Opinion
G044516 Super. Ct. No. 30-2010-00340348
01-13-2012
CIMARRON ESCROW, INC., Plaintiff and Appellant, v. PARVIN MIRABADI et al., Defendants and Respondents.
Hall & Bailey and Donald R. Hall for Plaintiff and Appellant. Law Offices of Farrah Mirabel, Farah Mirabel; Law Offices of Craig T. Byrnes and Craig T. Byrnes for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Motion to strike portions of respondents' appendix. Order affirmed. Motion granted.
Hall & Bailey and Donald R. Hall for Plaintiff and Appellant.
Law Offices of Farrah Mirabel, Farah Mirabel; Law Offices of Craig T. Byrnes and Craig T. Byrnes for Defendants and Respondents.
* * *
Plaintiff Cimarron Escrow, Inc. sued defendants Parvin Mirabadi, Pantea Amini, Farrah Mirabel, and the Law Offices of Farrah Mirabel for malicious prosecution. Defendants simultaneously filed three nearly identical motions to strike the complaint on the ground it constituted a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., § 425.16, all further statutory references are to this code unless otherwise stated.) The trial court granted the motions. It found defendants satisfied their burden of establishing Cimarron's action arose from conduct within the scope of section 425.16 and Cimarron failed to make a prima facie showing to support a favorable ruling on the elements of lack of probable cause for the underlying lawsuit and malice.
Cimarron appeals. (§ 425.16, subd. (i).) It concedes defendants' "underlying lawsuit is protected activity," but claims the trial court erred in finding it had failed to demonstrate a reasonable probability of prevailing at trial. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In July 2005, defendants Mirabadi and Amini entered into a real estate purchase contract to buy a vacant parcel of land in Los Angeles County for $225,000. The property was subject to a lien for unpaid taxes and the county had scheduled a tax sale for Monday, August 8. The parties agreed a portion of the purchase price would be used to satisfy the tax liability, but to stop the sale, the delinquency needed to be paid by the close of business on Friday, August 5. (Rev. & Tax. Code, § 3707, subd. (a)(1).)
The escrow instructions signed by the parties named Cimarron as the escrow. One clause provided defendants Mirabadi and Amini would pay taxes and directed Cimarron "to use the money and . . . pay all encumbrances of record necessary without further approval . . . ." Gateway Title Company was designated to obtain a title insurance policy.
By Wednesday morning, August 3, Mirabadi and Amini had deposited into escrow all of the funds needed to complete the purchase. That day, Cimarron wired funds to Gateway sufficient to pay off the outstanding tax lien. The wire missed the bank's 1:00 p.m. deadline and Gateway did not receive the funds until Thursday, August 4. Cimarron's wire transfer documents contained the proper escrow file number and title order number, but Gateway placed the funds in its unclaimed funds account and its title unit did not locate them until Friday morning. At that time, a Gateway employee informed Cimarron the tax lien would be paid that day. Cimarron then closed escrow.
However, Gateway sent the tax payment to the county tax collector by overnight mail, thereby missing the deadline to avert the tax lien sale. On Monday August 8, Gateway recorded a grant deed purporting to transfer title to Mirabadi and Amini and obtained a title insurance policy from Transnation Title Insurance Company in the amount of $225,000. Meanwhile, the tax lien sale proceeded as scheduled and the county sold the property to a third party.
Several months later, Mirabadi and Amini learned they did not own the property. They filed a claim with Transnation and it paid them the $225,000 policy limit.
In July 2006, Mirabadi and Amini, represented by defendants Farrah Mirabel and the Law Offices of Farrah Mirabel, sued Gateway, Transnation, and Cimarron, for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence. The complaint alleged Mirabadi and Amini had a prospective buyer willing to purchase the property from them for $500,000 and the named defendants' failure to obtain a title insurance policy in that amount and failure to timely satisfy the tax lien caused them injury.
