellant Michael M. Caminero (Caminero) filed a malicious prosecution complaint against respondent Jenny Chung (Chung) and others. The trial court granted Chung’s motion to strike (Code Civ. Proc., § 425.16) and awarded her attorney fees as a prevailing party (§ 425.16, subd. (c)). Caminero appeals. He contends that he established a probability of prevailing on the “favorable termination” element of his malicious prosecution claim and, as a result, the trial court erred in granting Chung’s motion. He also challenges the court’s award of attorney fees to Chung as the prevailing party.
Unless otherwise noted, all further references are to the Code of Civil Procedure.
We reverse. We conclude the trial court erred in granting the motion to strike because Caminero demonstrated a probability of prevailing. In light of our conclusion, Chung is not a prevailing party under section 425.16, subdivision (c) and is not entitled to attorney fees and costs pursuant to that statute.
Section 425.16, subdivision (c) provides in relevant part that a prevailing party on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.”
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Action
In 2001, Caminero was employed by Spherion Technology (Spherion) and worked as a contractor at Alameda County Behavioral Healthcare Systems (ACBHS). Chung began working at ACBHS in September 2001; Selena Kapic began working there in November 2002. Richard Avellar was also an employee of ACBHS. He worked with Caminero and with Chung and Kapic (collectively, plaintiffs).
Chung’s citations to the record are insufficient and inaccurate. (Cal. Rules of Court, rule 8.204(a)(1)(C); Stasz v. Schwab (2004) 121 Cal.App.4th 420, 424 & fn. 1 (Stasz).) Moreover, Chung’s statements of “fact” are frequently expressions of argument, unsupported by authority in the record. As a result, “we do not accept [Chung’s] factual assertions and rely instead on [Caminero’s] statement of facts, which is supported by appropriate record references.” (Id. at p. 424, fn. 1.)
In May 2003, plaintiffs filed a lawsuit against ACBHS, Diversified Personnel Services (Diversified), Spherion, Caminero, and Avellar. The first amended complaint alleged sexual harassment and retaliation claims against Caminero and Avellar and various additional causes of action against the other defendants. Plaintiffs claimed that Caminero and Avellar sexually harassed them “beginning within the first two months that they each started working at ACBH[S].” Specifically, plaintiffs alleged that Caminero told them: “The smell of your cologne drives me crazy;” “I am a naughty boy when I’m around you;” “You’re [sic] body is perfect for me;” and “I hope your boyfriend compliments you every day.” The operative complaint also alleged that Caminero made unwelcome remarks about plaintiffs’ clothing and touched them “in an unwelcome manner[.]” Plaintiffs further alleged that their complaints to “management” were ignored and that ACBHS retaliated against them by changing their lunch schedules and job duties.
The operative complaint alleged that Diversified was a “temporary placement agency that placed Kapic to work at ACBH[S].”
Francis J. Ortman III, an associate of Seyfarth Shaw, represented Caminero and Spherion. Spherion indemnified Caminero and did not seek reimbursement of attorney fees and costs it incurred in defending him. Another attorney, J. Randall Andrada, represented ACBHS and Avellar. Finally, Joseph J. Minioza, of Ericksen, Arbuthnot, Kilduff Day & Lindstrom, represented Diversified.
On December 12, 2003, plaintiffs dismissed Spherion without prejudice. During the summer of 2004, the parties participated in a mediation session but apparently were unable to settle the case. In late October 2004, plaintiffs reached a settlement with ACBHS, Avellar, and Diversified. Neither Spherion nor Caminero were parties to the settlement agreement and neither contributed any money toward settlement. Pursuant to the settlement agreement, plaintiffs agreed to release their claims against ACBHS, Avellar, and Diversified in exchange for consideration. They also agreed to dismiss the underlying action with prejudice. Plaintiffs did not release their claims against Caminero. In April 2005, plaintiffs dismissed the entire underlying action with prejudice.
There appears to be some confusion regarding whether the underlying action settled at the mediation. In a case management statement filed by plaintiffs in the underlying action, plaintiffs’ counsel stated that the mediation “ended unsuccessfully on 8/19/04” and that “[s]ettlement has been stalled . . . by [Caminero’s] refusal to waive his right to sue for malicious prosecution.” But in a declaration filed in the malicious prosecution action, Andrada declared that he was “present at the mediation which resulted in settlement of the underlying case. . . .”
