Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS 034922
RICHMAN, J.
Michael Parker sued his former employer RIX Industries, Inc. (RIX) and its counsel, David C. Bohrer, for malicious prosecution after they brought and ultimately dismissed an action against him for violating trade secrets. He claimed it was malicious prosecution to include causes of action under sections 499c and 502 of the Penal Code. Repeating positions from below that relief based on the criminal statutes was legally and factually untenable, Parker appeals following the grant of a special motion to dismiss brought by defendants under the anti-SLAPP statute (Code Civ. Proc., § 425.16), plus a dependent award of costs and fees (id., subd. (c)). We affirm the judgment.
I. BACKGROUND
A. Early Litigation and Injunction
RIX has manufactured compressors for over 130 years. Its primary and most successful products are oxygen compressors, which it has designed and developed for military and commercial markets, for use in hospitals, ambulances, mining operations, and air separation plants. Parker first worked for RIX from 1980 to 1984, as a “Breathing Air Sales Engineer, ” and transitioned at the end of 1984 to a part time consulting role before leaving RIX in mid-1985. He then returned to RIX from late 1987 to August 1998, this time as a “Sales Engineer” with responsibilities for marketing and sales. At the start of his return period, he signed an “Employee Invention and Secrecy Agreement” (secrecy agreement) that required him to keep RIX trade secrets, and other proprietary information not “public knowledge, ” confidential during and after his employment. His employment and work with customers gave him access to RIX’s trade secrets.
Concern about misuse of its trade secrets by Parker before and after his August 1998 departure led RIX to file suit against Parker in Solano County Superior Court in January 1999 (RIX Enterprises, Inc. v. Parker (Solano County Super. Ct. No. L12040) [the original state action]). An 11-count complaint alleged breach of the secrecy agreement, breach of fiduciary duty, fraud, misappropriation and conversion of trade secrets, interference with contract and prospective business advantage, unfair competition, civil conspiracy and sought injunctive relief and damages.
Bert Otterson, president and chief executive officer of RIX from 1985 through the proceedings at issue on this appeal, submitted a lengthy declaration about the 1999 lawsuit. While probable cause for that lawsuit is not at issue here, it gives context to a telephone call from 1999 on which Parker relies to show malice in the 2008 action. That declaration testified to the following:
Otterson discovered that Parker had made unauthorized use and disclosure of RIX trade secrets during and after his employment at RIX. Parker had entered a partnership with Jim Johnson in 1995 to start a competing business called AirTech, Inc. (AirTech), and Johnson ultimately revealed that they had intended to manufacture competing oxygen compressors, and that Parker had hired two mechanical engineers (one a former RIX employee) to design the products. In late 1996, Parker obtained drawings of a RIX model 2V3 compressor from a RIX sales employee and, by October 1997, had apparently duplicated the model. This was discovered in interviews for a CAD (computer aided design) operator, when one candidate offered drawing samples that the RIX interviewer recognized as “the exact parts and specifications” as the 2V3. Parker also reportedly planned to enter the home medical oxygen booster compressor business, this after having discouraged RIX from entering that market by saying he believed they would never get FDA (Food and Drug Administration) approval. Johnson revealed that, in the summer of 1998, Parker entered a relationship with Hemant Didwania of Indian Compressors, Ltd (ICL), and traveled to India, once staying three months at Didwania’s house to duplicate RIX compressors. Parker had also contacted the managing director of an English compressor company and asked if the firm would be interested in “purchasing a ‘copy of RIX compressors.’ ” The director later reported to Otterson that he had declined. Several other RIX employees also told Otterson that Parker had obtained lists from them of all units sold of various RIX compressor models, lists of costs and materials for two models (ostensibly for cost analysis, when this was not part of Parker’s job), and complete lists of customers (also unneeded for his job), including a list four months before he left.
The RIX files, drawings, and lists would have been provided as electronic computer data. When Parker returned his computer upon resigning, RIX found that he had erased its hard drive completely, something no employee had ever done before—and which had no legitimate business purpose. Then, after filing suit in January 1999, RIX learned of continued wrongdoing when the president of RIX’s most important oxygen compressor customer told Otterson that Parker offered to sell him oxygen compressor models.
On June 29, 1999, Parker sent Otterson a letter in which he accused Otterson of using the lawsuit “as a weapon” against him, said he had “nothing” in assets, and said the lawsuit would gain nothing and not prevent competition; he also denied that he was using proprietary information from RIX, or that he had approached customers with a business proposal that did, or that he intended to do so. Parker invited Otterson to speak with him, while he was still without counsel, about settling. In response, Otterson spoke with him by phone on July 29, 1999, telling him, according to Parker, “in no uncertain terms that on behalf of RIX, ‘We are going to crush you and use all means at our disposal to bury you; we will never settle.’ His rage and vehemence was so strong I never forgot that phone conversation.”