Cimarron's counsel sent Mirabel a letter demanding defendants dismiss Cimarron from the lawsuit, claiming his client "complied with its escrow instructions" by "forward[ing] funds in a timely manner to the title company." Counsel enclosed documentation showing the funds transfer. Initially, defendants complied, filing a request to dismiss Cimarron without prejudice.
Gateway and Transnation demurred to the complaint, arguing it constituted an "unsupportable effort to place blame for the tax sale on" them because "[n]either Transnation . . . nor Gateway made any promise to [Mirabadi or Amini] or owed them any duty to protect them from the tax sale . . . ." (Capitalization omitted.) The demurrer was sustained with leave to amend.
Defendants filed a first amended complaint that again named Cimarron as a defendant. As to Cimarron, it stated the same three causes of action, plus counts for breach of fiduciary duty and negligent and intentional misrepresentation. The pleading alleged defendants had received proof from Cimarron's counsel "the funds for payment of the tax lien w[ere] forwarded to Gateway" and "it appeared . . . the funds were transferred . . . timely," but "[b]ased on the arguments raised by . . . Gateway and Transnation" in their demurrer to the original complaint, defendants "had to include Cimarron . . . as a [d]efendant" because the timeliness of the funds transfer "can be disputed by Gateway."
Both Cimarron and Gateway successfully demurred to the first amended complaint. Defendants then filed a second amended complaint naming the same parties as defendants and alleging the same causes of action against Cimarron.
Cimarron again demurred, but this time the court overruled it as to all counts except the second cause of action alleging breach of the implied covenant of good faith and fair dealing. Both Cimarron and Gateway filed answers. Cimarron also cross-complained against Mirabadi and Amini for contractual indemnity, while Gateway and Transnation cross-complained against Cimarron for equitable indemnity.
The second amended complaint's first count alleged Mirabadi and Amini "formed a contract with Cimarron, which consisted of both written instructions and an oral agreement" whereby if defendants timely delivered the funds to Cimarron, it would, "with the help of Gateway, . . . pay off the tax lien by August 5, 2005." While defendants performed their end of the bargain Cimarron allegedly breached the agreement primarily by waiting two days to wire the funds to Gateway and "failing to follow up with Gateway as to whether Gateway had paid the tax lien." The negligence count alleged Cimarron and Gateway "were paid . . . to perfect the title[] by paying off all liens," but they "failed to timely pay the tax lien" or "let [Mirabadi and Amini] know that they failed to pay the tax lien." The deceit counts were based on alleged misrepresentations "that the tax lien would be paid off in a timely manner" and concealment of the truth by "deliver[ing] and record[ing] a defective title, leading [Mirabadi and Amini] to believe that the land was theirs." Finally, the breach of fiduciary duty cause of action was also based on "the established contractual relationship between [Cimarron] as escrow holder[] and [Mirabadi and Amini] as paying clients."
Cimarron moved for summary judgment or summary adjudication. The court granted summary adjudication on the negligent and intentional misrepresentation causes of action, ruling Cimarron had presented undisputed evidence it "first learned that the property had been sold at auction on September 28, 2005, . . . and that after learning of the sale, Cimarron informed [Mirabadi's and Amini's] broker . . . ." It also struck the claim for punitive damages "as the claim for these damages is based upon a fraud theory and no fraud has been established . . . ." On the remaining counts the court denied relief declaring, "[T]here are triable issues with respect to whether [Cimarron] voluntarily assumed a duty to pay the tax lien to prevent the tax sale, whether [Cimarron] breached this duty and whether any breach was at least a concurrent cause of the damages complained of."
Defendants settled with Gateway and Transnation, receiving an additional payment of $27,000. They then proceeded to trial on the claims against Cimarron.
