Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 434124
McGuiness, P.J.
Arnold Malter appeals from an order granting respondent Joan Malter Osburn’s special motion to strike under California’s anti-SLAPP statute (Code Civ. Proc., § 425.16). He contends the trial court was not authorized to hear the special motion to strike, which was the second such motion filed by Osburn. He also argues the trial court erred in granting the motion, claiming he demonstrated a reasonable probability of prevailing on the merits of his lawsuit. We affirm.
“SLAPP” is an acronym for “strategic lawsuits against public participation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.) In this opinion, we refer to a motion under the anti-SLAPP statute as either an “anti-SLAPP motion” or a “special motion to strike.”
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Factual and Procedural Background
General background
Malter and Osburn are brother and sister. Malter is an attorney licensed to practice in California. Since their mother died in 1999, Malter and Osburn have faced off against each other in three separate lawsuits (of which we are aware). The action giving rise to this appeal is the third lawsuit between the two. In the first lawsuit, which we will refer to as the Napa Action, Malter sued Osburn over Napa County property in which the two held ownership interests. In the second lawsuit, which we will refer to as the Los Angeles Action, Osburn sued Malter in Los Angeles County for elder abuse, professional negligence, rescission, and fraud. In the third lawsuit, which is before us on appeal, Malter sued Osburn for malicious prosecution and abuse of process, claiming that Osburn filed the Los Angeles Action without probable cause and out of anger over Malter’s prevailing in the Napa Action. Our focus is upon the third lawsuit, which we refer to as the San Francisco Action.
Mother’s death and the March 1999 agreement
Malter’s and Osburn’s mother, Harriet (mother), died on March 13, 1999. Mother left a holographic will dated January 23, 1995, with a codicil dated June 24, 1997. She designated Malter and Osburn as co-executors of her estate.
Within one week of mother’s death, on March 19, 1999, Malter and Osburn entered into a written agreement (the March 1999 agreement) regarding the disposition of items found in mother’s apartment. The March 1999 agreement refers to two promissory notes allegedly held by the mother totaling over $330,000 and secured by trust deeds on two properties owned by Malter—the Strand property and the Melrose property. The March 1999 agreement also refers to “[o]ther promissory notes not identified herein wherein [Malter] was [the] Payor.” A notation on the March 1999 agreement reflects that the notes were “paid in full” and were not assets of mother’s estate. Thus, although the existence of the promissory notes suggests Malter had borrowed a total of over $330,000 from his mother, Malter represented that he did not owe his mother any money at the time of her death.
Malter acted as Osburn’s attorney with regard to mother’s estate and advised Osburn to avoid probate. Osburn agreed and the estate was not probated. The promissory notes were not included as part of mother’s estate.
A major point of dispute between Malter and Osburn revolves around the validity and status of the promissory notes and the related deeds of trust on the Strand and Melrose properties. Osburn’s attorney conducted an investigation and concluded the notes had not been repaid and should have been included in mother’s estate. Osburn’s attorney claimed to have probable cause to believe Malter had misled his sister and had committed legal malpractice by acting as her attorney and advising her to avoid probate and exclude the promissory notes from the estate. By contrast, Malter asserted he never owed any money on the promissory notes and that his mother never loaned him any money. Rather, he claimed he gave his mother a security interest in his property so that she would have some means of support in the event he were to die. He also claims his sister, Osburn, was fully aware that his mother did not have any money to lend to him.
The Napa Action
In 1990, Malter and Osburn purchased residential investment property in Napa. Malter hoped to resell the property for a profit after making minor improvements to the property. For a variety of reasons, the property was not resold, and Osburn and her husband made substantial investments in the property over the course of the next decade. In addition, Osburn and her husband began to use the property as a weekend vacation home.
On July 27, 2000, Malter filed suit against Osburn over the Napa property in the Napa Action, alleging causes of action for fraud, breach of contract, conspiracy, conversion, and accounting, among others. Although the parties disagree about the outcome of the Napa Action, the facts and resolution of that action are largely irrelevant to the issues on appeal here.
During the course of the Napa Action, Osburn’s attorney, Barry Willdorf, took Malter’s deposition. As he was preparing for Malter’s deposition, Willdorf learned of the March 1999 agreement between Malter and Osburn regarding their mother’s assets. At his deposition, Malter claimed he had paid back one of the promissory notes “long, long before” his mother’s death. Willdorf also learned while preparing for the deposition that in May 1999 (after his mother died) Malter had signed a declaration under penalty of perjury in connection with an attempt to obtain a writ of execution against his father for delinquent spousal support. In the declaration, Malter stated that his mother owned no real property, and he claimed she had no viable means of supporting herself. In fact, Malter’s mother did own real property at the time of her death, although Malter later claimed it was not “income producing.”
Willdorf undertook further investigation. He spoke to mother’s ex-husband and to the ex-husband’s attorney. He learned they had not been advised mother was dead at the time Malter filed a declaration in support of a writ of execution for unpaid spousal support. He also learned Malter had represented his mother in the divorce from his father and that mother had received valuable real property in the divorce as well as promissory notes from Malter at the time of the divorce. According to mother’s ex-husband, if she had no viable means of supporting herself, as Malter claimed, it was because Malter had failed to pay back the promissory notes and had “gotten his hands” on mother’s real property.
Willdorf hired a private investigator to determine when Malter paid off the promissory notes. What he learned is that neither of the two deeds of trust associated with the promissory notes had ever been reconveyed. He obtained documentation showing the deeds of trust remained of record on the Strand and Melrose properties. Willdorf believed this fact demonstrated the promissory notes had not been repaid. In Willdorf’s opinion, the deeds of trust and associated promissory notes were assets of mother’s estate that should have been disclosed to Osburn. It was Willdorf’s opinion that Malter, while acting as Osburn’s attorney, had improperly avoided the scrutiny of the probate court by failing to declare the deeds of trust and associated promissory notes as assets of the estate.