The Malicious Prosecution Lawsuit
In April 2006, Caminero filed a malicious prosecution complaint against plaintiffs and their attorneys. Caminero’s complaint described the absence of evidence supporting plaintiffs’ sexual harassment claim and alleged, among other things, that plaintiffs and their attorneys acted without probable cause in filing the underlying lawsuit and maintaining it after the “outrageous and unfounded allegations came to light in the early states of discovery[.]” Caminero further alleged that he was not a party to the settlement agreement and that he had not authorized his attorney to pay any monetary sums to plaintiffs. Finally, he alleged that plaintiffs’ voluntary dismissal of the lawsuit “without consideration” constituted a termination favorable to him.
The Special Motions to Strike
Kapic and the attorneys filed separate motions to strike the complaint pursuant to section 425.16. In May 2007, the trial court [Judge Ford] denied Kapic’s motion. The court explained that Caminero had “show[n] that the underlying lawsuit against him was voluntarily dismissed by [ ] Kapic. A voluntary dismissal is generally considered a favorable termination. Although there is evidence before the Court that all parties to the underlying action other than [Caminero] entered into a settlement, the terms of the settlement are confidential and there is no evidence offered to show that the settlement required the dismissal of [Caminero]. If the settlement did not require [ ] Kapic to dismiss [Caminero], the fact that there was a settlement is not a basis for the Court to find that [Caminero] cannot make out a prima facie showing of the element of ‘favorable termination.’” The court also concluded that Caminero had established a prima facie showing that Kapic lacked probable cause and that she acted with malice. With regard to the attorneys’ motion to strike, the court granted the motion, concluding that Caminero had not made a prima facie showing that the attorneys “lacked ‘probable cause’ to institute the underlying action.”
In June 2007, Chung filed her own special motion to strike. She argued that Caminero could not establish a substantial probability of prevailing because the underlying action did not terminate in Caminero’s favor. In a declaration in support of the motion Chung stated, among other things, “I was made aware that all of the parties were prepared to settle, except Caminero, individually. I was told that the dismissal of all defendants, including Caminero, was a necessary and conditional term of the settlement—despite Caminero’s refusal to participate. To achieve overall settlement, I therefore, consented to the dismissal of Caminero. The case was dismissed on April 26, 2005.” Chung also filed the settlement agreement under seal.
The settlement agreement has been filed under seal in this court pursuant to California Rules of Court, rule 8.160.
Caminero’s Opposition
In opposition to the motion, Caminero submitted hundreds of pages of declarations, deposition transcripts, and other documents. Among the declarations were those of Ortman, Andrada, and Minioza, the three attorneys in the underlying action. In the first declaration, Caminero’s defense counsel, Ortman, averred that he represented Caminero and Spherion in the underlying litigation. Ortman stated that he had reviewed the settlement agreement and that “[n]either Spherion nor Caminero were a party to that Agreement, and neither Spherion nor Caminero required nor consented to the references to Caminero therein, or any other language of that agreement. Spherion was not required to, nor did it give any consideration for the dismissal of [ ] Caminero in the underlying case. Spherion did not require or request the dismissal of [ ] Caminero from the underlying litigation.” Ortman stated: “I am informed and believe that Plaintiffs dismissed the complaint in the underlying case . . . following signatures by the parties of negotiated releases and payment of a confidential sum of money to the plaintiffs by other defendants. . . . [Caminero] paid no money to plaintiffs and no money was paid on his behalf by Spherion.”
In the second declaration, Andrada averred that he represented ACBHS and Avellar in the underlying action. He also averred: “[A]lthough [ACBHS] and Mr. Avellar required that the underlying case against them be dismissed with prejudice, they did not require the dismissal of Michael Caminero. No money was paid by or for my clients on behalf of Michael Caminero.” And in the third declaration, Minioza averred that he represented Diversified in the underlying action and that “although Diversified required that the underlying case against it be dismissed with prejudice, Diversified did not require the dismissal of [ ] Caminero. Diversified paid no money for or on behalf of [ ] Caminero; and therefore, could not have required his dismissal a condition of the settlement in the underlying case.”