At trial, Mirabadi testified the "main cause" for the failure to timely pay the tax lien was Cimarron's failure to "send the money right away" or "put enough information on th[e wire transfer] paper[s] for [the] title company to act upon it right away." On cross-examination, Mirabadi admitted that, while being deposed, she "'would have had no criticism of anybody'" "'[i]f . . . when Cimarron got the money, that Cimarron would give the money to Gateway on the 4th or 5th and that Gateway would pay the taxes . . . .'"
Defendants also presented the testimony of Dr. Moghadam, a relative of Mirabadi and Amini, who delivered their cashier's checks to Cimarron. Moghadam testified Cimarron employees "promised me . . . that 'we are going to pay the money, the tax . . . . Go home. Don't worry about it. This property is not going to go to auction.'"
In addition, defendants presented expert testimony from Judi Souza, a certified escrow officer. Souza testified when a tax sale is imminent it is prudent for an escrow, after wiring the funds to pay the tax lien to the title company, to follow up by either acquiring a copy of the cashed check or a tax payment receipt, or directly contacting the tax collector's office to confirm payment. She opined Cimarron breached its fiduciary duty to the buyers and sellers in this transaction and its conduct fell below the standard of care.
The trial court entered judgment for Cimarron on both the second amended complaint and its cross-complaint. In its statement of decision, the court found, on the contract count, no agreement existed wherein Cimarron promised to timely pay off the tax lien or, even if there was such an agreement, that Cimarron had breached it.
On the negligence claim, the court held Souza's "testimony . . . concerning the scope of an escrow company's duties" was unpersuasive, Mirabadi and Amini "failed to prove that Cimarron did not properly communicate with Gateway" and, even assuming Cimarron "had a duty to inform [Mirabadi and Amini] . . . that the lien had not been paid," there was '[n]o evidence . . . presented of the date Cimarron . . . discovered" that fact. Finally, on the breach of fiduciary duty count, the court ruled Cimarron's "fiduciary duty [wa]s defined by the escrow instructions and . . . [w]hen properly characterized, it is clear that the duty was not breached." The court also briefly discussed the implied covenant and deceit counts, finding no basis to award Mirabadi and Amini relief on either basis. However, it did conclude Cimarron was entitled to recover attorney fees from Mirabadi and Amini on its cross-complaint's contractual indemnity claim.
Through Mirabel, Mirabadi and Amini appealed the judgment. On appeal, defendants claimed Cimarron had an obligation to pay the funds directly to the tax collector to eliminate the tax lien. To support this theory they cited the language of the escrow instructions, which they asserted either expressly or impliedly imposed a duty on Cimarron. They also argued Cimarron had assumed the duty to directly pay the tax lien. The Court of Appeal rejected these contentions. Giving effect to the entirety of the escrow instructions, the court concluded Cimarron was "expressly authorized . . . to satisfy its duty to pay all encumbrances by delivering the funds to Gateway . . . ." Again, relying on general principles of contract interpretation, the court concluded Cimarron did not have an implied duty to directly pay the tax lien. Finally, the court held Cimarron had not assumed a duty to pay the delinquent taxes citing the trial court's rejection of the evidence supporting that theory, plus defendants' failure to "cite . . . legal authority in support of" it.
Alternatively, defendants argued Cimarron was responsible for Gateway's failure to timely pay the tax lien either because Cimarron's "delegation of the duty to Gateway did not relieve [Cimarron] of its obligation to perform should Gateway fail to do so" or because Cimarron "was liable for Gateway's failure under an agency theory." The appellate court rejected these arguments as well, noting Cimarron "did not assign any obligation it had under the escrow agreement to Gateway" and "[s]ubstantial evidence supports the trial court's conclusions that Gateway was not [Cimarron's] agent." However, while affirming the judgment as to Mirabadi's and Amini's second amended complaint, the Court of Appeal reversed the award of attorney fees to Cimarron under its cross-complaint.
