Opinion
A148383 A148908
12-08-2017
SAMUEL KORNHAUSER, Plaintiff and Appellant, v. PHYLLIS E. ANDELIN, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV1503043)
Plaintiff and appellant Samuel Kornhauser (appellant) filed a malicious prosecution action against defendant and respondent Phyllis E. Andelin (respondent), an attorney who represented appellant's former clients in an unsuccessful prior action for attorney malpractice against appellant. Respondent moved to strike appellant's action pursuant to the anti-SLAPP statute, section 425.16 of the Code of Civil Procedure (Section 425.16). The trial court granted the motion and awarded attorney fees to respondent. We affirm.
"SLAPP is an acronym for 'strategic lawsuit against public participation.' " (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1 (Jarrow Formulas).)
BACKGROUND
The present case arises from an underlying dispute regarding the ownership of a nutritional supplements company called Life Enhancement Products, Inc. (LEP). In or around 2002, a conflict arose between LEP co-founder Will Block and his former business associate Gail Valentine over, among other things, her claim of 50% ownership of LEP and funds she took from the company. Block retained appellant to represent him and LEP.
In September 2002, appellant filed an action against Valentine on behalf of Block and LEP in Sonoma County Superior Court (Valentine Action). Valentine moved to disqualify appellant from representing LEP and moved for appointment of a receiver over the company. The superior court disqualified appellant from representing LEP and appointed a receiver to oversee the company. For the next five years appellant represented Block in relation to his claim of ownership of LEP; in September 2007 the receiver's attorneys filed an amended complaint on behalf of LEP, seeking to recover certain funds from Valentine. Following trial in November 2007, a judgment was entered awarding Block full ownership of LEP and awarding LEP $89,023.56 in damages (including interest), $106,050 in punitive damages, and $30,531.94 in costs from Valentine. Appellant unsuccessfully sought an award of attorney's fees from Valentine on behalf of Block.
Following entry of the judgment, appellant continued to represent Block and, in January 2008, recommenced representation of LEP. Valentine's primary asset was a parcel of real property she owned in Hawaii. The judgment against Valentine was not recorded in Hawaii and the property was sold in May 2008 free of any lien related to the judgment. The parties dispute whether appellant was representing LEP for the purpose of enforcing the judgment in Hawaii. There were prior liens on the Hawaii property and the parties dispute whether Valentine received proceeds from the sale that could have satisfied the judgment in favor of LEP.
In April 2008, appellant demanded $700,000 in attorney fees plus $103,000 in costs from Block. Block paid some but not all of the amount requested by appellant.
In June 2010, respondent, on behalf of Block and LEP, filed a first amended complaint against appellant asserting causes of action for professional malpractice, breach of contract, and breach of fiduciary duty (Malpractice Complaint or Malpractice Action). The Malpractice Complaint included various allegations relating to appellant's handling of the Valentine Action, including that he sought excessive fees and that he failed to perfect the judgment. Appellant's motion for summary judgment was denied, but appellant prevailed on all of the claims against him at trial, which ended in August 2014.
In August 2015, appellant filed the present action for malicious prosecution against respondent for her representation of Block and LEP in the Malpractice Action. In November, respondent moved to strike the action under Section 425.16. The trial court granted the motion and awarded respondent $4,175 in attorney fees and costs, which was far less than she requested.
This court consolidated appellant's appeals from the decision on the motion to strike and the award of attorney's fees.
DISCUSSION
I. The Trial Court Did Not Err in Granting the Anti-SLAPP Motion
A. The Anti-SLAPP Law
"In 1992, the Legislature enacted [S]ection 425.16 in an effort to curtail lawsuits brought primarily 'to chill the valid exercise of . . . freedom of speech and petition for redress of grievances' and 'to encourage continued participation in matters of public significance.' (§ 425.16, subd. (a).) The section authorizes a special motion to strike '[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 . . . .' (§ 425.16, subd. (b)(1).) The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.] The statute directs the trial court to grant the 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).)" (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395-1396, fn. omitted (Gallimore).)
"The statutory language establishes a two-part test. First, it must be determined whether the plaintiff's cause of action arose from acts by the defendant in furtherance of the defendant's right of petition or free speech in connection with a public issue. [Citation.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in [S]ection 425.16, subdivision (e).' [Citation.] Assuming this threshold condition is satisfied, it must then be determined that the plaintiff has established a reasonable probability of success on his or her claims at trial." (Gallimore, supra, 102 Cal.App.4th at p. 1396.) "Whether [S]ection 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review independently on appeal." (Ibid.)