Although Chung did not object to the attorneys’ declarations, the court [Judge Dombrink] excluded the “[t]he testimony of attorneys about what was said at the mediation” pursuant to Evidence Code section 1119. The court did not identify which portions of the attorneys’ declarations were admissible, nor did the court specify what it was excluding. Caminero did not seek clarification of the court’s ruling, but he contends on appeal that the exclusion of the attorneys’ testimony was an abuse of discretion because the court mistakenly concluded the underlying action settled at the mediation. We need not reach Caminero’s argument regarding the exclusion of the attorneys’ testimony because, as we discuss below, Caminero has created a factual dispute without “[t]he testimony of attorneys about what was said at the mediation.”
Caminero submitted a case management statement filed by plaintiffs in the underlying action on August 31, 2004. In that document, plaintiffs’ counsel stated that “[s]ettlement has been stalled . . . by [ ] Caminero’s refusal to waive his right to sue for malicious prosecution.” Caminero also offered a declaration filed by plaintiffs’ counsel in the underlying action on October 1, 2004. In that declaration, plaintiffs’ counsel moved for a continuance of an upcoming case management conference and averred that: “[t]he parties are deciding between two settlement proposals that are circulating among them. . . . [¶] Since the last Case Management Conference, the parties have been working diligently toward resolving the issue of whether the entire case will be resolved or whether . . . Caminero will remain a party. This week the Defendants communicated to Plaintiffs that they will not oppose Caminero’s remaining in the case provided there are certain changes in the terms and the amount of the settlement.”
Caminero also submitted the declarations of Larry Regas, Julie Fairless, and Andy Csepely. Regas, Fairless, and Csepely averred that they worked in close proximity to Caminero and plaintiffs at ACBHS. They stated that they never saw Caminero engage in inappropriate behavior, nor did they hear Caminero make sexual references toward Chung. They further averred that plaintiffs did not appear to be “stressed or uncomfortable” around Caminero. In his declaration, Regas stated that Chung “did computer research concerning sexual harassment cases, and discussed the value of sexual harassment lawsuits” before and after reporting Caminero’s alleged sexual harassment. According to Regas, Chung boasted, “‘They’re going to pay.’”
Caminero also presented hundreds of pages of deposition testimony, including the testimony of Renee Marzett and Natalie Courson, both of whom worked at ACBHS. During her deposition, counsel for plaintiffs asked Marzett numerous questions about whether she heard or saw specific behavior that formed the basis of plaintiffs’ allegations. For example, plaintiffs’ counsel asked Marzett whether Caminero told Chung that her “boyfriend is a lucky guy.” In response, Marzett remarked, “Who gave you these questions? . . . . This is . . . crazy. Stuff like this never happened.” Marzett also testified that she never heard Caminero tell Chung that she was beautiful or make specific comments about Chung’s clothing or hair. Finally, Marzett testified that she did not see Caminero say or do anything that she perceived as sexually harassing or offensive towards plaintiffs. In her deposition, Courson testified that she felt that Chung had been dishonest about her sexual harassment complaints. Courson explained that Chung “tried to take . . . things that [ ] happened in the office and use them as workplace retaliation.”
Caminero also offered testimony from his deposition wherein he denied all of Chung’s allegations. He also presented two declarations of his own. In the first declaration, he denied plaintiffs’ allegations and stated, “At no time did I ever make sexual remarks, or engage in improper touching of [plaintiffs]. I conducted myself in a professional manner at all times over the more than a year that I worked with Ms. Chung, and the several months I worked with Ms. Kapic.” In a supplemental declaration, he averred that he was not a party to the settlement agreement and had no knowledge of the terms in that agreement. He stated that he “adamantly refused to participate in the settlement and pay any monetary sums to [plaintiffs]” because he believed he was “innocent of the sexual harassment allegations[.]” He also stated that he “never authorized [his] employer Spherion to pay sums to [plaintiffs] . . .” and that “[n]o monetary payment was made on [his] behalf[.]”