Parker eventually retained Attorney Gerard Launay (currently his counsel on this appeal), who evidently filed a Chapter 7 petition in bankruptcy for him in federal court on August 25, 2000. RIX then filed its claims in that court, against dischargeability, again seeking damages and injunctive relief. The bankruptcy court granted Parker summary judgment on October 2, 2001. On the damages claims, the court found “no triable issue of fact respecting damages.” On injunctive relief, the court found itself without jurisdiction and dismissed those claims without prejudice to seeking relief in another court. The judgment specified that it did not determine “any issue for any cause of action... that arises or accrues after the date [Parker] filed his bankruptcy petition in this case.”
And so the litigation shifted back to the state court action, where a July 2002 trial before the Hon. William Harrison yielded a judgment of March 24, 2003. Judge Harrison wrote that, while RIX sought damages and injunctive relief, “Monetary damages for past conduct were not sought at trial based on the judgment of the U.S. Bankruptcy Court.” The judge did, however, find good cause to permanently enjoin Parker “from designing, having designed, manufacturing, having manufactured, selling[, ] offering for sale[, ] or otherwise using, directly or indirectly, through his company AirTech, through any other person, natural or corporate, including but not limited to [ICL] and Hemant Didwania, any product containing or incorporating RIX Trade Secrets as described below and as described at trial and as set forth in Exhibit A hereto.”
We observe that defendant Bohrer, from the later state action, was apparently not involved in the initial state court action, or the bankruptcy action.
B. 2007 Correspondence and the 2008 Action
The March 2003 injunction remained the end of the matter, with Parker granted a full discharge of the subject debts in the bankruptcy court, until Launay wrote Otterson a letter of November 29, 2007. Captioned “Re: High Pressure Oxygen Compressor, ” the body of the letter read in full: “As you may know, from the dispute between RIX and Michael Parker, I represented Mr. Parker in the Solano Superior Court relating to RIX trade secrets. We have always respected the Court’s decision and in no way is Mr. Parker intending to violate it. [¶] Mr. Parker is considering an offer to participate in the initiation of manufacture of industrial compressors overseas. [¶] I give you this information merely as a courtesy.”
A response letter of December 13, 2007, was written by Bohrer, who was then a partner in Morgan, Lewis & Bockius (Morgan Lewis), counsel for RIX. Captioned “Re: Michael Parker’s Continuing Obligations to [RIX], ” and faxed to an emergency number due to a temporary closure of Launay’s office, it read in part: “Dear Mr. Launay: [¶]... Your letter states that it is providing RIX with notice that Mr. Parker is “considering an offer to participate in the initiation of manufacture of industrial compressors overseas.’ The scope of this ‘offer’ potentially encompasses RIX’s trade secrets, confidential and/or proprietary information, including without limitation the information set forth in the [permanent injunction] issued against Mr. Parker and the [secrecy agreement] he signed during his employment with RIX. Copies of both... are attached. [¶] In light of Mr. Parker’s previous conduct and his continuing legal obligations, our client naturally is very concerned about Mr. Parker’s intentions, particularly given your letter’s vagueness in that regard. So that we can better understand Mr. Parker’s intentions, please provide us with answers to the following questions by December 19....”
Bohrer’s letter went on to ask, in essence, from whom the offer came, whether Parker informed anyone there of the existence and content of the injunction, when the referenced manufacture of industrial compressors was scheduled to begin, what role Parker would perform, and whether there were any written communications between Parker and the prospective employer relating to RIX trade secrets. The letter also requested written confirmation that Parker “(1) has refrained, and will continue to refrain, from designing, manufacturing, selling, offering for sale or using any product incorporating RIX’s trade secrets [as defined in the injunction], (2) has complied fully, and will continue to comply fully, with his continuing obligations to RIX under [the secrecy agreement], and (3) has not disclosed or used, and will not disclose or use in the future, in any manner any of RIX’s trade secrets, and proprietary and confidential business and technical information.” Stressing Parker’s continuing obligations and RIX’s need to take all steps necessary to protect and preserve its information, Bohrer concluded: “As you know, RIX is serious about protecting its trade secrets, and will not hesitate to take legal action to protect and defend its [rights], including asking Judge Harrison for all available remedies if it believes Mr. Parker has not or intends not to comply [with his obligations].”
A letter of December 17, 2007, from Launay to Bohrer, responded in six enumerated “items” that: (1) said Parker was “aware of” the secrecy agreement and injunction; (2) accused RIX of refusing to specifically describe its trade secrets in the litigation, “possibly because the processes and information are no longer secret”; (3) stated that Parker had “a strategy to conclusively establish what information surrounding the marketing and design of compressors is in the public domain”; (4) cited, as an “example, ” that “any patents in the field of oxygen compressors originally owned by” RIX had expired and were public knowledge; (5) stated that nothing in the injunction required Parker to “answer the questions propounded” in Bohrer’s letter; and (6) stated that nothing in the injunction or secrecy agreement prohibited Parker from competing against RIX and that, even if language in the agreement did, “it would be against public policy, and voidable.”
