Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CV406333
SIMONS, Acting P.J.
Plaintiff and appellant Eric W. Conner (Conner) appeals from the trial court’s order granting Code of Civil Procedure section 425.16 motions to strike filed by defendants and respondents Janet Spitler (Spitler) and her attorneys, De La Housaye & Associates (DLH). Because the trial court properly concluded that Conner failed to show a probability of prevailing on his malicious prosecution claim, we affirm.
All further undesignated section references are to the Code of Civil Procedure.
BACKGROUND
In January 2005, Dennis Hunter (Hunter) sued Spitler and Conner in the underlying action, to recover proceeds from the sale of certain properties, the purchase of which was funded in whole or part by Hunter. Conner represented Spitler as her attorney at the time of the property sales, and the proceeds were placed into his client trust account. Spitler retained Conner to protect her interests after Hunter was prosecuted on federal drug charges.
Hunter is not a party to this appeal.
In their briefs, both parties make assertions regarding Hunter’s alleged drug dealing, Spitler’s relationship with Hunter, and other background facts of tangential relevance. We disregard those assertions, which are not supported by citations to the record or directly relevant to the issues on appeal.
In March 2006, Spitler, represented by law firm DLH, filed a first amended cross-complaint against Hunter and Conner in the underlying action. Spitler sued Conner for negligence, malpractice, an accounting, conversion, and breach of implied contract. Spitler’s claims arose from Conner’s handling of the proceeds from the sale of the subject properties; Spitler alleged Conner breached his duty to render an appropriate accounting of the proceeds, to hold all of the proceeds entrusted to him pending resolution of all claims, and not to collect unconscionable fees.
In April 2006, Conner filed a cross-complaint in interpleader, and in January 2007 he amended the cross-complaint to assert various claims against Spitler and DLH; this court affirmed grant of section 425.16 motions to strike filed by Spitler and DLH in Conner v. Spitler (Mar. 5, 2009, A119890 & A120106 [nonpub. opn.]).
In August 2007, Hunter dismissed all of his claims with prejudice. In March 2008, Conner moved for summary judgment on Spitler’s cross-complaint. In October 2008, Spitler dismissed without prejudice her cross-complaint against Conner.
In February 2009, Conner filed the present action for malicious prosecution against Spitler and DLH. In April 2009, respondents filed motions to strike Conner’s action under section 425.16. The trial court granted the motions to strike, concluding that Conner had not demonstrated a probability of prevailing on his malicious prosecution claim. This appeal followed.
DISCUSSION
Under section 425.16, subdivision (b)(1), a defendant may move to strike a cause of action “arising from any act... 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....” If the plaintiff cannot demonstrate a probability of prevailing, the trial court must strike the challenged cause of action and award the defendant attorney fees and costs. (§ 425.16, subd. (c)(1); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186.)
There is no dispute that Conner’s malicious prosecution claim arises from protected activity; the only issue on appeal is whether Conner has demonstrated a probability of prevailing on the claim. In order to show 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.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson).) We review de novo the trial court’s order granting respondents’ motions to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
In order to state a claim for malicious prosecution, a plaintiff must plead and prove 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.) The tort of malicious prosecution “is disfavored both because of its ‘potential to impose an undue “chilling effect” on the ordinary citizen’s willingness to report criminal conduct or to bring a civil dispute to court’ [citation] and because, as a means of deterring excessive and frivolous lawsuits, it has the disadvantage of constituting a new round of litigation itself [citation].” (Wilson, supra, 28 Cal.4th at p. 817.)
We conclude Conner has not made a sufficient showing that Spitler’s cross-complaint was brought without probable cause. There is probable cause for an action if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886.) “This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims.’ [Citation.] Attorneys and litigants... ‘ “have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win....” ’ [Citation.] Only those actions that ‘ “any reasonable attorney would agree [are] totally and completely without merit” ’ may form the basis for a malicious prosecution suit.” (Wilson, supra, 28 Cal.4th at p. 817; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743, fn. 13 [“ ‘... 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[s] no probable cause.’ [Citation.]”].)
Respondents also argue Conner failed to show that Spitler’s action was terminated in Conner’s favor and that respondents acted with malice. We need not and do not reach those issues.