After the Court of Appeal entered its remittitur, Cimarron brought this action for malicious prosecution. Defendants filed three separate anti-SLAPP motions, each arguing Cimarron could not establish a probability of prevailing on the elements of lack of probable cause and malice. The trial court granted the motions, ruling "Cimarron has failed to meet its . . . burden [of] showing . . . it can prevail on two of the . . . essential elements of a cause of action for malicious prosecution; lack of probable cause . . . and malice . . . ."
DISCUSSION
1. Standard of Review
The anti-SLAPP statute declares "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) "Resolution of an anti-SLAPP motion 'requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
As noted, the trial court found and Cimarron concedes its malicious prosecution action against defendants is based on their "protected activity." This case concerns whether Cimarron established the second prong of the analysis, a probability of prevailing.
"To satisfy the second prong, 'a plaintiff responding to an anti-SLAPP motion must "'state[] and substantiate[] a legally sufficient claim.'" [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.] 'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, 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 that submitted by the plaintiff as a matter of law."' [Citation.] If the plaintiff 'can show a probability of prevailing on any part of its claim, the cause of action is not meritless' and will not be stricken; 'once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.' [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) Furthermore, "direct evidence" is not essential to satisfy a plaintiff's probability of prevailing burden since "the proper inquiry in the context of an anti-SLAPP motion 'is whether the plaintiff proffers sufficient evidence for such an inference.' [Citations.]" (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th p. 822.)
On appeal, the trial court's ruling is subject to de novo review. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.)
2. Cimarron's Malicious Prosecution Action
Quoting at length from defendants' pleadings in the underlying action and comparing these allegations with excerpts of their subsequent depositions and trial testimony, Cimarron claims it made a satisfactory showing of a probability of prevailing on its malicious prosecution claim. We disagree.
"To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) "[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause." (Zamos v. Stroud (2004) 32 Cal.4th 958, 970.) Again, there is no issue as to the first element, favorable termination of the prior action on the merits. Only the latter two elements are at issue in this case.
(a) Lack of Probable Cause
"The question of probable cause is 'whether as an objective matter, the prior action was legally tenable or not.' [Citation.] 'A litigant will lack probable cause for his action either if he 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.' [Citation.] 'In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.' [Citation.] Probable cause, moreover, must exist for every cause of action advanced in the underlying action. '[A]n action for malicious prosecution lies when but one of alternate theories of recovery is maliciously asserted . . . .' [Citations.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) However, "probable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.)
As for defendants' breach of contract, negligence, and breach of fiduciary duty counts, the ruling of the trial court in the underlying action denying Cimarron's motion for summary judgment and summary adjudication bars Cimarron's claim that these causes of action, even though ultimately unsuccessful, were prosecuted without probable cause. In Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, the Court of Appeal held, "Because denial of summary judgment is a sound indicator of probable cause, it is sensible to accept it as establishing probable cause defeating a later malicious prosecution suit. Doing so serves the policy . . . to discourage dubious malicious prosecution suits." (Id. at p. 384.)
Roberts explained, "Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present no probable cause. [Citation.]" (Roberts v. Sentry Life Insurance, supra, 76 Cal.App.4th at p. 382.) Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th 811 approved of Roberts's analysis, holding a similar rule applies where malicious prosecution defendants prevailed in the trial court on their anti-SLAPP motion in the prior action even though an appellate court later overturned that ruling. (Id. at pp. 819-820.)
However, Roberts qualified the foregoing rule, noting "there may be situations where denial of summary judgment should not irrefutably establish probable cause." (Roberts v. Sentry Life Insurance, supra, 76 Cal.App.4th at p. 384.) One exception arises "if denial of summary judgment was induced by materially false facts submitted in opposition . . . ." (Ibid.) In its opening brief, Cimarron extensively quotes Souza's testimony, arguing it establishes "the denial of summary judgment" resulted from "misleading if not perjurious" evidence. But as defendants note, the trial court's denial of summary judgment on the contract, negligence, and breach of fiduciary counts was based on more than Souza's expert declaration supporting their opposition to the motion. Thus, we conclude the trial court properly held Cimarron failed to establish a lack of probable cause as to these counts.