In a letter to Launay of December 26, Bohrer replied: “Your December 17 letter is even more troubling than your initial letter... to Bert Otterson. Not only do you refuse to provide answers and other information requested in my December 13 letter, which sought to clarify Mr. Parker’s vague ‘offer to participate in the initiation of manufacture of industrial compressors overseas, ’ but you construe Mr. Parker’s legal and contractual obligations far too narrowly. Bohrer disputed, by number, Launay’s “items, ” adding: “In light of the above, we request that you reconsider your refusal to answer the questions and provide the confirmations as requested.... We will grant you... until the close of business on December 28, 2007, to provide full and complete responses. If you fail to do so, please be advised that RIX will take all appropriate and necessary steps to protect and defend its trade secrets, and other proprietary and confidential information.”
Launay wrote back the same day: “I don‘t agree with your understanding of what happened at the Solano Court trial. I was there and you were not. Without Rix actually defining its trade secrets before the tribunal, the Court merely adopted the vague language proposed by Rix’s counsel in its form of order, to the extent that Rix actually had trade secrets. The Court never made a statement that matters in the public domain are Rix trade secrets. That would not only be absurd but inconsistent with the agreement that Parker signed.”
On January 4, 2008, Bohrer filed, on RIX’s behalf, a request for an order to show cause (OSC) re contempt in the Solano County action, plus a new Solano County action (the underlying action or 2008 action). The 2008 action recounted Parker’s employment with RIX, the controversy leading to the injunctive relief of 2003, and the recent correspondence, attaching as exhibits the secrecy agreement, the injunction and letters. The complaint asserted eight causes of action, for: (1) violation of the Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.); (2) breach of contract (secrecy agreement); (3) breach of the covenant of good faith and fair dealing; (4) interference with prospective economic advantage; (5) interference with existing economic relations; (6) theft and misuse of trade secrets (Pen. Code, § 499c); (7) computer abuse (Pen. Code, § 502); and (8) unfair competition (Bus. & Prof. Code, § 17200). The prayer included requests for compensatory and punitive damages, accounting, and injunctive relief.
Also filed by Bohrer for RIX in the 2008 action was an ex parte application for temporary restraining order (TRO) and OSC, and an order for expedited discovery. The matter was heard on January 11, 2008, by the Honorable Paul Beeman. The court, noting the pending contempt request in the former action and that Judge Harrison had recently been assigned to the criminal calendar, inquired mainly whether Judge Harrison’s permanent injunction gave RIX adequate protection, without a new TRO. Bohrer argued that both the TRO and expedited discovery were needed because of the vague new threat of disclosure, Parker’s refusal to divulge what RIX needed to know to assess the danger, and Parker’s dispute about the validity and scope of Judge Harrison’s injunction. Bohrer conceded that Parker had a right to “compete, ” just not with RIX trade secrets, and that RIX did not seek to expand the scope of the injunction, but, he argued, the recent positions by Parker and his counsel created special urgency.
Launay argued for Parker, recounting the earlier action, the bankruptcy summary judgment, and the permanent injunction, and urged that a TRO was not needed. Judge Beeman granted the expedited discovery as “important, ” expanding somewhat the requested notice periods. He denied the TRO, without prejudice, but said he would have granted it if Judge Harrison had not already issued the injunction. The interrogatories and document production RIX proposed, as attached to the order, tracked information RIX had sought through the correspondence.
RIX returned to court in early February to obtain enforcement of the discovery, complaining in part that Parker had given nonsubstantive or inconsistent discovery (based on a position that he had not yet received an actual written offer of employment); had not yet been deposed; and had persisted in privacy objections to allowing his computer data to be copied, despite RIX offers to have a neutral third party make copies, at RIX’s expense, to be held in escrow pending other discovery. There was a prompt hearing, but an enforcement order by Judge Beeman did not issue until May 5, 2008 (due in part, Launay would later declare, to RIX’s delay of two months in submitting a proposed order during ongoing dispute about depositions). The order granted the enforcement relief to RIX and appointed a discovery referee at RIX’s expense.
Meanwhile, at his deposition in April 2008, Parker contradicted what Launay had written in the initial 2007 letter. Parker said that while Launay wrote the letter at his request, he never read it before it was sent, and that Launay gave inaccurate information. Contrary to the letter, Parker said, he had not been considering an offer to participate in the initiation of manufacture of industrial compressors overseas, or in any industry. He had not communicated with anyone, and was just considering sending out résumés for work in the industrial equipment business. Parker testified he remained unaware of the letter, the correspondence it generated, or RIX’s questions, until after RIX filed the lawsuit. Parker said he had never since the 2003 injunction, pursued the AirTech business, the compressor business, or the manufacturing business. He presently intended “never” to get into the industrial compressor industry. To his knowledge, he had always complied with the injunction, and intended to abide by it in the future. While he could not speak to the legal question of what was a trade secret, he did not consider the injunction to be wrong and had never said it was.