Caminero presented the declaration of Denise Stokes, a personnel officer at ACBHS. In May 2003, Stokes interviewed 12 individuals who worked at ACBHS and prepared an 18-page investigation report summarizing the interviews. Her declaration attached the investigative report; in it, each person Stokes interviewed denied seeing or hearing Caminero sexually harass plaintiffs. Finally, Caminero attached the order granting the attorneys’ motion to strike and denying Kapic’s motion.
The Court’s Ruling
Following a hearing, the trial court [Judge Dombrink] granted Chung’s motion to strike. The court concluded that “[Caminero] cannot establish a favorable termination of the underlying action. The parties agreed in the confidential Settlement Agreement and Release that [Caminero] would be dismissed from the underlying action. The Court finds on the basis of the terms of the settlement that the dismissal was necessary to effectuate the overall settlement.” Citing Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335-1336 (Villa), the court explained that “[a]ssuming that there was evidence that [plaintiffs] wanted the language dismissing [Caminero] to be included in the settlement agreement, the Court still must conclude that the dismissal was necessary to effectuate the settlement. . . . Under the circumstances presented, it is clear that the dismissal resulted from the settlement and leaves open the question of [Caminero’s] liability to Chung, so it cannot be considered a favorable termination” for Caminero. The court also noted that “it is undisputed that [Caminero] accepted the benefits of the defense provided by the employer Defendants. Under the circumstances, he is estopped to claim that his co-defendant did not have the authority to consent to his dismissal.”
On October 11, 2007, the court entered a judgment dismissing Caminero’s malicious prosecution complaint. Later that month, Chung filed a motion for attorney fees and costs. On December 14, 2007, the court granted the motion and awarded Chung $8,047.00. Caminero timely appealed from the judgment and from the order awarding attorney fees. We consolidated the appeals for purposes of briefing, oral argument, and decision.
DISCUSSION
Resolving the merits of a special motion to strike requires “a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699 (Overstock).) Caminero concedes that Chung made a threshold showing that the malicious prosecution action arose from protected activity. As a result, we consider only whether Caminero has met his burden of demonstrating a probability of prevailing on his malicious prosecution claim. (Overstock, supra, 151 Cal.App.4th at p. 699.)
“To establish a probability of prevailing, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations].” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).) The process used to make this determination “is similar to the process used in determining motions for nonsuit, directed verdict or summary judgment.” (Ross v. Kish (2006) 145 Cal.App.4th 188, 197 (Ross).) “‘[T]he court does not weigh the evidence or make credibility determinations. [Citations.]’ Rather, once the plaintiff makes a prima facie showing of facts which would support a judgment in his or her favor, the court will ‘consider [ ] the defendant’s opposing evidence, but only to determine if it defeats the plaintiff’s showing as a matter of law. [Citations.]’” (Id.at p. 197; see also Soukup, supra, 39 Cal.4that p. 291 [to resolve a special motion to strike, the trial court must “accept as true the evidence favorable to the plaintiff. . . .”].)
“We review the trial court’s ruling on a section 425.16 motion de novo.” (Chabak, supra, 154 Cal.App.4th at p. 1510; Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) As in the trial court, “we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated [the evidence] submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup, supra, 39 Cal.4th at p. 269, fn. 3; see also Overstock, supra, 151 Cal.App.4th at p. 694, fn. 7.)
I.
The Trial Court Erred in Granting Chung’s Special Motion to Strike
A. Favorable Termination
To establish malicious prosecution, Caminero must prove that the underlying action: (1) terminated in his favor; (2) was brought without probable cause; and (3) was initiated with malice. (Soukup, supra, 39 Cal.4th at p. 292; see also Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.) The first issue we consider is whether the underlying action terminated in favor of Caminero.
The general rule is that a voluntary dismissal is “presumed to be a favorable termination on the merits, unless otherwise proved to a jury.” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1399 (Sycamore); Eells v. Rosenblum (1995) 36 Cal.App.4th 1848, 1855.) Some California courts, however, have held that voluntary dismissal does not constitute a favorable termination where the dismissal results from a negotiated settlement agreement. (See, e.g., Villa, supra, 4 Cal.App.4th at pp. 1335-1336; Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 412; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 29; Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814; Haight v. Handweiler (1988) 199 Cal.App.3d 85, 88.)