The Los Angeles Action
Based on the investigation undertaken by Willdorf in the Napa Action, Osburn filed an action against Malter in Los Angeles County on March 7, 2002, alleging (1) elder abuse, (2) professional negligence, (3) rescission, and (4) fraud. The elder abuse cause of action was premised on allegations that Malter had failed to pay amounts owed on the promissory notes and had left his mother without viable means to support herself by the time she died. The professional negligence cause of action was premised on allegations that Malter had served as Osburn’s attorney in connection with the disposition of the mother’s estate and had misled and misadvised her during the course of that representation. The rescission cause of action sought to rescind the March 1999 agreement regarding disposition of assets on the ground Malter had misrepresented the status of the promissory notes. Finally, the fraud cause of action was premised on Malter’s alleged misrepresentation about whether the promissory notes had been paid off. Osburn claimed the value of her distribution from mother’s estate would have been greater but for her brother’s actions.
On September 18, 2002, the trial court granted a motion for judgment on the pleadings as to Osburn’s elder abuse cause of action. The basis for the ruling was that Osburn had no standing to assert an elder abuse cause of action on behalf of her deceased mother because she had not sufficiently pleaded or established that she was acting as her mother’s personal representative. For tactical reasons, Osburn chose not to replead the elder abuse cause of action. Instead, she filed an amended complaint omitting that cause of action.
During the course of discovery, Malter produced documents purporting to show that his mother had reconveyed the deeds of trust on the Strand and Melrose properties, thus cancelling the associated debts. Although mother signed the reconveyances, they were undated. Further, there was no evidence they had been delivered to a trustee. Malter admitted both the Melrose and Strand deeds of trust remained of record as of the date his mother died. He further admitted he had never paid any money to his mother on either note, although he claimed the purpose of the notes and related deeds of trust was to allow his mother to collect something in the event he were to die. Malter asserted the responsibility for recording the reconveyances rested not with him but with his mother or the title company. Osburn’s attorney, Willdorf, was of the opinion that the undated, unrecorded reconveyances were insufficient to establish that Malter no longer owed any money on the promissory notes that were secured by the trust deeds.
A court trial on the causes of action for rescission, professional negligence, and fraud commenced in May 2003. At the conclusion of plaintiff Osburn’s case, Malter moved for judgment under section 631.8, contending the evidence presented by Osburn did not entitle her to relief on any of her causes of action. The court denied the motion. Malter moved for judgment under section 631.8 again at the end of trial. Again, the court denied the motion.
On December 22, 2003, the court issued an oral ruling granting judgment for Malter. In the ruling, the court found that mother’s undated signature on the deeds of trust and the fact she had turned the original deeds of trust over to Malter indicated that the deeds of trust had been reconveyed and that the associated promissory notes had been cancelled. The court did not consider legally significant the fact that the reconveyances were undated and unrecorded. The court found there was an attorney-client relationship between Malter and Osburn. However, because the promissory notes at the center of the dispute had been cancelled, the court reasoned Osburn could have suffered no damages as a result of Malter’s actions, and Osburn therefore could not establish all of the elements of a cause of action for professional negligence. In addition, the court held the one-year statute of limitations for legal malpractice had run before the Los Angeles Action was filed. Judgment in the Los Angeles Action was entered in favor of Malter.
The San Francisco Action
Following the judgment in his favor in the Los Angeles Action, Malter filed a complaint for malicious prosecution and abuse of process against Osburn on April 29, 2004. Malter alleged Osburn had filed the Los Angeles Action without probable cause and out of anger over Malter’s prevailing in the Napa Action. The lawsuit, which we refer to as the San Francisco Action, is the subject of this appeal.
On September 29, 2004, Osburn filed a special motion to strike the complaint under the anti-SLAPP statute (§ 425.16). Osburn set the matter for hearing on November 8, 2004. As support for her motion, Osburn relied exclusively on a declaration signed by Barry Willdorf, who had served as her attorney in both the Napa Action and the Los Angeles Action. Attached to Willdorf’s declaration were 20 exhibits consisting of pleadings and other documents relating to the Napa Action or the Los Angeles Action. Willdorf explained in his declaration that he filed the Los Angeles Action on behalf of Osburn only after conducting an investigation that led him to believe Malter, an attorney, owed his mother substantial sums of money at the time of her death, despite Malter’s apparently inconsistent claims that he had either fully paid off certain promissory notes held by his mother or that he never owed her money on the notes in the first place. Willdorf concluded the notes had not been fully repaid in part because trust deeds securing the notes had never been reconveyed from the mother. Willdorf stated he had reason to believe the notes properly should have been part of the mother’s estate, of which Osburn was a co-executor and named beneficiary. In short, Willdorf claimed he had probable cause to file the Los Angeles Action on behalf of Osburn.
Malter opposed the motion, arguing in part that the motion was procedurally defective because it was noticed for hearing more than 30 days after service of the motion. The trial court heard the special motion to strike on November 8, 2004. The court denied the motion, stating in its written order: “[T]he motion is DENIED under California Code of Civil Procedure, Section 425.16(f) and Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382 as untimely for failure to notice said Motion within 30 days of service.” In Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1390 (Decker), the Court of Appeal held that a special motion to strike under former section 425.16 must be denied if set for a hearing date more than 30 days after service of the motion, unless the moving party established docket conditions requiring a later hearing. (Decker, supra, 105 Cal.App.4th at p. 1390; see former § 415.16, subd. (f), as amended by Stats. 1999, ch. 960, § 1.) Osburn subsequently answered the complaint.
In January 2005, Malter amended his complaint to name Willdorf, Osburn’s attorney in the Los Angeles Action, as a defendant. Malter effected service of the complaint on Willdorf in June 2005.
Willdorf filed a special motion to strike the complaint under the anti-SLAPP statute on July 29, 2005. In support of his motion, Willdorf filed a declaration much like the one he had prepared in support of Osburn’s earlier special motion to strike. He explained that his new declaration incorporated the substance of his earlier declaration and also included additional information that was either not relevant at the time he submitted the prior declaration or that could not be included earlier due to concerns about the attorney-client privilege.
The trial court granted Willdorf’s special motion to strike in an order filed on September 27, 2005. The court explained in its written order that Malter had failed to establish a probability of prevailing on his complaint.