On July 21, 2008, on the eve of a case status conference, RIX dismissed its lawsuit “without prejudice.”
C. Malicious Prosecution Action and Anti-SLAPP Motion
Parker evidently initiated his malicious prosecution action against RIX and Bohrer in mid-2009. The original complaint is not in our record, perhaps because Parker filed it in San Mateo County Superior Court. Defendants had the case transferred that December to Solano County Superior Court, where the related prior state actions had been litigated. Meanwhile, defendants had filed an anti-SLAPP motion in the San Mateo action, so the result of the transfer was that the anti-SLAPP motion, as refiled against a first amended complaint (FAC), came before Judge Harrison, who had issued the March 2003 permanent injunction.
The FAC targeted as malicious only the sixth and seventh causes of actionthose predicated on sections 499c and 502 of the Penal Code. It alleged that those causes of action lacked legal or factual support, were terminated favorably to Parker, and were pursued with malice. The FAC cited an absence of case law precedent for using section 499c in a civil case. Factually, for both causes of action, the FAC relied on the decade long history of the trade secrets disputes. It urged that since the summary judgment in bankruptcy court established lack of damages and did not entail findings of wrongdoing, since the bankruptcy discharge covered all liabilities predating the August 2000 filing, and since the injunction ruling did not expressly find wrongdoing, there was no basis, even after the December 2007 exchange of letters, for concluding that Parker had stolen or misused trade secrets or damaged RIX. Parker did not name Otterson as a party defendant, but alleged that he harbored malice and acted for RIX in bringing the ultimately dismissed 2008 lawsuit.
Section 499c, after defining its terms, provides in subdivision (b): “Every person is guilty of theft who, with intent to deprive or withhold the control of a trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use or to the use of another, does any of the following:
The FAC allegations, of course, lay at the core of the anti-SLAPP motion as well. Each side presented documents from the various prior legal proceedings, and deposition testimony and declarations. Defendants did not present any declaration from Bohrer but presented two from Otterson—one previously executed in 2008 in support of the TRO, and a new one highlighting and supplementing that information. It began, “I make this declaration to supplement my declaration in the underlying case, to explain why RIX believed and was concerned that [Parker] was abusing RIX computer data.”
Otterson further declared (paragraph numbering omitted): “Parker was employed by RIX as a Breathing Air Sales Engineer from 1980 to 1984. At the end of 1984, Parker transitioned to a part-time consulting role for RIX until May 31, 1985, at which time he voluntarily left RIX’s employment. In October 1987, RIX rehired Parker as a Sales Engineer. He worked at RIX until he left again in 1998.
The motion came on for hearing on May 26, 2010, with Parker urging most of the same arguments presented now on appeal. Judge Harrison adopted his tentative ruling to grant the anti-SLAPP motion, holding that Parker failed to show probable success on the malicious prosecution elements of probable cause and malice. In a detailed written order filed that same day, the judge held that existing case law precedent for using section 502 as a basis for civil recovery, plus the known facts, made the cause of action one that a reasonable attorney could have felt was legally and factually tenable. The 499c cause of action, he acknowledged, had no direct case law precedent for use in a civil suit, but he found a factual basis for it. Given broad case law statements that criminal statutes may support civil liability, Judge Harrison also found the cause of action to be legally tenable. On the element of malice, he noted that defendants had not produced affirmative evidence to explain why the criminal causes of action were included in the complaint, but reasoned: “In an anti-SLAPP motion, the burden falls on Parker to produce evidence of malice, not on Bohrer and RIX to produce evidence to negate the element of malice. A former employer receiving the letter sent by Parker’s counsel, and then no response to further inquiries by it to determine whether Parker would be using its trade secrets, would appear well justified in filing a lawsuit. It is through the lawsuit that RIX could conduct the discovery necessary to determine whether Parker was intending to [violate], or perhaps already had, violated the terms of the permanent injunction protecting its trade secrets.”
Judge Harrison had also remarked to Parker’s counsel, Launay, at the hearing: “On the issue of... untenable versus tenable, I mean, it’s a question that, you know, you may have some argument [on appeal] one way or the other that could be your way. But as far as malice, I think you have a problem.”
The order deferred action on a request by defendants for costs and fees, and Judge Harrison issued a separate order, on July 23, 2010, awarding defendants $37,620.00.
II. DISCUSSION
A. Legal Standards
Anti-SLAPP.
We have recently observed that analysis of an anti-SLAPP motion is a two-step process asking (1) whether the defendant has made a threshold showing that a challenged cause of action arises from an act in furtherance of the right of petition or free speech in connection with a public issue, and (2) whether the plaintiff has demonstrated a probability of prevailing on the claim. Our review is de novo (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988) and, on review of a grant, may skip over the first step if the second is wanting (id. at pp. 988-989). We do so here since neither party disputes the trial court’s conclusion that defendants met the first step. (See, e.g., Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos).)