Conner contends there was no probable cause for some or all of the causes of action against him in Spitler’s cross-complaint in the underlying action because she admitted she did not have a right to receive the property sale proceeds in sworn testimony during July 2006 State Bar of California disciplinary proceedings against him. During those proceedings she was asked, “What was your opinion... of the funds held by... Conner in his client trust account on your behalf?” She responded, “Well, being that I was not the one that put the money in, I wasn’t really concerned as to-I mean, I wanted it to be there in case the DEA wanted it or... Hunter was granted it. I didn’t ask for nor did I want that money.” Later, she testified she told Conner’s assistant “I know that’s not my money, and, you know, I didn’t-at that point I didn’t know who was going to get it or, you know, I just knew I-it wasn’t mine.” When asked, “was any of that [money] in your opinion yours, ” she answered “No.” Conner asserts that, in light of this testimony, “there is but only one inference that can be reasonably drawn...: the factual allegations upon which the prior action depended were untrue; therefore, [Spitler and DLH] had no probable cause to initiate and maintain the prior action.”
Conner also argues that Spitler’s lack of ownership is shown by the fact that in April 2007 she stipulated to release to Hunter $32,000 in sale proceeds interplead by Conner in the underlying action, apparently in exchange for dismissal of Hunter’s lawsuit against her. However, Spitler’s stipulation that Hunter should receive those funds is not inconsistent with a claim that she was entitled to some portion of the sale proceeds, which were far in excess of $32,000.
Although Spitler’s testimony before the State Bar presented a substantial obstacle to recovery on any of Spitler’s causes of action to the extent they depended on Spitler’s right to receive a portion of the sales proceeds, that testimony was insufficient to establish lack of probable cause, in light of the evidence presented by respondents in support of their motions to strike. In Spitler’s sworn declaration in support of her motion to strike, she averred that “As owner of the real properties at issue in the underlying litigation, given my oral agreements with Dennis Hunter and my personal funding in connection with the monthly mortgage payments, general maintenance and improvements I have made to the properties, I have believed since the inception of the lawsuit through today, that my claims to the sale proceeds and the sums that Eric Conner later converted for his personal use have merit. I also believed at the time that some of the proceeds were owed to Hunter and accordingly, knew Hunter was entitled to a portion of the monies he claimed in the Action he filed against me.” Moreover, in April 2006, Spitler requested funds from the Client Security Fund Commission of the State Bar of California (Commission). In her sworn declaration in support of that application, Spitler described in detail various “personal funds” applied towards purchase, maintenance, and improvement of the real properties at issue. Attached to the exhibit were numerous invoices, statements, and other documents relating to the properties that she averred reflected payments she made with her own funds.
Further evidence that probable cause existed for maintenance of Spitler’s cross-complaint is provided by the Commission’s May 2008 “Tentative Decision.” Following the receipt of testimony and documentary evidence, the decision concluded: “[Spitler] has established that $92,105.81 in entrusted funds came in [Conner’s] hands.... The maximum reimbursable amount to any one Applicant against any one attorney is $50,000. Therefore, the Commission recommends reimbursement of $50,000 to [Spitler].” The Tentative Decision demonstrates that a reasonable attorney could conclude that Spitler had an interest in the sale proceeds.
The Commission reversed the Tentative Decision in its Final Decision; Spitler challenged the Final Decision in a February 2009 petition for writ of mandate filed in the Superior Court for the County of Contra Costa. In any event, the Final Decision did not actually conclude that Spitler had no interest in the sale proceeds; the decision concluded only that she had failed to prove the amount of her interest, she had already been reimbursed for certain amounts, and other amounts were not recoverable under the Commission’s rules.
As the California Supreme Court has explained, “A litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortiously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious.” (Wilson, supra, 28 Cal.4th at p. 822.) In this case, respondents put forth competent evidence in support of their motions to strike that Spitler did, in fact, have some interest in the proceeds of the real property sales conducted by Conner. That evidence was sufficient for a reasonable attorney to conclude the claims in the cross-complaint were tenable, despite the need to explain Spitler’s testimony to the contrary before the State Bar. Accordingly, the trial court did not err in concluding that Conner could not establish lack of probable cause as a matter of law. The section 425.16 motions to strike were properly granted.
Because there is evidence that Spitler put some of her own funds into the properties, for purposes of the probable cause determination it is irrelevant whether the cross-complaint improperly also sought to recover, as Conner suggests in passing, “Spitler’s just deserts [sic] for laundering Hunter’s drug profits.” (Italics omitted.)
Conner argues for the first time in his reply brief that Spitler’s testimony during the State Bar proceedings constituted a “judicial admission” that bound the trial court and respondents. That contention has been forfeited due to Conner’s failure to present it in his opening brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“ ‘Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]’ [Citation.]”].)
DISPOSITION
The trial court’s order is affirmed. Costs to respondents, Spitler and DLH.
We concur. NEEDHAM, J., BRUINIERS, J.