Malter appealed from that ruling in case No. A112954. We dismissed Malter’s appeal as untimely.
Osburn filed a motion for summary judgment or, in the alternative, summary adjudication on January 19, 2006. Osburn set the motion for hearing on March 29, 2006. As support for the motion, Osburn primarily relied upon the declaration and related exhibits Willdorf had submitted in connection with his successful special motion to strike.
On January 23, 2006, four days after filing her summary judgment/adjudication motion, Osburn filed a new special motion to strike under section 425.16, with a hearing date scheduled for February 21, 2006. She characterized her motion as a motion to strike under section 425.16, or in the alternative, a “request for the court on its own motion to reconsider its prior order.”
In the brief accompanying her renewed special motion to strike, Osburn explained that the Legislature had amended subdivision (f) of section 425.16 effective October 5, 2005, specifically to overrule Decker, on which the court had relied in denying her previous motion to strike. (See Stats. 2005, ch. 535, § 3 [expressing intent of Legislature in amending section 425.16 to overrule Decker].) Osburn argued the trial court should exercise its discretion under section 425.16 to entertain her renewed motion in light of Decker being overruled by legislative action. In the alternative, she contended the trial court should exercise its discretion under section 1008, subdivision (c) to reconsider its prior order. Osburn’s moving papers did not mention section 1008, subdivision (b) as a basis for her renewed motion.
As support for her renewed special motion to strike, Osburn submitted the original declaration prepared by Willdorf that had accompanied her first special motion to strike in September 2004. She also asked the court to take judicial notice of the documents supporting her summary judgment/adjudication motion, which included Willdorf’s more recent declaration filed in connection with his successful anti-SLAPP motion. Among other things, Malter argued the motion was untimely under section 1008, subdivision (a), which provides that a motion for reconsideration must be made within 10 days after service of written notice of entry of the order for which reconsideration is sought. In her reply brief, Osburn clarified that her motion sought reconsideration under subdivision (c) and not subdivision (a) of section 1008. She claimed the court retained jurisdiction to reconsider its prior order on its own motion under section 1008, subdivision (c).
Malter filed a rambling declaration in opposition to Osburn’s renewed anti-SLAPP motion. Among other things, he characterized Willdorf’s declaration as a “pack of lies” that “substantially misrepresent[ed]” actual events. He asserted his sister did not rely on the advice of counsel in filing and maintaining the Los Angeles Action. Malter claimed that at times both before and after the Los Angeles Action was filed, Osburn told him she knew that he did not owe any money on the two disputed promissory notes. He also stated that Osburn admitted to him and his wife that she filed the Los Angeles Action for no other reason than to intimidate him, to cause him to incur attorney fees, to try to make his life a living hell, and to prod him to dismiss the Napa Action.
At the hearing on Osburn’s renewed special motion to strike, the court clarified that it “basically denied” Osburn’s original anti-SLAPP motion on procedural grounds. The court observed “there’s certainly new law” in view of the legislative overruling of the Decker case, on which the court had relied in denying Osburn’s first motion. The trial court granted Osburn’s renewed special motion to strike.
Malter filed a timely notice of appeal from the order granting Osburn’s renewed special motion to strike. The trial court subsequently entered judgment in favor of Osburn. The judgment recapitulated the order granting Osburn’s renewed special motion to strike and awarded Osburn $25,565.67 in attorney fees and costs pursuant to section 425.16.
Discussion
1. The trial court was authorized to hear Osburn’s renewed anti-SLAPP motion.
Malter argues that the trial court was not authorized to hear Osburn’s renewed special motion to strike. Osburn disagrees, arguing in her respondent’s brief that the anti-SLAPP statute (§ 425.16) allows a court in its discretion to hear an anti-SLAPP motion at any time. Alternatively, she claims the court had inherent authority under subdivision (c) of section 1008 to reconsider its prior ruling. As explained below, we are not persuaded that section 425.16 and section 1008, subdivision (c), without more, authorize a trial court to hear a party’s motion seeking reconsideration of an earlier order denying a party’s anti-SLAPP motion.
After oral argument, we asked the parties to brief the question of whether the trial court was authorized under section 1008, subdivision (b) (hereafter section 1008(b)) to consider Osburn’s renewed anti-SLAPP motion, despite her failure to cite that subdivision in her moving papers or to file an affidavit containing certain facts specified in that subdivision. Osburn filed a supplemental brief whereas Malter declined our request to brief the issue. We agree with Osburn that the trial court was authorized under section 1008(b) to hear her renewed motion and that any procedural defects in her motion did not deprive the court of jurisdiction to consider the motion.
a. Section 1008 is the sole authority allowing a party to seek reconsideration of an order or to renew a previously denied motion.
A party’s right to seek reconsideration of an interim order or renewal of a previously denied motion is governed by section 1008, which provides in relevant part as follows: “This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (§ 1008, subd. (e), italics added.)
Our Supreme Court considered whether the procedural requirements of section 1008 are jurisdictional in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois). The court distinguished between motions filed by parties and motions on the court’s own initiative. (Id. at p. 1107.) In the case of motions filed by parties, the ability to file repetitive motions is limited by section 1008. (Ibid.) Thus, as this Division stated in Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391, the procedural requisites contained in section 1008 “for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation.” By contrast, because trial courts have the inherent power to reconsider and correct their own interim decisions in order to achieve substantial justice, section 1008 does not limit a court’s ability to reconsider its interim orders on its own motion. (Le Francois, supra, 35 Cal.App.4th at p. 1107; Kerns v. CSE Ins. Group, supra, 106 Cal.App.4th at p. 388.)
In her supplemental brief, Osburn contends that the jurisdictional requirements of section 1008 did not apply to her renewed motion, because her first motion was denied on procedural grounds. In support of this argument, Osburn cites a number of cases standing for the proposition that the jurisdictional limitations of section 1008 do not apply when a party renews a motion originally denied without prejudice. (See Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1014-1015; Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1232; Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 717-718 (Chambreau).) The reasoning of these cases is that “[d]enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial.” (Farber v. Bay View Terrace Homeowners Assn., supra, 141 Cal.App.4th at p. 1015.)