“We decide the second step... on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citation.] Looking at those affidavits, ‘[w]e 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.’ [Citation.]” (Grewal v. Jammu, supra, 191 Cal.App.4th at p. 989.) “[T]he anti-SLAPP statute operates like ‘a motion for summary judgment in “reverse.” ’ [Citation.]... ‘[It] establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]’ [Citations.]” (Id. at p. 990.)
Malicious prosecution.
“ ‘ “To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations], (2) was brought without probable cause [citations], and (3) was initiated with malice [citations].” [Citation.]’ [Citation.]” (Zamos, supra, 32 Cal.4th at pp. 965-966, italics omitted.) Despite some literal imports of that traditional phrasing, it is established that malicious prosecution also lies when some but not all causes of action in a lawsuit satisfy the three tests (Crowley v. Katleman (1994) 8 Cal.4th 666, 671), and when a cause of action is brought with probable cause but is then pursued after it is discovered to lack merit. (Zamos, supra, at p. 960.)
The tort remedy of malicious prosecution is “intended to redress two kinds of harm. (1) The individual who is sued ‘is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.’ [Citation.] And (2) ‘The judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals “... as instruments with which to maliciously injure their fellow men.” ’ [Citation.]” (Crowley v. Katleman, supra, at p. 693.) The tort is said to be disfavored both for its chilling effect on an ordinary citizen’s willingness to bring a civil action to court and because it creates “ ‘a new round of litigation itself, ’ ” yet those concerns should not be used to defeat a legitimate cause of action or to invent new limitations unsupported in principle or authority. (Zamos, supra, 32 Cal.4th at p. 966; Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)
Malicious prosecution claims are not exempt from scrutiny under the anti-SLAPP statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732.)
B. Evidentiary Issues
We initially see that Parker complains of hearsay within some documents offered by RIX on the motion below. Anti-SLAPP motions are meant to be decided on the basis of evidence admissible at trial (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497), but we reject Parker’s arguments as inadequately presented both below and on appeal.
Below, Parker stated in one sentence of his opposition, “Except for a one page Declaration of Bert Otterson—much of which lacks foundation or personal knowledge—everything else is hearsay.” He cited no particulars. A page later, Parker faulted defendants’ request for judicial notice of documents from prior litigation as containing hearsay, particularly a 2008 declaration by Otterson in support of the TRO application, in which Otterson set out his reasons for seeking relief. Parker again cited no particulars, but cited general case law that judicial notice may be taken of the existence of documents, but only such facts as appear in documents such as orders, findings of fact, and conclusions of law (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865), and cannot notice the contents of a declaration filed in another action (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1191). Parker then listed five exhibits in the judicial notice request that he judged to contain offending hearsay, but still without setting out any particulars. As to Otterson’s prior declaration, for example, he simply wrote: “Hearsay—and it does not qualify as an admission of a party opponent, ” apparently relying on the fact that he did not name Otterson as a party defendant in the malicious prosecution action. These “objections, ” such as they were, totaled about a page of the opposition, and were not identified by a heading showing they were evidentiary objections. At the hearing on the motion, Parker neither mentioned nor pressed for rulings on the objections and, not surprisingly, Judge Harrison did not issue evidentiary rulings, then or in the resulting written order. In these circumstances, we hold that Parker did not adequately raise evidentiary objections below so as to preserve them for appeal.
Even if he had, however, we would find the issues inadequately raised on appeal. Borrowing by analogy from summary judgment law, it seems appropriate to treat a trial court’s failure to rule on properly raised evidentiary objections as implying that the court overruled them, thus placing the burden on the objecting party to demonstrate on appeal that this constituted error. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) Parker fails to do this. In the initial part of his 66-page opening brief, a footnote repeats a case citation from below, and, he complains in passing of hearsay on two pages. In the argument part of his brief, however, he raises no such issue at all. Not surprisingly, defendants do not respond to such issues in their respondents’ brief. Then, in a page and a half of a 42-page reply brief, Parker finally devotes some briefing to hearsay, albeit under the oblique heading, “RIX’s Brief Is An Untrustworthy Guide to Admissible Evidence on This Appeal.” He complains that defendants rely on a 1999 letter to Otterson from a client who told him that Parker offered to sell the client a copy of a RIX compressor, and on a 2002 trial brief RIX filed before Judge Harrison on the subject of the later-issued permanent injunction. Stressing that he “made a point to state [in written opposition below] that ‘opposing counsel relies overwhelmingly on inadmissible evidence or matters outside the record, ’ ” Parker writes, “We hold to these positions.”
This argument, such as it is, is improperly raised for the first time in a reply brief, without opportunity for a briefing response by defendants (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453); it also improperly tries to incorporate arguments from the briefing below (Balesteri v. Holler (1978) 87 Cal.App.3d 717, 720 721). Thus Parker fails to adequately address his evidentiary complaints on appeal.