As noted, a malicious prosecution suit may be maintained even where the prior "action charg[ed] multiple grounds of liability . . . but not all of those grounds were asserted with malice and without probable cause." (Crowley v. Katleman (1994) 8 Cal.4th 666, 671.) In the prior lawsuit, the court did grant Cimarron's motion for summary adjudication as to the negligent misrepresentation and fraud causes of action and, based thereon, struck defendants' request for punitive damages.
But merely because these counts were dismissed in this manner does not suffice to establish a lack of probable cause. In Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728, the Supreme Court rejected the claim "a malicious prosecution claim predicated . . . on an underlying suit that was terminated on summary judgment with a finding of insufficient evidence should be deemed, as a matter of law, to satisfy the [anti-SLAPP] statute's merits prong." (Id. at p. 742.) "[D]efense summary judgment on the underlying claim does not establish lack of probable cause as a matter of law. '"Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . ."' [Citations.] Accordingly, there is probable cause if, at the time the claim was filed, 'any reasonable attorney would have thought the claim tenable.' [Citation.] Plainly, a claim that appears 'arguably correct' or 'tenable' when filed with the court may nevertheless fail . . . for reasons having to do with the sufficiency of the evidence actually adduced as the litigation unfolds. As defendants point out, every case litigated to a conclusion has a losing party, but that does not mean the losing position was not arguably meritorious when it was pled. [Citation.] And just as an action that ultimately proves nonmeritorious may have been brought with probable cause, successfully defending a lawsuit does not establish that the suit was brought without probable cause. [Citations.]" (Id. at pp. 742-743, fn. omitted.)
Again, while Cimarron established during the pendency of the underlying lawsuit that no factual basis existed for the deceit counts or the punitive damage request, it failed to carry its burden of showing these allegations were legally untenable when defendants initially filed suit. Moghadam testified a Cimarron employee promised him the tax lien would be timely extinguished and that Mirabadi and Amini would own the property. There is some conflict in the record as to when and from whom Mirabadi and Amini first learned the tax lien had not been timely paid and they did not own the property. But it is clear there was a delay in the communication of this information. Also, while Cimarron initially claimed it had fully complied with its duties as an escrow, Gateway's response to the initial complaint suggested that might not be the case. At this early stage of the litigation it was not necessary for defendants to conclusively determine what occurred before filing suit. As the Supreme Court noted in Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th 811, the probable cause standard "reflects 'the important public policy of avoiding the chilling of novel or debatable legal claims.' [Citation.] Attorneys and litigants . . . '"have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . ."' [Citations.] Only those actions that '"any reasonable attorney would agree [are] totally and completely without merit"' may form the basis for a malicious prosecution suit. [Citation.]" (Id. at p. 817.)
That leaves defendants' second cause of action for Cimarron's alleged breach of the implied covenant of good faith and fair dealing. As Cimarron argues a claim of this nature was not reasonably tenable in the context of this case. "Because the covenant of good faith and fair dealing essentially is a contract term that aims to effectuate the contractual intentions of the parties, 'compensation for its breach has almost always been limited to contract rather than tort remedies.' [Citations.] At present, this court recognizes only one exception to that general rule: tort remedies are available for a breach of the covenant in cases involving insurance policies. [Citations.] In the insurance policy setting, an insured may recover damages not otherwise available in a contract action, such as emotional distress damages resulting from the insurer's bad faith conduct [citation] and punitive damages if there has been oppression, fraud, or malice by the insurer [citation]." (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43-44.)
Defendants attempt to argue otherwise, claiming they alleged Cimarron breached "independent duties arising from principles of tort law . . . ." (See Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102.) But the only duties defendants cite are those created by the escrow agreement. They also rely on Koehrer v. Superior Court (1986) 181 Cal.App.3d 1155 for the proposition that they could maintain a bad faith cause of action against Cimarron. But Koehrer was disapproved of on this point in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654. (Id. at pp. 688-700 & fn. 42.)