B. Appellant Failed to Show a Probability of Prevailing
Appellant does not dispute his lawsuit arises out of petitioning activity for purposes of the anti-SLAPP statute. (See Jarrow Formulas, supra, 31 Cal.4th at pp. 734-735.) Accordingly, appellant bore the burden of demonstrating " ' "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." ' " (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).) "We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law." (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.) To establish a cause of action for malicious prosecution, "[t]he underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775 (Parrish).)
At the outset, we note there is no dispute that the Malpractice Action was terminated in appellant's favor; the jury's verdict in his favor is a sufficient prima facie showing as to that element. On the other hand, we reject appellant's contention he was not required to show respondent initiated or maintained the Malpractice Action with malice because respondent's anti-SLAPP motion argued only that there was probable cause for the action, not that it was brought or maintained without malice. Appellant asserts, "Where, as here, the defendant, in making an anti-SLAPP motion, does not deny that an element . . . of the [p]laintiff's claim exist[s], that element . . . [is] deemed to be uncontroverted." For that proposition, he cites only a passage in Flatley v. Mauro (2006) 39 Cal.4th 299, 328, in which the court observed that the defendant did not "in the proceedings below . . . deny that he sent the letter nor did he contest the version of the telephone calls set forth in [two] declarations in opposition to the motion to strike. We may therefore view this evidence as uncontroverted." Flatley is inapposite. First, the court in that case was not considering whether the plaintiff had shown a probability of prevailing; instead, the court held the alleged conduct was "extortion as a matter of law and, therefore, not constitutionally protected activity for purposes of section 425.16." (Id. at p. 333.) Second, recognizing that certain underlying facts are undisputed in a case is not equivalent to deeming an element of a cause of action uncontroverted for purposes of the second step in the Section 425.16 analysis.
Appellant cites no authority that respondent had any burden with respect to the second step: Although it may be tactically wise for a defendant moving to dismiss under Section 425.16 to explain why it thinks the plaintiff cannot prevail, the statute actually only requires the movant to show the plaintiff's claim arises from protected activity. The burden of showing a probability of prevailing is entirely on the plaintiff, and satisfying that burden requires " ' "a sufficient prima facie showing of facts to sustain a favorable judgment." ' " (Navellier, supra, 29 Cal.4th at pp. 88-89; see also Parrish, supra, 3 Cal.5th at p. 774 [" 'the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success' "]; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson) ["a plaintiff responding to an anti-SLAPP motion must " 'state[] and substantiate[] a legally sufficient claim' "]; Medley Capital Corp. v. Security National Guaranty, Inc. (Oct. 17, 2017, A147726) ___ Cal.App.5th ___ [6] [" 'plaintiff's burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment' "]; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614 ["In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence."]; but see Animal Legal Defense Fund v. LT Napa Partners LLC (2015) 234 Cal.App.4th 1270, 1277 ["a defendant that advances an affirmative defense to the plaintiff's claims bears the burden of proof on the defense"].) Accordingly, appellant was required to present evidence constituting a prima facie showing of malice in order to establish a probability of prevailing on his malicious prosecution claim.
Bently Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, is distinguishable. There, the defendant and anti-SLAPP movant argued for the first time on appeal that because the defamation plaintiffs were public figures they needed to show the defendant acted with malice in order to show a probability of prevailing on their claim. (Id. at p. 436.) The court of appeal concluded the argument was untimely, observing (among other things) that "[t]he record before us in this appeal does not begin to contain the evidence necessary to conclude plaintiffs' presence on Yelp rendered them public figures." (Ibid.) Thus, in Bently, the anti-SLAPP movant's failure to timely present his public figures argument left the record undeveloped and unclear whether malice was a required element of the defamation claim. In the present case, there is no dispute the malice element was part of the prima facie showing appellant had to make to establish a probability of prevailing.
1. There Was Probable Cause for the Malpractice Action Overall
" '[T]he probable cause element calls on the trial court to make an objective determination of the "reasonableness" of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable,' . . . . A claim is unsupported by probable cause only if ' " 'any reasonable attorney would agree [that it is] totally and completely without merit.' " ' [Citations.] 'This rather lenient standard for bringing a civil action reflects "the important public policy of avoiding the chilling of novel or debatable legal claims." ' [Citation.] The standard safeguards the right of both attorneys and their clients ' " 'to present issues that are arguably correct, even if it is extremely unlikely that they will win.' " ' " (Parrish, supra, 3 Cal.5th at p. 776.)