Although Osburn’s original motion was denied on a procedural ground, the denial was with prejudice. There was no suggestion Osburn could renew her motion or cure the procedural defect. The court did not invite reconsideration. Thus, to the extent there is a limited exception to the jurisdictional requirements of section 1008 when a motion is denied without prejudice, that exception is inapplicable here.
In Chambreau, supra, the court stated that a party need not comply with section 1008 when the original motion was not “considered on its merits,” suggesting a party may renew a motion originally denied on procedural grounds without the need to comply with section 1008. (Chambreau, supra, 263 Cal.App.2d at p. 718.) Because the court in Chambreau was considering an initial denial made without prejudice, we do not think its reference to a motion considered on its merits was intended to distinguish between a motion denied on procedural grounds and one denied after a consideration of its substantive merits. Rather, the “merits” in Chambreau plainly refers to any legal, procedural, or factual reason to deny the motion with prejudice. Further, a distinction between procedural and substantive denials is incompatible with our Supreme Court’s recent decision in Le Francois, in which the court declared that section 1008 limits the ability of parties to renew motions or seek reconsideration, without regard to whether a previous motion was denied on procedural grounds. (Le Francois, supra, 35 Cal.4th at p. 1107.)
b. Section 425.16 does not authorize a trial court to consider a renewed special motion to strike unless the moving party complies with section 1008.
The anti-SLAPP statute provides in relevant part that a special motion to strike “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it may deem proper.” (§ 425.16, subd. (f).) Osburn contends section 425.16, subdivision (f) authorized the trial court to hear her renewed special motion to strike because the statute contains a “giant discretionary clause” allowing such motions to be heard well beyond 60 days after the complaint is served.
The cases on which Osburn relies involve belated or delayed anti-SLAPP motions but do not concern renewed motions. (See Du Charme International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 110-112; Lam v. Ngo (2001) 91 Cal.App.4th 832, 840-841.) The plain language of section 425.16, subdivision (f) affords the trial court discretion to entertain anti-SLAPP motions filed more than 60 days after service of the operative complaint. However, contrary to Osburn’s contention, section 425.16 by itself does not allow a trial court to hear a renewedanti-SLAPP motion. Because section 1008 provides the exclusive means for parties that seek reconsideration or renewal of previously denied motions, a party seeking to renew a previously denied anti-SLAPP motion must fulfill the requirements of both section 425.16 and section 1008. (See Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1543.) Unless there is compliance with section 1008, a court lacks jurisdiction to consider a renewed special motion to strike.
c. A party may not avoid the requirements of section 1008 by filing a written motion asking the trial court to reconsider an order on its own motion.
Section 1008 specifies three procedures allowing a court to reconsider its interim orders. Subdivision (a) of section 1008 describes what is commonly referred to as a motion for reconsideration, which must be filed within 10 days after service of a written notice of entry of the order. Subdivision (b) of section 1008 describes what is sometimes referred to as a renewal motion. Unlike a motion for reconsideration, there is no time limit on when a renewal motion may be made. Subdivision (c) of section 1008 provides that a court may on its own motion reconsider a prior order if it determines there has been a change in the law.
Osburn did not premise her renewed motion on either subdivision (a) or (b) of section 1008. Instead, apart from claiming amended section 425.16 by itself authorized the filing of her renewed anti-SLAPP motion, she relied solely on subdivision (c) of section 1008, characterizing her motion as a request for the court to reconsider its earlier denial on its own initiative. We reject the suggestion that Osburn’s written motion asking the court to reconsider its original order allowed her to avoid the jurisdictional requirements of section 1008.
The Supreme Court anticipated Osburn’s argument in its decision in Le Francois. After concluding there is a jurisdictional distinction between motions filed by parties and motions upon the court’s own initiative, the Supreme Court observed there is legitimate concern that parties could avoid the jurisdictional limitations of section 1008 simply by asking the court to reconsider a previous order on its own motion. (Le Francois, supra, 35 Cal.4th at pp. 1107-1108.) The court explained that nothing prevents a party from asking the court at a hearing to reconsider a ruling. “But a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section . . . 1008.” (Id. at p. 1108.) A party cannot be expected to oppose such a motion unless the court expresses an interest in reconsideration. (Ibid.)
The court in Le Francois described what must transpire in order for a reconsideration motion to qualify as one on the court’s own motion, as follows. Unless the requirements of section 1008 are satisfied, “any action to reconsider a prior interim order must formally begin with the court on its own motion. To be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion—something we think will happen rather rarely—it should inform the parties of this concern, solicit briefing, and hold a hearing. [Citations.] Then, and only then, would a party be expected to respond to another party’s suggestion that the court should reconsider a previous ruling. This procedure provides a reasonable balance between the conflicting goals of limiting repetitive litigation and permitting a court to correct its own erroneous interim orders.” (Le Francois, supra, 35 Cal.4th at pp. 1108-1109.)
The procedure outlined in Le Francois was not followed here. At no time did the trial court indicate it might want to reconsider its earlier order on its own motion. Even in the written order granting Osburn’s renewed special motion to strike, the court described the motion as one in which Osburn was the moving party, not as a motion on the court’s own initiative.
Nevertheless, Malter did respond to the motion, and the court did hold a hearing on the matter. On appeal, Osburn contends that although the court did not specifically request briefing, as required by Le Francois, the requirements of that case were effectively met because Malter had an opportunity to oppose the motion and be heard by the court. While Osburn’s argument has some appeal, it appears to tread perilously close to the approach rejected by the Le Francois court, which made clear that a written motion requesting the court to reconsider an earlier order on its own motion has no procedural significance. (Le Francois, supra, 35 Cal.4th at p. 1108.) Such an unauthorized motion is not transformed into a valid means for seeking relief simply because an opposing party chooses to file a response. Under Osburn’s line of reasoning, as long as the opposing party chooses to respond to such an unauthorized motion and the court hears oral argument, the court may reconsider its prior ruling even though it never indicated it was reconsidering the matter on its own initiative. This view is directly at odds with Le Francois, which specifies that any action by a court to reconsider a prior ruling must formally begin with the court on its own motion. (Ibid.)