In Villa, Division Three of this court held that a dismissal following a settlement agreement did not constitute a favorable termination even where the defendant did not consent to the settlement and did not pay anything to settle the case. (Villa, supra, 4 Cal.App.4th at p. 1336.) There, a man who had been arrested by a police officer employed by the City of Alameda (City) sued the police officer and the officer’s employer. The City provided a defense for all of the defendants and bore the costs of representation. (Id. at pp. 1330-1331.) Eventually, the attorneys representing the City and all named police officers negotiated a settlement wherein the plaintiff agreed to dismiss the lawsuit in exchange for the City’s waiver of its right to seek costs and attorney fees. (Ibid.) One police officer, Officer Villa, objected to the settlement but his attorney argued that the City had a right to settle the lawsuit on the officer’s behalf—and over his objection—because “the City had borne all the expense of [the officer’s] indemnification and defense, and was arranging for the dismissal of the lawsuit with no actual or potential liability to [him].” (Id. at p. 1332.) With the parties and their attorneys present in open court, the trial court approved the settlement and dismissed the lawsuit. (Id. at pp. 1332-1333.)
Officer Villa filed a malicious prosecution lawsuit against the plaintiff in the underlying action and others. The plaintiff moved for summary judgment on the grounds that the settlement of the underlying lawsuit precluded the officer from establishing a favorable termination. (Villa, supra, 4 Cal.App.4th at p. 1333.) The trial court granted summary judgment and the police officer appealed, contending that the dismissal was a favorable termination because he objected to the settlement and did not participate in it. (Id. at pp. 1334, 1336.) The Villa court held that the officer could not establish a favorable termination because the dismissal was “necessary to effect the settlement with the City.” (Id. at p. 1336.) The court offered three reasons for its conclusion: (1) “the terms of the settlement . . . required the dismissal of all the defendants, including [the officer];” (2) “[t]he City could not realize the benefits of settling the litigation . . . unless the action against [the officer] was simultaneously terminated. Otherwise, the City would continue to be exposed to potential liability on [the officer’s] behalf . . . and would therefore still be a participant in the litigation;” and (3) “[a] party may not voluntarily accept the benefits of a settlement negotiated and accepted on the party’s behalf by an attorney, and at the same time disavow the settlement to the extent it is against his or her perceived interests.” (Id. at pp. 1336-1337.)
Relying on Villa, the trial court here concluded that the dismissal was not a favorable termination for Caminero because, according to the “terms of the settlement” agreement, the dismissal was “necessary to effectuate the overall settlement.” But Villa is inapposite. In Villa, the police officer was in the courtroom with the attorneys for each side when the settlement agreement was announced to the court. (Villa, supra, 4 Cal.App.4th at p. 1332; see also Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1810 (Fuentes).) The court—after the attorneys for each side accepted the terms of the settlement on behalf of their respective clients—entered an order dismissing the action “with prejudice, pursuant to the stipulation ‘entered into by the parties by and through their counsel of record.’” (Villa, supra, 4 Cal.App.4th at p. 1333.) Here, the parties and their attorneys were not before the court, and they did not enter into a stipulation to dismiss the action. In fact, there is no evidence in the record that Caminero was even aware that the parties had reached a settlement: neither Caminero nor his attorney was present when the settlement was reached, and Caminero was not a party to the settlement agreement. And unlike the police officer in Villa, Caminero has never conceded that the terms of the settlement required the dismissal of all of the defendants. (Id. at p. 1336; see, e.g., Fuentes, supra, 38 Cal.App.4that p. 1810.)
Moreover, the settlement agreement does not contain any language stating that Caminero’s dismissal was “necessary to effectuate the overall settlement” or that the settlement could not be accomplished unless Caminero was dismissed. Without citing to a particular provision of the settlement agreement, Chung claims that a “necessary term” of the agreement “was that all defendants be dismissed in exchange for a release of all claims.” (Original italics.) Not so. Plaintiffs did not agree to dismiss their clams against Caminero.
Caminero submitted evidence which, if believed by the trier of fact, would establish that his dismissal was not required to settle the underlying action. A declaration filed by plaintiffs’ counsel in the underlying action stated that defendants had “communicated to Plaintiffs that they will not oppose Caminero’s remaining in the case provided there are certain changes in the terms and amount of the settlement.” This declaration creates an inference that dismissing Caminero from the underlying action was not “necessary to effectuate the settlement” because ACBHS, Avellar, and Diversified were prepared to settle even if Caminero remained a party to the lawsuit. As a result, Caminero created a triable issue regarding whether his dismissal from the underlying action was necessary to achieve settlement with ACBHS, Avellar, and Diversified.