With respect to the cause of action for professional malpractice, the Malpractice Complaint incorporated all the general allegations and summarized the claim as follows: "The acts of malpractice which directly caused injury to [Block and LEP] include [appellant's] negligent failure to prevent appointment of a receiver for LEP without proper evidence of the need for such a drastic remedy, which directly caused injury to LEP's business plus $192,024.12 in receiver fees and $145,142 in the receiver's attorney's fees; [appellant's] failure to protect his clients from the loss of their ability to collect the $370,348 judgment, directly caused by [appellant's] lack of skill and knowledge in failing to promptly record the judgment with the recorder in Maui or to file the judgment for enforcement as a sister-state judgment, after he substituted in as attorney for both Block and LEP; the loss of any recovery of attorney's fees directly caused not only by [appellant's] negligence but also because of [appellant's] reprehensible conduct during the litigation which increased the attorneys fees; the loss of most of the costs incurred in the underlying case due to [appellant's] incompetence and failure to maintain or provide proper records to the court; the over-litigation of the stock-ownership issue by [appellant] in order to charge excessive legal fees, while the receiver's attorneys litigated the money damages; [appellant's] unconscionable fees, far out of proportion to any recovery and demanded with constant threats without justification or support in time records or skill."
On appeal, appellant breaks down the allegations in the Malpractice Action into the smallest arguably discrete units and then separately analyzes the existence of probable cause as to each. For example, he argues that Block could not individually sue for appellant's failure to register the judgment in the Valentine Action because that judgment was in favor of LEP. Appellant argues his claim for malicious prosecution can be based on any allegation in the previous complaint that was lacking in probable cause. (See Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 ["A claim for malicious prosecution need not be addressed to an entire lawsuit; it may, as in this case, be based upon only some of the causes of action alleged in the underlying lawsuit."]; see also Crowley v. Katleman (1994) 8 Cal.4th 666, 693-695; Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459-460 (Lanz).)
We need not decide whether the case law obligates this court to treat every separate allegation in the complaint as an independent theory of malpractice that can support a malicious prosecution claim. As we first explain, the overall claim for malpractice was plainly tenable, as demonstrated by denial of the motion for summary judgment in the Malpractice Action and other evidence presented by respondent. Next, we explain that appellant has not made a prima facie showing that any particular allegation lacking in probable cause was included or maintained maliciously, given the overall tenability of the Malpractice Action. (See Part I.B.2, post.)
a. The Interim Adverse Judgment Rule
Respondent contends the "interim adverse judgment rule" mandates a conclusion there was probable cause for the Malpractice Action. Under that rule, "a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court." (Parrish, supra, 3 Cal.5th at p. 776.) The rule "reflects a recognition that '[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by a trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.' [Citation.] That is to say, if a claim succeeds at a hearing on the merits, then, unless that success has been procured by certain improper means, the claim cannot be 'totally and completely without merit.' [Citation.] Although the rule arose from cases that had been resolved after trial, the rule has also been applied to the 'denial of defense summary judgment motions, directed verdict motions, and similar efforts at pretrial termination of the underlying case.' " (Id. at pp. 776-777.) Nevertheless, "Denial of a summary judgment motion on procedural or technical grounds, rather than for existence of triable issues of material fact, says nothing regarding the potential merit of the action and hence does not establish probable cause for its initiation." (Wilson, supra, 28 Cal.4th at p. 823.)
In the present case, appellant filed an unsuccessful motion for summary judgment in the Malpractice Action. Respondent contends denial of that motion was an interim adverse ruling that showed there was probable cause for the action. The trial court below rejected that contention, concluding the 2013 denial of the motion was not " 'on the merits.' " The trial court was mostly correct. The 2013 decision concluded appellant failed to meet his burden of showing there were no triable issues of material fact, but as to most claims it was not based on an examination of the plaintiffs' evidence. The court noted that appellant did not seek partial summary adjudication, and, therefore, the court made no attempt to consider all of the discrete claims in the Malpractice Complaint. Instead, the court stated appellant had failed to address the elements of the breach of contract and breach of fiduciary duty claims, had failed to address the allegations related to those claims, and had provided "a simplistic and incomplete summary" of the plaintiffs' allegations. Denial of the summary judgment motion on those grounds did not show that the plaintiffs' claims were "legally sufficient and [could] be substantiated by competent evidence." (Wilson, supra, 28 Cal.4th at p. 821.)