We are not persuaded that Osburn avoided the jurisdictional requirements of section 1008 by characterizing the order granting her renewed special motion to strike as having been granted on the court’s own motion.
d. The trial court had jurisdiction to consider Osburn’s renewed motion because Osburn satisfied the jurisdictional requirements of section 1008(b).
Although we conclude that neither section 425.16 nor section 1008, subdivision (c) allowed the trial court to hear Osburn’s renewed motion, our analysis does not end there. As we explain, section 1008(b) conferred jurisdiction on the trial court to hear Osburn’s motion.
Section 1008(b) authorizes a court to hear an application for a renewal of a previously denied motion based upon a showing of “new or different facts, circumstances, or law.” The statute provides it shall be “shown by affidavit” “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (§ 1008(b).) It is undisputed that Osburn did not premise her renewed motion upon section 1008(b) or mention that subdivision in her moving papers. It is also undisputed she did not file the required affidavit.
We start with the premise that Osburn satisfied the requirement of establishing new or different law relating to her motion. It is unquestioned that the Legislature amended section 425.16 so as to overrule Decker, which provided the sole basis for the trial court’s order denying Osburn’s original anti-SLAPP motion. As the trial court recognized, but for the law the Legislature later amended, Osburn’s original motion would have led to a different outcome. If Osburn had filed the affidavit required by section 1008(b) at the time she renewed her motion, there is little doubt but that we would have upheld the court’s exercise of discretion to entertain the renewed motion. (See Kunysz v. Sandler, supra, 146 Cal.App.4th at pp. 1542-1543 [decision to entertain renewed anti-SLAPP motion reviewed for abuse of discretion].)
Two questions remain to be answered before we may conclude section 1008(b) authorized the court to entertain Osburn’s motion. First, was it necessary for Osburn to cite section 1008(b) as the basis for her motion? Second, did her failure to file the affidavit required by section 1008(b) deprive the court of jurisdiction to consider the renewed motion?
“The nature of a motion is determined by the nature of the relief sought, not by the label attached to it.” (City and County of S.F. v. Muller (1960) 177 Cal.App.2d 600, 603.) Applying this principle, in Graham v. Hansen (1982) 128 Cal.App.3d 965, 970, the court treated a renewed motion for summary judgment that was improperly identified as a motion for reconsideration under section 1008, subdivision (a) as a renewal motion under section 1008(b). However, in Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544 (Gonzales), the Court of Appeal held that a trial court could not grant summary adjudication to a moving party that had moved solely for summary judgment. The court held: “Only the grounds specified in the notice of motion may be considered by the trial court.” (Id. at p. 1545.) While this holding might suggest a party must specifically mention in its motion the statutory basis upon which relief is sought, Gonzales does not permit such a categorical conclusion. The Gonzales court stressed the importance of giving notice that a party was seeking summary adjudication, and not just summary judgment, because an opposing party might decide to raise only one triable issue of fact to defeat the entire motion, without intending to concede other issues. It would be unfair to grant summary adjudication unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment were denied. (Id. at p. 1546.) In other words, an opposing party unaware that the moving party sought summary adjudication might suffer prejudice as a result of the lack of notice.
Osburn’s motion plainly sought reconsideration of a previous order. The notice of motion specifically identified the previous order the court was asked to reconsider, and it made clear that Osburn sought reconsideration of that order. If the nature of a motion is determined by the nature of the relief sought, Osburn’s motion was properly characterized as one under section 1008(b). Further, unlike the opposing party in Gonzales,Malter suffered no prejudice as a result of Osburn’s failure to refer to the particular subdivision of the statute on which her motion was based. Her moving papers specified the grounds for reconsideration. Presumably, Malter would have presented the same defense regardless of whether Osburn had cited section 1008(b) in her notice of motion. Accordingly, we conclude Osburn’s failure to mention section 1008(b) did not preclude the trial court from treating her motion under that subdivision.
The trial court’s order does not specify the statutory basis on which the court based its decision to hear Osburn’s renewed anti-SLAPP motion. The trial court’s silence as to its authority to hear the motion is not fatal to our analysis. We will affirm a trial court decision even when the record is silent as to the court’s rationale, so long as its decision is correct on any ground. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
With regard to the affidavit required by section 1008(b), the question is whether that requirement is jurisdictional. We conclude it is not. In 1992, the Legislature amended section 1008 to add subdivision (e), which provides that the statute is jurisdictional in nature. (Stats. 1992, ch. 460, § 4, p. 1833.) The legislative findings specify that the intent of the 1992 amendment that added subdivision (e) was “to clarify that no renewal of a previous motion, whether the order deciding the previous motion is interim or final, may be heard unless the motion is based on new or different facts, circumstances, or law.” (Stats. 1992, ch. 460, § 1(c), p. 1831.) Nowhere did the Legislature indicate that the other procedural requirements for the motion, including an affidavit, were intended to be jurisdictional. Rather, the language of the statute suggests that the affidavit requirement is simply the means of conveying the required jurisdictional facts.
In cases construing section 1008 after the 1992 amendments, courts have held that the requirement of “new or different facts, circumstances, or law” is jurisdictional. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; cf. Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 492.) By contrast, we are not aware of any reported decisions in which a California court has held that a trial court lacked jurisdiction to reconsider a prior order because the moving party failed to file the affidavit required by section 1008.
Osburn’s motion contained all of the elements required in an affidavit under section 1008(b). The moving papers mentioned the earlier motion, attached the earlier order denying the motion, explained the basis for the denial, and contained sufficient information to identify the judge who heard and ruled upon the first motion. Further, the moving papers explained the new law and circumstances justifying reconsideration. Osburn’s failure to present this information in an affidavit was a procedural defect but not one that deprived the court of jurisdiction to act. (Cf. Jurado v. Toys “R” Us, Inc. (1993) 12 Cal.App.4th 1615, 1617-1618 [affidavit requirement in section 595.4 relating to motion to postpone trial is not jurisdictional and may be excused by court’s acceptance of oral representations in court].)