Consequently, except for the bad faith claim, we conclude Cimarron failed to establish a probability of prevailing on any of the other causes of action asserted by defendants.
(b) Malice
To prevail on the anti-SLAPP motion, Cimarron also had to establish the third element of malice. "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. [Citation.] It may range anywhere from open hostility to indifference. [Citation.]" (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494.)
"Improper purposes can be established in cases in which, for instance: (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 property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim. [Citation.] If the prior action was not objectively tenable, the extent of a defendant's attorney's investigation and research may be relevant to the further question of whether or not the attorney acted with malice. [Citation.]" (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 224-225.)
Here, there is no evidence supporting an inference as to any of the improper purposes identified above. Defendants' apparent purpose for suing Cimarron, Gateway, and Transnation was their belief the failure to timely extinguish the tax lien resulted from the action or inaction of one or all of these parties and this delay precluded them from acquiring property for which they already had a buyer interested in paying them substantially more than their negotiated purchase price.
Cimarron argues an inference of malice is supported by the fact defendants' bad faith cause of action was legally untenable. In Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728, the Supreme Court quoted from Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th 478, stating: "'Merely because the prior action lacked legal tenability, as measured objectively . . . without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor's subjective malicious state of mind.' [Citations.]" (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 743.) Jarrow then declared it "reject[ed the] . . . suggestion that . . . having obtained summary judgment . . . in the underlying litigation establishes as a matter of law, for the purposes of section 425.16, the merits of [a] malicious prosecution claim." (Ibid.)
In support of its argument, Cimarron quotes from Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th 260, which states in part: "'Malice may also be inferred from the facts establishing lack of probable cause.' [Citation.]" (Id. at p. 292.) But "[a]lthough lack of probable cause . . . it is a factor that may be considered," standing "alone [it] does not automatically equate to a finding of malice . . . . [Citation.]" (Ross v. Kish (2006) 145 Cal.App.4th 188, 204.) For example, in Soukup the Supreme Court relied on much more than a mere lack of probable cause for the causes of action alleged in the prior action to support its conclusion the malicious prosecution plaintiff sufficiently presented a prima facie showing the prior action was brought with malice. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at pp. 295-296.)
Here, the facts do not otherwise support an inference of malice from defendants' maintenance of the bad faith cause of action. The sole benefit of that count was the potential to recover tort damages, including punitive damages. But defendants sought the same relief through their negligent misrepresentation and fraud causes of action. Their argument concerning the legal tenability of the bad faith count also reflects the attempt to plead that claim was the result of negligence on the part of counsel, not some improper motive. Therefore, we conclude the trial court properly concluded Cimarron failed to make a prima facie showing it could establish the element of malice in this case.
3. Cimarron's Motion to Strike Portions of Respondents' Appendix
Defendants filed a respondents' appendix that included complete copies of the depositions of five witnesses. Cimarron has filed a motion to strike these depositions from the appellate record on the ground only excerpts of the depositions were part of the record before the superior court when it ruled on the anti-SLAPP motion. Defendants have filed opposition, arguing the complete transcript of one witness, Amini, was part of the trial court record and excerpts of the other four depositions were also before the trial court.
Cimarron has the better argument. California Rules of Court, rule 8.124(g) declares, "Filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file." (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 988.) While defendants argue Amini's entire deposition transcript is part of the appellate record, they provide no record citation to support this claim. If the entire depositions were necessary to support defendants' anti-SLAPP motion, they should have been submitted in reply to Cimarron's opposition to it. Merely because excerpts from the other depositions were introduced, does not allow the inclusion of the entire deposition in the appellate record.
DISPOSITION
The order is affirmed. Appellant's motion to strike portions of respondents' appendix is granted. Respondents are entitled to their costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
O'LEARY, J.
IKOLA, J.