On the other hand, the trial court did decide on the merits that plaintiffs' claim based on appointment of a receiver was tenable, citing the declaration of plaintiff Block and pointing out that "plaintiffs' claims go beyond merely the failure to prevent appointment of the receiver (or the failure to competently oppose the motion for appointment of a receiver . . .) but also includes conduct by defendant after the receiver was appointed which purportedly exacerbated the plaintiffs' damages." Further, the trial court denied the motion for summary judgment on the merits as to the "central issue" of appellant's "overlitigation of the stock ownership issue," concluding it was a triable issue whether the amount of the fees sought was justified by the complexity and adversarial nature of the matter.
Appellant's claim that Block's declaration contained falsehoods does not demonstrate that the 2013 decision was "obtained by means of fraud or perjury." (Parrish, supra, 3 Cal.5th at p. 776.) First, appellant cites no conclusive evidence the declaration was false in relevant respects. Second, respondent could have reasonably relied upon the information she obtained from Block, even if some of the information turned out to be false.
In sum, although the interim adverse judgment rule does not preclude appellant's entire malicious prosecution claim, the denial of appellant's previous summary judgment motion does show the Malpractice Action was tenable to the extent it was based on plaintiffs's allegations relating to appointment of the receiver and the excessiveness of the attorney fees in the Valentine Action.
b. The Other Malpractice Allegations
The trial court fairly summarized the Malpractice Complaint as describing five chief allegations of malpractice. In the words of the court: "(1) failure to perfect a Sonoma County judgment in Hawaii; (2) failure to prevent appointment of a receiver; (3) failure to recover attorney's fees and costs; (4) churning fees; and (5) misrepresenting that Valentine's appeal prevented attachment of a property."
Regarding the claim of failure to perfect the Valentine judgment, the Malpractice Complaint alleged that "[Appellant] knew at all times that Valentine's only asset which could satisfy any judgment was the real property Valentine owned in Maui, Hawaii . . . [But appellant] simply ignored the customary and usual means of enforcing a sister-state judgment . . . ." Consequently, "[u]nbeknownst to plaintiffs, on May 1, 2008 Valentine closed the sale of her Hawaiian property for $1 million, the property transferring without notice of the judgment against Valentine or any lien against the property." In arguing a malpractice claim based on those allegations lacked probable cause, appellant denies he agreed to enforce the judgment and, in any event, "the judgment was uncollectable because Valentine's Hawaii property had prior recorded liens exceeding the value of the property." However, the Block declaration submitted in opposition to the summary judgment motion in the Malpractice Action explained in detail why Block believed appellant was handling the enforcement efforts. Moreover, the declaration explained that Valentine's property sold for $1 million, and respondent cites to evidence that most of the liens on the property had been released before the May 2008 sale. Appellant's reply brief on appeal denies that respondent's evidence shows Valentine had equity in the Hawaii property, but appellant fails to explain why that is so. Thus, there was probable cause for the Malpractice Action based on the allegations relating to the failure to perfect the Valentine judgment.
Appellant points to a declaration from counsel for LEP's receiver stating that she gave Block a referral to a Hawaii attorney and that she discussed the referral with appellant, who said "he had informed Mr. Block that he would not represent him in a collection action in Hawaii." The declaration reveals a conflict in the evidence, but not lack of probable cause.
Regarding the appointment of a receiver, as explained previously, the trial court in the Malpractice Action denied appellant's summary judgment motion on the merits with respect to those allegations, based on evidence relating to conduct by appellant after appointment of the receiver that resulted in additional receiver-related damages. We also note that the Block declaration in opposition to appellant's motion for summary judgment averred that appellant disregarded Block's pleas that appellant argue LEP could not afford a receiver and that a more qualified receiver be appointed. For example, Block averred, "[a]gainst my wishes, [appellant] presented LEP as a thriving business, did not suggest any alternative to a receiver" and did not propose an alternate receiver. Appellant's briefs on appeal argue he could not have prevented appointment of a receiver given the conflict between Block and Valentine, but he does not otherwise show the receiver-related allegations of malpractice were lacking in probable cause, even though they were ultimately rejected by the jury.