The evidence Chung submitted in support of her motion did not defeat Caminero’s evidentiary showing “as a matter of law.” (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) In her declaration, Chung stated, “I was told that the dismissal of all defendants, including Caminero, was a necessary and conditional term of the settlement—despite Caminero’s refusal to participate. To achieve overall settlement, I therefore, consented to the dismissal of Caminero.” The evidence Caminero submitted conflicted with Chung’s declaration and created a factual dispute regarding whether his dismissal was “necessary to effectuate the settlement.” This factual dispute was for the trier of fact, not the trial court, to resolve. (Jarrow, supra, 31 Cal.4th at p. 741, fn. 10.)
Caminero objected to this statement on multiple grounds, but the trial court overruled his objections. In a footnote in his opening brief, Caminero contends Chung’s statement was inadmissible hearsay and, as a result, the court’s ruling was an abuse of discretion. While Caminero’s contention may have merit, the trial court appears not to have relied on Chung’s statement in granting the motion to strike. In any event, we must reject Caminero’s argument because he has not supported it with a citation to any relevant authority. (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 406, fn. 15.)
As noted above, the trial court stated, “[a]ssuming that there was evidence that [plaintiffs] wanted the language dismissing [Caminero] to be included in the settlement agreement, the Court still must conclude that the dismissal was necessary to effectuate the settlement.” A trial court cannot “assume” the existence of evidence. Either there is evidence before the court or there is not. The court excluded testimony from Andrada, Ortman, and Minioza regarding Chung’s purported desire to include particular language in the settlement agreement. As a result, the court could not rely on that testimony to grant Chung’s motion to strike.
The trial court also determined that the underlying action did not terminate in favor of Caminero because it left “open the question of [Caminero’s] liability to Chung[.]” ““‘A termination [by dismissal] is favorable when it reflects the “opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of the defendant.’” [Citation.] . . . [¶] . . . The focus is not on the malicious prosecution plaintiff’s opinion of his innocence, but on the opinion of the dismissing party.” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1056-1057 (Contemporary Services), original italics.) “If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808; see also Minasian v. Sapse (1978) 80 Cal.App.3d 823-828.)
Fuentes is instructive. There, a woman who had been arrested by several City of Alameda police officers filed a federal civil rights action against the officers and others, including the police chief and the City of Alameda. (Fuentes, supra, 38 Cal.App.4th at p. 1805.) During settlement discussions, the attorney representing the defendants indicated that the police officers were reluctant to settle the case. (Ibid.) Defense counsel told plaintiff’s counsel that “‘[t]he officers have now refused even to consent to a settlement if there is no requirement to sign releases. No settlement is now possible.’” (Ibid.) Later, however, the attorneys met with the federal court judge in chambers “to set forth the terms of a settlement they had reached.” (Id. at pp. 1805-1806.) The officers were not present. (Id. at p. 1806.) Several months later, the plaintiff filed two separate documents. One document provided that the plaintiff would dismiss her action against defendants with prejudice. The document was signed only by the plaintiff and did not mention settlement. (Id. at p. 1807.) The second document provided that “‘plaintiff . . . and defendants . . . having fully settled and resolved this matter . . . plaintiff hereby dismisses with prejudice this action against the said defendants.’” (Ibid.) This document was signed by the city manager of Alameda, the police chief, the plaintiff, and by the federal judge. (Ibid.) It was also approved as to form by the plaintiff’s attorney and an attorney for the City of Alameda. (Ibid.)
This same arrest gave rise to the Villa case. (See Fuentes, supra, 38 Cal.App.4th at p. 1803, fn. 2.)