Ordinarily, an appellate court will consider any claim of procedural error waived when an objection could have been but was not presented to the trial court. (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.) Malter might argue he had no opportunity to object to the lack of an affidavit because Osburn failed to cite section 1008(b) as support for her motion. While it is true Osburn did not refer specifically to section 1008(b), Malter was plainly aware that Osburn had invoked section 1008 as a basis for her motion. Indeed, he argued that Osburn’s motion was untimely as a “motion for reconsideration” under subdivision (a) of section 1008 because it was not filed within 10 days of notice of entry of the original order. Section 1008, subdivision (a) imposes the same substantive requirements as subdivision (b), including that the showing be made by affidavit. Nevertheless, Malter did not object on the basis that the substantive showing was inadequate or that the showing should have been made by affidavit. Given his understanding that section 1008, subdivision (a) was the applicable statute, Malter had an opportunity to object to the lack of an affidavit but did not do so, precluding our consideration of the issue on appeal.
As previously noted, Malter’s counsel chose not to respond to our request for supplemental briefing on the question of whether the trial court had authority under section 1008(b) to consider Osburn’s renewed anti-SLAPP motion despite her failure to file the affidavit required under that section. We may construe Malter’s failure to brief the matter as a waiver or abandonment of the issue.
Even if Malter had not waived his right to challenge the lack of an affidavit, any procedural error was harmless. (See Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause . . . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice”].) In certain circumstances, the affidavit required by section 1008(b) serves a critical purpose, such as when a moving party must establish to the satisfaction of the court that it could not have presented newly offered facts and legal arguments earlier. (See, e.g., Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1201 [affidavit must explain why new facts or law not presented earlier].) No such consideration arose here. The changes in law and circumstances relied upon by Osburn clearly occurred after the court ruled upon her original anti-SLAPP motion. Osburn’s motion fully detailed the new circumstances and law justifying reconsideration of the court’s earlier ruling. Malter was afforded an opportunity to address the new circumstances and law relied upon by Osburn and can claim no prejudice as a result of Osburn’s failure to submit an affidavit.
Accordingly, we conclude the trial court had authority under section 1008(b) to entertain Osburn’s renewed anti-SLAPP motion.
2. Malter failed to establish a probability of prevailing on his malicious prosecution and abuse of process causes of action.
Malter argues that even if Osburn’s renewed special motion to strike was properly before the trial court, the motion should have been denied as meritless. We disagree and conclude that Malter failed to establish a probability of prevailing on the causes of action in the San Francisco Action.
a. General principles applicable to anti-SLAPP motions.
“A SLAPP suit is ‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights. [Citation.]’ [Citation.] In other words, a lawsuit that is a SLAPP arises from constitutionally protected speech or petitioning activity that ‘lacks even minimal merit.’ [Citation.]” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 670-671.)
SLAPP suits may be disposed of summarily by a special motion to strike under section 425.16, commonly known as an anti-SLAPP motion. The statute provides: “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).)
An anti-SLAPP motion is analyzed 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. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).) 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.]” (Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 671.) In order to meet its burden under the anti-SLAPP statute to establish a reasonable probability of prevailing at trial, a plaintiff “must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. [Citations.]” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519.)
We review de novo the trial court’s order granting a special motion to strike under section 425.16. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
b. The challenged conduct arose from activity protected under the anti-SLAPP statute.
A malicious prosecution complaint meets the first prong of the two-step process. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-736.) “By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.]” (Id. at p. 735, fn. omitted.) Thus, the cause of action arises from petitioning activity protected by the anti-SLAPP statute. Likewise, a cause of action for abuse of process is also properly the subject an anti-SLAPP motion “since it arises from the exercise of the right of petition.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) Because Osburn established the first prong of the anti-SLAPP analysis, the burden was on Malter to demonstrate a reasonable probability he would prevail on the merits at trial.
c. Malter failed to establish a probability of prevailing on his malicious prosecution cause of action.
In order to establish a cause of action for malicious prosecution, a plaintiff must prove that the underlying action (1) terminated in plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.) As explained below, Malter failed to establish all three required elements of a cause of action for malicious prosecution. With regard to Osburn’s elder abuse claim in the Los Angeles Action, the cause of action did not terminate on the merits in Malter’s favor but instead was rejected on standing grounds. As for the remaining causes of action in the Los Angeles Action that proceeded to trial, the fact that Osburn survived a motion for judgment under section 631.8 sufficed to establish probable cause under the “interim adverse judgment rule.”
(1) The elder abuse cause of action was not terminated on the merits.
“ ‘ “The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort [of malicious prosecution]” . . . . [¶] To determine “whether there was a favorable termination,” we look to the judgment as a whole in the prior action . . .” . . . . “It is not essential to maintenance of an action for malicious prosecution that the prior proceeding was favorably terminated following trial on the merits.” . . . Rather, “[i]n order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit.” . . .’ [Citation.]” (Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1590.)
A favorable termination does not occur merely because a party complained against has prevailed in the underlying action. “ ‘ “If the termination does not relate to the merits—reflecting on neither innocence of nor responsibility for the alleged misconduct—the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.” . . . Thus, a “technical or procedural [termination] as distinguished from a substantive termination” is not favorable for purposes of a malicious prosecution claim. . . . Examples include dismissals (1) on statute of limitations grounds . . .; (2) pursuant to a settlement . . .; or (3) on the ground of laches . . . .’ [Citation.]” (Hudis v. Crawford, supra, 125 Cal.App.4th at pp. 1590-1591.)
The trial court granted Malter’s motion for judgment on the pleadings with respect to the elder abuse cause of action on the ground Osburn had failed to establish standing to sue on behalf of her deceased mother. The cause of action was dismissed without prejudice, affording Osburn an opportunity to plead facts that would have established her standing on behalf of her mother or her mother’s estate. Osburn chose not to replead the elder abuse cause of action and omitted it from the operative, amended complaint.