As to appellant's failure to recover attorney's fees, the Malpractice Complaint alleged the trial court "denied Block's request for attorneys fees because (a) [appellant] moved for his $700,000 fees under Code of Civil Procedure [section] 128.7 but failed to comply with the statutory requirements . . . ; and (b) [appellant] engaged in tactics which 'exacerbated the controversy, lengthened its duration and generated extraordinary attorneys fees which can never be recovered from an adversary,' the court noting that Block had suffered court-ordered sanctions at least twice because of [appellant]; and that [appellant's] conduct as Block's lawyer was 'reprehensible.' " Section 128.7 is a procedure for obtaining sanctions against an attorney for presenting frivolous or otherwise improper filings. Appellant points out that one of the trial court's grounds for denying the motion was that Valentine's arguments were not so frivolous or in bad faith as to justify an award of fees under section 128.7. Although the trial court stated as another ground for denying the fee award that appellant failed to comply with the required statutory procedures for such a fee request, we do agree respondent lacked probable cause for the Malpractice Action to the extent it was based on this particular allegation.
As to appellant's failure to recover costs, the Malpractice Complaint alleged "the loss of most of the costs incurred in the underlying case due to [appellant's] incompetence and failure to provide proper records to the court." On appeal, respondent does not cite evidence supporting that allegation, but neither does appellant show a lack of probable cause. Instead, appellant makes the conclusory assertion that the plaintiffs in the Valentine Action "received all the costs ($30,531.94) they were entitled to under statute." The trial court in the Valentine Action substantially taxed the plaintiffs' costs request. Appellant makes no affirmative showing that was not due to his poor record keeping or other negligence on his part.
As to the "fee churning" issue, the Malpractice Complaint alleged appellant "over-litigat[ed] the stock ownership issue in order to charge excessive legal fees" and sought "unconscionable fees, far out of proportion to any recovery and demanded with constant threats without any justification in time records or skill." The Malpractice Complaint also alleged, "Despite numerous requests, [appellant] has never provided contemporaneous billings or records of his time spent on the case . . . ." As explained previously, the interim adverse judgment rule precludes a malicious prosecution claim based on those allegations. Furthermore, additional support for the excessive fees allegation can be found in the following statement by the trial court judge in the Valentine Action, in the order denying Valentine's and the plaintiffs' fee requests: "the above-entitled action has generated more pre-trial and post-trial civil justice proceedings concerning less money than the Court recalls in over 43 years of trial practice and nine years of trial court judicial service." As the trial court in the Malpractice Action observed, the excessive fees allegations were a "central issue" in the case. Notwithstanding the expert testimony presented by appellant at trial in the Malpractice Action and appellant's ultimate victory, there was plainly probable cause for the malpractice claim based on the fees sought by appellant for his work in the Valentine Action.
Finally, the Malpractice Complaint alleged that appellant breached his fiduciary duty because he "lied to [Block and LEP], misrepresenting that because Valentine had filed a Notice of Appeal, they could not attach the Maui property." Appellant's response is that the only evidence supporting the claim was Block's "self-serving declaration." That does not demonstrate lack of probable cause for the claim.
Appellant contends the plaintiffs in the Malpractice Action alleged appellant committed malpractice by failing to make Valentine post an appeal bond, but appellant fails to cite to any portion of the Malpractice Complaint making such an allegation. Block's declaration opposing appellant's motion for summary judgment in the Malpractice Action appears to make that allegation, but appellant cites no authority a malicious prosecution action may be based on allegations in a declaration that do not appear in the complaint as a basis for a cause of action.
Accordingly, aside from the allegation about appellant's failure to secure an attorney fee award and certain stray allegations that may or may not have been alleged as independent bases for the malpractice cause of action, there clearly was probable cause to support the Malpractice Action overall.
For example, appellant contends that only LEP and not Block had standing to assert certain claims, there was no basis for a claim based on the $450,000 promissory note appellant obtained from Block, there was no basis for a claim based on the absence of a written fee agreement, and there was no basis for a claim based on the disqualification of appellant as counsel for LEP in the Valentine Action. Even if those are properly treated as allegations underlying independent malpractice claims, and even if certain of those claims were lacking in probable cause, appellant has not shown any were brought or maintained maliciously in light of the overall tenability of the action, as explained below (Part I.B.2, post).
2. Appellant Failed to Show Respondent Acted With 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.' [Citation.] '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 Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407 (Sycamore Ridge).)