His complaints are also overblown. We have relied on the RIX trial brief, for example, to show what was at issue in the prior proceeding, not for the truth of matters stated. As for Otterson’s prior declaration, we do rely on it for the key issues of probable cause and malice. True, it was not reexecuted and resworn by Otterson on the motion below, but the new declaration that Otterson submitted clearly referred to and endorsed the prior declaration, calling the new one a “supplement.”
C. Probability of Prevailing
The parties debate all three elements of malicious prosecution: (1) favorable termination, (2) probable cause, and (3) malice. The grant of the anti-SLAPP motion must be upheld, of course, for lack of any one of those elements.
1. Favorable termination
The trial court did not expressly rule on the favorable termination element, but the parties debate whether defendants’ voluntary dismissal of the underlying action without prejudice defeats that element. We hold that it does not.
“To determine whether a party has received a favorable termination, we consider ‘ “the judgment as a whole in the prior action....” [Citation.]’ [Citation.] Victory following a trial on the merits is not required. Rather, ‘ “the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit.” [Citation.]’ [Citation.]” (Siebel v. Mittlesteadt, supra, 41 Cal.4th at p. 741.) A dismissal on technical grounds does not qualify, but “[a] voluntary dismissal... is not ordinarily considered a dismissal ‘on technical grounds’.... Such a voluntary dismissal, though expressly made ‘without prejudice, ’ is a favorable termination which will support an action for malicious prosecution. [Citations.]” (MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 289.)
There is no indication that this dismissal was done for settlement (Chauncey v. Niems (1986) 182 Cal.App.3d 967, 977), the statute of limitations (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751-752), or to avoid litigation expenses. (Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337, 344-345; Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185). Curiously, while defendants dispute that the dismissal reflected on the merits, they inconsistently argue elsewhere in their briefing that they dismissed the lawsuit once their investigation, and the deposition by Parker, showed that he disputed his attorney’s letter, had not disclosed trade secrets, and had no intention of doing so.
2. Probable cause
“[P]robable cause is determined objectively, i.e., without reference to whether the attorney bringing the prior action believed the case was tenable [citation], and... probable cause exists if ‘any reasonable attorney would have thought the claim tenable.’ [Citation.] This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims.’ [Citation.] Attorneys and litigants... ‘ “have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win....” ’ [Citation.] Only those actions that ‘ “any reasonable attorney would agree [are] totally and completely without merit” ’ may form the basis for a malicious prosecution suit. [Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.)
“A litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortiously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious. [Citation.]” (Wilson v. Parker, Covert & Chidester, supra, at p. 822.) “Indeed, a plaintiff or his or her attorney may not be aware, when initiating the action, of evidence in the defendant’s possession that weighs against the claim.... [P]robable cause to bring an action depends on the facts known to the litigant or attorney at the time the action is brought. [Citation.]” (Ibid., fn. 6.)
Parker’s assault on probable cause for section 499c begins with a 75-year-old statement by our Supreme Court, “No civil right can be predicated upon the violation of a criminal statute.” (Babu v. Petersen (1935) 4 Cal.2d 276, 288.) As he must concede, that observation has been eroded by numerous exceptions over the years, but he observes that there is, to date, no case authority for predicating civil liability on the trade secret protections of section 499c. Offering policy reasons why willy-nilly use of Penal Code provisions in civil suits should be discouraged, he argues that liability under section 499c is legally untenable. As we understand it, his main assault on factual tenability is that any misues or misappropriation of trade secrets (see fn. 1, ante) would have occurred before August 25, 2000, the effective date of his discharge in bankruptcy court.
Defendants take a different view of the facts, and point out that the bankruptcy adjudication did not foreclose suit based on new misuses of RIX trade secrets. They offer no case authority for their use of section 499c, but offer an appendix of 43 published cases they have found that involve civil liability based on criminal statutes. Parker argues that, properly read, those cases all fall into one of four categories: (1) a Penal Code section that itself authorizes civil suit; (2) use of a Penal Code section as expressly authorized by another code; (3) use of a Penal Code section, not for direct liability, but to establish a duty or standard of care, as in negligence or fraud; and (4) a Penal Code violation is that is made an element of another statutory offense, as in business regulation. Parker argues that those categories do not fit for section 499c.
Defendants also invoke, as the trial court did, broad case law language that might suggest to a reasonable attorney that it is generally proper to rely on Penal Code sections in civil suits. The case quoted in the trial court’s order reads: “The general rule is that ‘[f]or every wrong there is a remedy.’ (Civ. Code, § 3523.) In accordance with that principle, ‘[t]he violation of a statute gives to any person within the statute’s protection a right of action to recover damages caused by its violation.’ [Citations.] ‘Where a new right is created by statute, the party aggrieved by its violation is confined to the statutory remedy if one is provided [citation]; otherwise any appropriate common law remedy may be resorted to.’ [Citation.] A private right of action is an appropriate remedy when it is ‘ “needed to assure the effectiveness of the provision....” [Citations.]’... Even when the statute expressly provides for criminal sanctions, damages may be available. [Citations.]” (Faria v. San Jacinto Unified School Dist. (1996) 50 Cal.App.4th 1939, 1947-1948.)