The police officers filed a malicious prosecution lawsuit against the plaintiff in the underlying suit and others. The trial court granted summary judgment against the officers on the ground that the federal lawsuit had not terminated in favor of the officers. (Fuentes, supra, 38 Cal.App.4th at pp. 1802-1803.) Division Four of this court disagreed and reversed. It held that a conflict in the circumstances explaining the dismissal of the officers precluded the trial court from granting summary judgment. (Id. at p. 1811.) The court noted that the attorney for the plaintiff in the underlying action “maintained that a dismissal of the case against the [police] officers was a necessary condition of any settlement . . . [and] testified that none of the officers objected to having his case dismissed.” (Id. at p. 1809.) The court also noted that, in contrast, defense counsel “testified that while there was a settlement between [the plaintiff] and the city and its police chief, ‘[t]here was no settlement on behalf of the officers.’” (Ibid.) Noting this factual conflict, the Fuentes court held that the trial court erred when it concluded that there was no genuine dispute that the dismissal of the officers in the underlying action was a condition of the settlement between the plaintiff, the city, and the police chief. (Id. at p. 1811.)
As in Fuentes, there is a conflict in the evidence regarding the circumstances surrounding the dismissal. As noted above, Chung averred that she agreed to dismiss the case because someone told her that it was a “necessary and conditional term of the settlement[.]” But Caminero offered evidence—in the form of declarations and deposition testimony from former coworkers—which created an inference that Chung’s decision to dismiss the underlying action was motivated by her awareness that her claims were groundless. (See, e.g., Contemporary Services, supra, at p. 1057; Ross, supra, 145 Cal.App.4th at p. 198 [evidence submitted in opposition to the motion to strike “permitted the reasonable inference that [the] allegations . . . were groundless”]; Sycamore, supra, 157 Cal.App.4th at p. 1400 [dismissal of the underlying action “was motivated by a recognition that most of the claims [in the underlying] complaint were meritless”].) (Id. at p. 1400.) Because the “determination of the reasons underlying the dismissal [was] a question of fact” (Fuentes, supra, 38 Cal.App.4th at p. 1808), the trial court improperly granted Chung’s motion on the grounds that the dismissal did not resolve the merits of Caminero’s liability to Chung.
Finally, the trial court concluded that Caminero could not establish a favorable termination because he—like the police officer in Villa—“accepted the benefits of the defense provided by the employer Defendants” and was therefore “estopped to claim that his co-defendant did not have authority to consent to his dismissal.” Villa, however, does not assist Chung on this point. In Villa, counsel for the City advised the court during a hearing that he appeared “‘on behalf of all defendants.’” In response, the police officer “did not dispute this statement.” (Villa, supra, 4 Cal.App.4th at p. 1332; Fuentes, supra, 38 Cal.App.4that p. 1810.) Here, and in contrast to Villa, none of the parties to the settlement agreement have stated—in open court or otherwise—that they were appearing on behalf of Caminero. And unlike the police officer in Villa, Caminero has never acknowledged that the so-called “employer Defendants” represented him.
On appeal, Chung claims that ACBHS “picked up Caminero’s defense” and negotiated a settlement on his behalf. Chung’s citation to the record does not support this assertion.
In addition, the trial court’s failure to identify which “employer” defendant provided a defense for Caminero begs the following questions: (1) who are the “employer defendants;” (2) which of the “employer defendants” provided Caminero with a defense; and (3) which “co-defendant” had the authority to consent to his dismissal? In their respective declarations, Ortman averred that he represented Caminero and Spherion in the underlying action; Andrada stated that he represented ACBHS and Avellar; and Minioza declared that he represented Diversified. Together, these declarations created an inference that neither ACBHS nor Diversified defended Caminero in the underlying action. If the alleged “employer defendants” did not defend Caminero, neither entity could have had the authority to consent to his dismissal. And Chung did not offer any evidence that an “employer” assumed the costs of Caminero’s defense or agreed to hold him harmless for his costs in continuing his defense as the sole remaining defendant.
Viewing the evidence in the light most favorable to Caminero and indulging—as we must—every legitimate inference from the evidence in his favor, we conclude that Caminero established a triable issue regarding whether his dismissal was required to settle the underlying action and whether the dismissal reflected the merits of the underlying action. Accordingly, the trial court erred in granting Chung’s special motion to strike on the basis that the underlying action did not terminate in favor of Caminero.