"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. In other words, the presence of malice must be established by other, additional evidence. . . . [T]hat evidence must include proof of either actual hostility or ill will on the part of the defendant or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant. [Citation.] In other words, in California, the commission of the tort of malicious prosecution requires a showing of an unsuccessful prosecution of a criminal or civil action, which any reasonable attorney would regard as totally and completely without merit [citation], for the intentionally wrongful purpose of injuring another person." (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498-499, fn. omitted; see also Lanz, supra, 243 Cal.App.4th at pp. 466-467 ["As an element of malicious prosecution, malice 'reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement.' "].)
As explained previously, although appellant may be able to make a prima facie showing there was no probable cause to base the malpractice claim on certain isolated allegations in the Malpractice Complaint, the action was plainly tenable overall. On appeal, appellant primarily relies on his contention that respondent conceded that appellant could show malice by not expressly contesting the malice issue in her anti-SLAPP motion. We have rejected that contention; appellant had the burden of presenting evidence on all of the elements of his claim in order to show a probability of prevailing.
Appellant's only other argument that respondent acted with malice is his assertion she brought the Malpractice Action "to coerce a shake down reduction in the fees owed" appellant. In support of that assertion he cites a portion of the record collecting e-mail correspondence between himself and an attorney retained by Block named Jay Strauss. In the correspondence, appellant and Strauss debated about and negotiated over the fees appellant was seeking from Block, but appellant points to no portion of the exchange showing malice. In any event, there is no indication respondent was involved in the exchange and, more fundamentally, a motivation to avoid paying appellant's requested fees would not have been improper, because the excessiveness of appellant's fee was one of the central bases for the Malpractice Action. (See Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407 [referring to proceedings " ' " 'initiated for the purpose of forcing a settlement which has no relation to the merits of the claim' " ' " (emphasis added)]; Downey Venture, supra, 66 Cal.App.4th at p. 494 ["The plaintiff must plead and prove actual ill will or some improper ulterior motive."].)
In light of the overall tenability of the Malpractice Action and appellant's failure to present any evidence of malice, we conclude appellant has failed to make a prima facie showing that, to the extent the prior Malpractice Action was based on isolated allegations lacking in probable cause, the claim was initiated or maintained with malice.
At oral argument, appellant asserted malice could be inferred from the fact that respondent continued to assert certain claims after he informed her the claims were without merit. Appellant's briefs contain no citations to any such correspondence between appellant and respondent; apparently appellant means to suggest his unsuccessful summary judgment motion in the underlying malpractice action put respondent on notice that certain claims lacked probable cause. However, appellant never argued in his briefs on appeal that malice could be inferred from respondent's failure to dismiss certain claims after prevailing on the summary judgment motion. Instead, he argued only that the e-mail exchange with attorney Strauss showed the malpractice action was a malicious "shake down." Any argument for malice based on respondent's failure to dismiss claims after the summary judgment motion has been forfeited. (People v. Thompson (2010) 49 Cal.4th 79, 110, n. 13 ["Because counsel failed to raise this . . . argument in her briefs, to raise it at oral argument was improper."]; Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6 ["An appellate court is not required to consider any point made for the first time at oral argument, and it will be deemed waived"]; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived."].)
II. Appellant Has Not Shown the Trial Court Erred in Its Fee Award
The trial court awarded respondent $4,145 in attorney fees and costs for prevailing on the anti-SLAPP motion. She had requested $25,846.57. In her declaration supporting the request, respondent averred the request did not include fees for her own legal services, but rather represented the amount she paid to a legal staffing agency for assistance from a contract attorney, as well as $3,286.57 in costs.
Appellant contends the trial court erred in awarding fees to respondent because no attorney other than respondent made an appearance on her behalf in the anti-SLAPP proceedings. However, respondent's declaration makes it clear the contract attorney she retained helped her in preparation of the motion, rather than by making a court appearance. Appellant cites no authority an attorney fees award for such assistance is improper. Neither has appellant shown that the time records were insufficiently detailed to support the fee award or that the trial court otherwise erred in fashioning its quite modest fees and costs award.
Appellant's briefing on appeal is primarily an attack on the $25,846.57 requested by respondent below, rather than an attempt to show the trial court erred in awarding $4,145 in attorney fees and costs. --------
DISPOSITION
The trial court's judgment is affirmed. Costs on appeal are awarded to respondent.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.