Some of the parties’ general arguments apply as well to section 502, and Parker concedes that this is a Penal Code provision that itself authorizes use in a civil suit. His principal argument, however, is that since such authority is granted to a plaintiff “who suffers damage or loss by reason of a violation” (§ 502, subd. (e)(1)), there had to be evidence (and pleading) of actual damage or loss before defendants could invoke the civil remedy; and they could not rely on the chance that discovery would later reveal such evidence. Noting that the summary judgment in bankruptcy court determined that RIX could not show any damages as of then, and because there has been no evidence of him tampering with RIX computer systems since then, the cause of action was not factually or legally tenable. Defendants urge that they should be able to apply case law that damages are presumed if the alleged acts are shown.
These are interesting but, in our assessment, academic questions. We share the stated view of the trial court at the hearing: that whatever merit Parker’s arguments on the probable cause element may have, the clearly dispositive element against him in this case is malice. We therefore address his probable cause arguments only to the extent that they shed light on the malice question.
3. Malice
“ ‘The malice element of the malicious prosecution tort goes to the defendant’s subjective intent.... It is not limited to actual hostility or ill will toward the plaintiff.’ [Citation.] It can exist, for example, where the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim. A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence. [Citation.] Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence. [Citation.]” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.) 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. (Ibid.)
Citing a nearly half-century–old case that states that pressing a baseless criminal charge is malice as a matter of law (Jackson v. Beckham (1963) 217 Cal.App.2d 264, 272), Parker irresponsibly argues that this is the law. It is not. Our high court has clearly stated: “ ‘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.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728, 743.) In other words, merely bad lawyering—lawyering, we note, not demonstrated by Parker here—is not actionable.
Assuming then, for sake of argument, that one or both of the section 499c and 502 causes of action was either legally or factually untenable, the question is whether the full circumstances show malice as well. Parker factors into this question the entire decade long history of the trade secrets litigation, beginning with his account of Otterson having told him, back in 2000, that RIX would “crush” or “bury” him and “never settle.” In his view, malice should be inferred because RIX, led by Otterson, was stymied in its first efforts to establish liability or damages (in Solano County Superior Court and bankruptcy proceedings), and so seized upon the exchange of letters in late 2007 to vent frustration by bringing essentially the same charges previously resolved against them, adding two baseless criminal allegations under section 499c and 502.
There are several problems with Parker’s view, one being his assumption that no prior court had ever found that he had misappropriated or misused RIX trade secrets. By necessary implication, Judge Harrison found as much in granting a permanent injunction in 2003; otherwise, there would have been no legal basis for the relief. “ ‘A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate....’ [Citation.]... ‘A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.’ [Citation.]” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.)
It is true that the injunction respected the bankruptcy court’s summary judgment that had issued on all claims for damages, but this had been based on RIX’s inability to show it had yet been damaged—not because Parker had not improperly kept or used RIX trade secrets. The injunction language, while not expressly stating that Parker kept and misused trade secrets, implicitly said so. The injunction covered oxygen compressor parts “created by or for Plaintiff RIX or which bear Plaintiff’s logo or the AirTech logo, but which are traceable to RIX Drawings” (drawing defined to include drawings, blue prints, photographs or other representations or copies). “RIX Trade Secrets” included those used for designing spiral compression piston rings, manufacturing with Halocarbon oil, anodizing aluminum parts, cleaning during manufacture, developing RIX Microboost Oxygen Compressors for medical uses. Also included are trade secrets involving safety procedures for “PSA cylinder filling in high-pressure oxygen compression, ” oil-free compression of nitrogen in connection with plastic molding processes, temperature and nitrogen purity controls, RIX processes, terms and conditions of sale, and marketing and other information related to the use of certain RIX oxygen boosters. Further implying misuse by Parker is “Exhibit A, ” which includes 19 items, each identified by RIX drawing number, RIX part description, and a corresponding AirTech drawing number. Thus RIX had prevailed on the question of retention and misuse of its trade secrets, and Parker’s supposition of vengeful retaliation in initiating the 2008 lawsuit is unsupported.