“A ‘lack of standing’ is a jurisdictional defect. [Citations.] ‘[A] dismissal for lack of jurisdiction does not involve the merits and cannot constitute a favorable termination.’ [Citations.]” (Hudis v. Crawford, supra, 125 Cal.App.4th at p. 1592.) In Hudis, the underlying action was dismissed because plaintiffs lacked standing to assert an elder abuse action on behalf of their aunt. The plaintiffs brought the action in their own names and did not purport to sue on behalf of the aunt’s estate or trust. Given such facts, the appellate court concluded there was no favorable termination on the merits for purposes of a malicious prosecution action. (Ibid.)
The situation here is no different. The order dismissing Osburn’s elder abuse cause of action for lack of standing did not involve the merits. The dismissal does not constitute a favorable termination for purposes of establishing liability for malicious prosecution.
(2) Under the interim adverse judgment rule, the denial of Malter’s motion for judgment pursuant to section 631.8 established that Osburn had probable cause to bring the Los Angeles Action.
Malter, who was the defendant in the Los Angeles Action, ultimately succeeded in getting a favorable termination on the merits in that lawsuit on all of the causes of action other than the one for elder abuse, which had been disposed of prior to trial. Osburn, the plaintiff in the Los Angeles Action, contends that probable cause for bringing the lawsuit was established as a matter of law because the trial court in that action denied Malter’s motion for judgment under section 631.8. We agree and conclude Malter has failed to overcome the presumption of the interim adverse judgment rule establishing probable cause.
“It is the law in California that a plaintiff's victory at trial (unless it is obtained by means of fraud or perjury) will act as conclusive proof that there was probable cause for the plaintiff to file the suit, and will thus preclude a cause of action by the defendant for malicious prosecution, even if the victory is reversed by a trial court (such as by entry of a judgment notwithstanding the verdict) or an appellate court. [Citations.] ‘The rationale is that approval by the trier of fact, after a full adversary hearing, sufficiently demonstrates that an action was legally tenable[;] success at trial shows that the suit was not among the least meritorious of meritless suits, those which are totally meritless and thus lack probable cause.’ [Citation.] [¶] This conclusive presumption based on a plaintiff’s victory in the trial court in an underlying action is not limited to a judgment in the plaintiff's favor following a trial in that action. Thus, where an interim determination in the underlying action has the effect of demonstrating that a suit is not totally and completely without merit, it will have the effect of establishing probable cause to bring the suit. [Citation.]” (Bergman v. Drum (2005) 129 Cal.App.4th 11, 21-22, second italics added.)
Therefore, the principle we refer to as the “interim adverse judgment rule” provides that a defendant in a malicious prosecution action conclusively establishes probable cause to bring the underlying action if that party obtained a favorable interim ruling in the underlying action addressing the merits of the controversy, unless the ruling was procured by fraud or perjury. The rule applies—and precludes a subsequent malicious prosecution lawsuit—where a defendant in a malicious prosecution action secured a favorable ruling on a summary judgment motion in the underlying action. (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 384.)
Osburn, the malicious prosecution defendant in the San Francisco Action, prevailed on a motion for judgment under section 631.8 as a plaintiff in the Los Angeles Action. The purpose of section 631.8 is “ ‘to enable the court, when it finds at the completion of plaintiff’s case that the evidence does not justify requiring the defense to produce evidence, to weigh evidence and make findings of fact.’ [Citation.] Under the statute a court acting as trier of fact may enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain its burden of proof. [Citation.] In making the ruling, the trial court assesses witness credibility and resolves conflicts in the evidence. [Citations.]” (People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012.)
We are not aware of any reported case addressing whether denial of a motion for judgment establishes probable cause to bring an action for purposes of a later malicious prosecution action. Nevertheless, we are guided in our analysis by Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824 (Wilson) in which our Supreme Court addressed in dicta whether the denial of a nonsuit establishes probable cause. The court reasoned the denial of a nonsuit establishes probable cause, which does not depend upon a showing that claims are meritorious but only that they are arguably tenable, “i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation].” (Id. at p. 824.) The court stated: “Denial of a defense summary judgment motion on the grounds that a triable issue exists, or of a nonsuit, while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of action with evidence that, if believed, would justify a favorable verdict.” (Ibid., italics added.) In other words, the denial of a nonsuit motion after presentation of the plaintiff’s case at trial establishes that the plaintiff had probable cause to bring the action and precludes a subsequent malicious prosecution lawsuit.
In Wilson, the court held that the denial of an anti-SLAPP motion in an underlying action establishes probable cause to bring the action and precludes a later malicious prosecution lawsuit. (Wilson, supra, 28 Cal.4th at p. 820.) Following the decision in Wilson, the Legislature amended section 425.16, subdivision (b)(3) specifically to abrogate that part of the Wilson decision in which the court held that an order denying an anti-SLAPP motion precludes a subsequent malicious prosecution action. (Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as amended Aug. 15, 2005, § 1, p. 4; see Hutton v. Hafif (2007) 150 Cal.App.4th 527, 548.) However, the Legislature did not intend to abrogate that portion of the Wilson analysis providing that an order denying summary judgment in underlying litigation establishes the probable cause element in a subsequent malicious prosecution lawsuit. (Hutton v. Hafif, supra, 50 Cal.App.4th at pp. 549-550.) Consequently, the Wilson court’s analysis relating to denials of summary judgment or nonsuit motions remains persuasive precedent.
A motion for judgment under section 631.8 in a bench trial is the counterpart to a nonsuit under section 581c in a jury trial. The two procedures differ, however, in certain respects. Section 631.8 allows the trier of fact to weigh the evidence and consider the credibility of the witnesses. (See § 631.8, subd. (a); People ex rel. Department of Motor Vehicles v. Cars 4 Causes, supra, 139 Cal.App.4th at p. 1012.) By contrast, a trial court must deny a motion for nonsuit if there is any substantial evidence tending to prove all the controverted facts necessary to establish plaintiff’s case. (Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 541.) The consequence of this distinction is that a motion for judgment is more like a determination on the merits than a nonsuit, because the court may weigh evidence and consider witness credibility when ruling on a section 631.8 motion. Thus, if the denial of a nonsuit establishes probable cause for bringing an action, then the denial of a motion for judgment under section 631.8 likewise establishes probable cause precluding a subsequent malicious prosecution action.