B. Probable Cause
To establish a reasonable probability of prevailing, Caminero was also required to prove the second element of a malicious prosecution claim: that Chung brought the underlying action without probable cause. (Soukup, supra, 39 Cal.4th at p. 292.) “The question of probable cause is ‘whether as an objective matter, the prior action was legally tenable or not.’” (Id., quoting Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 868.) A litigant lacks probable cause if he or she “relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Soukup, supra, 39 Cal.4th at p. 292, quoting Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 597 [“‘In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim’”].) Additionally, probable cause must exist “for every cause of action advanced in the underlying action.” (Soukup, supra, at p. 292; see also 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 506, pp. 744-745.)
Caminero contends that he presented evidence that, if believed by the trier of fact, was sufficient to establish that Chung filed the underlying lawsuit without probable cause. We agree. First, Caminero disputed all of plaintiffs’ allegations in his declarations. Second, Regas, Fairless, and Csepely stated in their declarations that they never heard or saw Caminero make sexual references toward Chung. Third, Marzett and Courson testified that they did not observe Caminero sexually harass plaintiffs. Finally, the investigative report attached to Stokes’s declaration flatly contradicted Chung’s sexual harassment allegations.
Chung claims that she filed the underlying action as a result of a “good faith, collaborative attorney-client effort” with her counsel, McQuaid. Without actually citing to the portion of the record where McQuaid’s declaration appears, Chung argues that it establishes that the claims in the underlying action were “supported by substantial evidence and a well-recognized legal theory.” In the court below, the trial court sustained all of Caminero’s objections to McQuaid’s declaration. By failing to challenge the trial court’s evidentiary rulings on appeal, Chung has waived any argument that the excluded portions of McQuaid’s declaration may be used as evidentiary support for her motion to strike. (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 317, fn. 6.)
Finally, we are not persuaded by Chung’s suggestion that Caminero’s lawsuit is barred by the litigation privilege. Civil Code section 47 codifies the litigation privilege and provides that communications made in certain situations, including a judicial proceeding or any other official proceeding authorized by law, are absolutely privileged and therefore immune from tort liability. (Civ. Code, § 47, subd. (b); see also Rubin v. Green (1993) 4 Cal.4th 1187, 1193.) The litigation privilege, however, does not apply to actions for malicious prosecution. (Silberg v. Anderson (1990) 50 Cal.3d 205, 216; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1492, fn. 7.) Accordingly, we conclude that Caminero made a prima facie showing that Chung filed the underlying action without 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.’ [Citations.] ‘Suits with the hallmark of an improper purpose’ include, but are not necessarily limited to, ‘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.”’”” (Sycamore, supra, 157 Cal.App.4th at p. 1407.)
Chung contends that she brought the underlying action “without malice” but she does not cite any evidence, nor any cases, to support that assertion. Accordingly, we reject her argument. Caminero offered evidence that Chung performed internet research regarding the “value of sexual harassment lawsuits” and boasted, “They’re going to pay.” This evidence created an inference that Chung filed the lawsuit to force the defendants in the underlying action “to enter into a settlement, unrelated to the merits of [plaintiffs’] claims.” (Sycamore, supra, 157 Cal.App.4th at p. 1408.) As a result, we conclude that Caminero’s evidence is sufficient to establish a prima facie showing of malice. (Soukup, supra, 39 Cal.4th at pp. 292-293; see also Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.)
II.
The Award of Attorney Fees Must be Reversed
As noted above, the court awarded attorney fees pursuant to section 425.16, subdivision (c) which provides in relevant part that a prevailing party on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.” In light of our conclusion that the trial court erred in granting Chung’s special motion to strike, Chung is not a prevailing party under section 425.16, subdivision (c) and is not entitled to attorney fees and costs pursuant to that statute. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137.)
DISPOSITION
The trial court’s order granting Chung’s special motion to strike pursuant to section 425.16, subdivision (b) is reversed. The matter is remanded with directions to vacate the order and subsequent judgment of dismissal and enter a new order denying the motion. The trial court’s order awarding attorney fees and costs to Chung as the prevailing party pursuant to section 425.16, subdivision (c) is also reversed. Caminero is awarded his costs on appeal.
We concur: Needham, J., Dondero, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) “Section 425.16 is known as the anti-SLAPP statute.” (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1509 (Chabak).) “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1 (Jarrow).)