It is also important to place the 2000 phone conversation with Otterson in context. At that point, faced with strong evidence from multiple sources that Parker was misusing RIX trade secrets, Otterson was reacting to an offer by Parker for “settlement” of the then-new, initial lawsuit. Otterson would naturally have felt that settlement was not a viable option for RIX at that point. Any reasonable person faced with existing retention and misuse of its trade secrets by a former employee would find monetary settlement a poor substitute for injunctive relief. The potential for damage to RIX was just unfolding, and Parker had told Otterson that he had no assets in any event. That was a situation very different from what existed in 2008, when the later lawsuit was brought. By then RIX had its permanent injunction and had evidently been satisfied with that protection for years. What changed was the bizarre late 2007 exchange of letters between Attorneys Launay and Bohrer, Launay being evasive and giving every indication that, while Parker had complied and intended to comply with the injunction, Parker and Launay were poised to challenge the scope and propriety of the injunctive relief. Far from suggesting malice, the decision to pursue further relief was, as the trial court observed, eminently reasonable. Lack of prompt action then, months before Parker would ultimately disavow virtually every troubling thing his attorney had written, could have been disastrous for RIX. And while Parker’s briefing tries to paint RIX’s efforts at early discovery as oppressive and malicious, the efforts strike us as essential. Just as bad lawyering alone is not malicious, neither is appropriate and vigilant lawyering.
Finally, while we honor the concept that malice is tested by matters as they appear when the action is first filed, the acts of defendants in voluntarily dismissing the lawsuit soon after Parker repudiated his lawyer’s provocations, further bespeaks lack of ill will.
In summary, we independently agree with the trial court that Parker’s attempt to show a probability of prevailing on the merits was defeated by his inability, in the full circumstances, to raise reasonable inferences of malice on the part of RIX or Bohrer. Parker does not dispute the trial court’s observation that is was his burden to show malice, not defendants’ burden to negate it.
D. Costs and Fees Award
Parker’s attack on the costs and fees award is not based on excessiveness, miscalculation, or other error, but on a need to reverse the award should we reverse the anti-SLAPP ruling. Since we uphold the latter ruling, the fees award stands as well.
III. DISPOSITION
The challenged judgment and postjudgment order are affirmed. Defendants shall recover their costs on appeal.
We concur: KLINE, P.J., LAMBDEN, J.
“(1) Steals, takes, carries away, or uses without authorization, a trade secret.
“(2) Fraudulently appropriates any article representing a trade secret entrusted to him or her.
“(3) Having unlawfully obtained access to the article, without authority makes or causes to be made a copy of any article representing a trade secret.
“(4) Having obtained access to the article through a relationship of trust and confidence, without authority and in breach of the obligations created by that relationship, makes or causes to be made, directly from and in the presence of the article, a copy of any article representing a trade secret.”
Violations bring fines and/or prison or local incarceration. (§ 499c, subd. (c).)
Section 502, after defining various terms, provides in subdivision (c): “Except as provided in subdivision (h) [acts committed within the scope of lawful employment or, if outside such scope, not causing injury over $250], any person who commits any of the following is guilty of a public offense:
“(1) Knowingly accesses and without permission alters, damages, deletes, destroys or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
“(2) Knowingly accesses or without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
“(3) Knowingly and without permission uses or causes to be used computer services.
“(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
“(5) Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
“(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
“(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
“(8) Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
“(9) Knowingly and without permission uses the Internet domain name of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages, and thereby damages or causes damage to a computer, computer system, or computer network.”
Subdivision (d) of section 502 specifies misdemeanor and felony penalties, and fines. Subdivision (e)(1) adds: “In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access....” In a civil action, the court may award attorney fees (Pen. Code, §§ 503, subd. (e)(2)) and, if oppression, fraud or malice is proved by clear and convincing evidence, punitive damages (id., subd. (e)(4)). An action must be “initiated within three years of the date of the act complained of, or the date of the discovery of the damage, whichever is later.” (Id., subd. (e)(5).)
“During Parker’s employment at RIX (before the permanent injunction issued against him in 2003), Parker had access to our priced Bills of Material (‘BOMs’), which reflected the costs of individual parts used to manufacture RIX’s industrial compressors. The BOMs were stored as Excel files on RIX’s computer networks. In 1997 and 1998, ..., I learned that Parker had asked Nadya Cook, another RIX employee, for the BOMs for three of RIX’s products (the 2PS, 2V3, and 4V4 compressors). I also learned that Parker had requested similar information regarding the 2PS and 2V3 from other RIX employees, Robert Pelta (the Information Systems Manager) and DeLoss Hulett (RIX’s Controller). These employees provided the BOMs to Parker. As noted, because these were Excel files, they would have been provided as electronic computer data to Parker.
“During Parker’s employment with RIX, RIX used Computer-Aided Design (‘CAD’) programs to produce its drawings for parts and specifications. Parker had access to the CAD drawings, which were computer generated electronic files, on the RIX computer system.
“Before and during the underlying injunction proceedings, RIX knew that Parker had provided, under the logo of his own company, AirTech, drawings identical to RIX’s to other potential manufacturers, employers, and vendors. We carefully analyzed AirTech’s drawings for their similarities to RIX’s and concluded that they were identical. That led us to believe that Parker had used RIX’s CAD files to copy drawings for his potentially competing company, AirTech, in violation of his employment agreement.”