The only exceptions to the interim adverse judgment rule are (1) where the interim ruling was based on a technical or procedural reason instead of an examination of the merits, or (2) where the malicious prosecution defendant secured the ruling in the underlying action through fraud or perjury. (See Wilson, supra, 28 Cal.4th at p. 820 [fraud or perjury], 823 [denial on technical or procedural grounds].) There is nothing to indicate the trial court in the Los Angeles Action denied Malter’s motion for judgment for a technical or procedural reason. As for whether Osburn secured the ruling in the underlying case through fraud or perjury, Malter makes no such claim and has consequently waived the issue on appeal. Indeed, Malter devotes just one paragraph to the interim adverse judgment rule in his lengthy opening brief.
Malter states that Osburn first discussed the interim adverse judgment rule in her trial court reply brief, apparently suggesting the issue was not timely raised. However, Malter does not argue Osburn waived the issue or that he was prejudiced by her delay in raising the argument. Indeed, at oral argument in the trial court, the court specifically asked Malter’s counsel to comment on the interim adverse judgment rule. He responded but did not object that the issue had been waived by Osburn. We are satisfied the issue is properly before us.
For the most part, Malter’s trial court declaration opposing Osburn’s anti-SLAPP motion focused upon the element of malice, i.e., alleging that Osburn had improper motives for filing the Los Angeles Action. Osburn concedes that Malter’s evidence, if credited, would establish the element of malice necessary to sustain a malicious prosecution action. If Osburn had probable cause to bring the Los Angeles Action, however, it is irrelevant that she may have acted with malice in filing that lawsuit.
The only allegation in Malter’s declaration that truly bears upon whether Osburn had probable cause to bring the Los Angeles Action is his conclusory assertion that Osburn “knew” her brother did not owe any money on the two promissory notes. Taken alone, this allegation might suggest Osburn lacked probable cause to bring the action because she knew the facts as pleaded were untrue. However, in light of the operation of the interim adverse judgment rule, the proper inquiry is whether Malter’s allegation shows that Osburn secured the favorable ruling on Malter’s motion for judgment in the Los Angeles Action as a result of fraud or perjury. We conclude Malter’s allegation does not establish fraud or perjury.
First, Malter makes no such claim on appeal. He does not contend that Osburn perjured herself in the Los Angeles Action or that the trial court’s ruling on the motion for judgment resulted from any fraud. Second, the allegation is too vague to demonstrate that Osburn committed perjury in the Los Angeles Action. The critical inquiry is when Osburn claims to have known her brother owed no money on the two promissory notes. It could be that she “knew” her brother owed no money on the promissory notes at the time her mother died but that she was convinced otherwise after learning the results of her attorney’s investigation. In short, a claim that Osburn told Malter at some undefined point in time that she knew Malter owed no money to their mother does not establish that Osburn committed perjury or fraud in the Los Angeles Action.
Finally, a point of clarification is in order. In arriving at our conclusion that Osburn had probable cause to bring the Los Angeles Action, we do not rely upon the declaration of Osburn’s former attorney, Willdorf. Malter correctly observes that Osburn cannot rely upon the state of her attorney’s knowledge to establish probable cause to file the Los Angeles Action, because she failed to file any sort of evidentiary declaration attesting to her own state of knowledge. Although probable cause is assessed under an objective standard (i.e., whether any reasonable lawyer would have thought the claim tenable), this objective standard is applied based on facts subjectively within the defendant’s knowledge. (See Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 632, fn. 14, disapproved on another ground in Zamos v. Stroud (2004) 32 Cal.4th 958, 973 [even though lawyer may act with probable cause, client may lack probable cause to file suit].) Because Osburn did not file a declaration in support of her anti-SLAPP motion or otherwise offer any evidence regarding what she knew at the time she filed the Los Angeles Action, we have no way to assess her subjective state of knowledge.
Further, Osburn cannot fall back on an “advice of counsel” defense. When defending against a malicious prosecution claim, a party may successfully claim reliance on counsel’s advice in maintaining the underlying action, but only if the party consulted the lawyer in good faith, stated all the known facts to the lawyer, was advised by the lawyer that the party had a good cause of action, and acted honestly upon the advice of the lawyer. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556.) Here, Osburn failed to establish the necessary facts for an advice-of-counsel defense. We cannot assume Osburn stated all relevant facts to her attorney before she filed the Los Angeles Action. Indeed, we could just as easily assume she withheld critical facts from her attorney and filed the Los Angeles Action with the knowledge her attorney was misinformed.
Thus, our conclusion that Osburn had probable cause to file and maintain the Los Angeles Action results from the operation of the interim adverse judgment rule, not from any reliance on the declaration of Osburn’s former attorney. We conclude the denial of Malter’s motion for judgment in the Los Angeles Action gives rise to a presumption that Osburn had probable cause to bring that action. Malter failed to overcome that presumption and consequently failed to establish a probability of prevailing on his malicious prosecution cause of action.
d. Malter did not establish a probability of prevailing on his abuse of process cause of action.
In the trial court, Malter made no substantive arguments concerning what admissible evidence supported his abuse of process claim, citing only the allegations of his complaint. This was insufficient to meet his burden. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568 [allegations in unverified complaint insufficient to show probability of prevailing under anti-SLAPP statute].) Furthermore, on appeal Malter makes no affirmative arguments regarding the abuse of process cause of action. The claim is therefore waived.
Even if Malter had not waived the claim, he still could not establish a probability of prevailing on his abuse of process cause of action because the allegations in his complaint are insufficient as a matter of law. “[T]he mere initiation of a lawsuit, even if for an improper purpose, does not support a claim for abuse of process. [Citation.]” (Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at p. 520.) This is true even where a meritless lawsuit is filed merely to gain an improper collateral advantage. (Id. at pp. 520-521.) As a matter of law, Malter failed to establish a probability of prevailing on the claim.
Disposition
The order granting Osburn’s special motion to strike pursuant to section 425.16 is affirmed. Osburn shall recover her costs on appeal.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.