RAUL WILSON et al., Plaintiffs and Appellants, v. PARKER, COVERT & CHIDESTER et al., Defendants and Respondents. RAUL WILSON et al., Plaintiffs and Appellants, v. MARK WILLIAMS, Defendant and Respondent. RAUL WILSON et al., Plaintiffs and Appellants, v. CARL AXUP et al., Defendants and Respondents.
No. S097444
Supreme Court of California
Aug. 1, 2002.
28 Cal. 4th 811
Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew for Plaintiffs and Appellants.
Armen L. George, in pro. per., and for Alan D. Barbour and Miyoko O. Barbour as Amici Curiae on behalf of Plaintiffs and Appellants.
Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Mark L. Kiefer, Laine E. Hedwall and Matthew E. Voss for Defendants and Respondents Parker, Covert & Chidester, Spencer E. Covert and Mark Williams.
Reich, Adell, Crost & Cvitan, Paul Crost and Carlos R. Perez for Defendants and Respondents Reich, Adell, Crost & Cvitan and Marianne Reinhold.
Stream & Stream, David D. Werner and Jamie E. Wrage for Defendants and Respondents Carl Axup and K. T. Bowers.
Rutan & Tucker and David C. Larsen for California School Boards Association Education Legal Alliance as Amicus Curiae on behalf of Defendants and Respondents Parker, Covert & Chidester, Spencer E. Covert, Mark Williams, Carl Axup and K. T. Bowers.
Hinshaw & Culbertson, Ronald E. Mallen and Paul E. Vallone as Amici Curiae on behalf of Defendants and Respondents.
Sidley Austin Brown & Wood and Mark E. Haddad for Amoco Corporation and Amoco Technology Company as Amici Curiae on behalf of Defendants and Respondents.
Best Best & Krieger, Jack B. Clarke, Jr., John F. Walsh, Angelica Y. Castillo and Megan K. Starr for David Kuzmich, Carole Castle and Ellen Schwartz as Amici Curiae on behalf of Defendants and Respondents.
OPINION
WERDEGAR, J.—One of the elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874 [254 Cal.Rptr. 336, 765 P.2d 498].) The question presented here is whether the trial court‘s denial, in the prior action, of a special motion to strike under California‘s anti-SLAPP (strategic lawsuit against public participation) statute (
FACTUAL AND PROCEDURAL BACKGROUND
The underlying action, Kuzmich v. Mexican Political Assn. (Super. Ct. Riverside County, 1996, No. 283066) arose from demonstrations and personal confrontations occurring in and around a public school. The plaintiffs were teachers and administrators at the school who alleged that the demonstrators’ actions and speech amounted to harassment and defamation; the defendants were allegedly participants in, or organizers of, the protests and accompanying confrontations.
Several of the Kuzmich defendants, including the Mexican Political Association (MPA), which organized the demonstrations, and Raul Wilson, an officer of the MPA, moved to strike the action under the anti-SLAPP statute (
The Kuzmich defendants sought review of this ruling by petition to the Court of Appeal for a writ of mandate. The Court of Appeal granted the petition in part, vacating the superior court‘s order denying the motion to
Wilson and the MPA then brought this suit for malicious prosecution and other causes of action against the Kuzmich plaintiffs and their attorneys. The superior court sustained demurrers to the complaint by the attorney defendants and by teachers Carl Axup and K. T. Bowers, and dismissed the action as to them.
The Court of Appeal affirmed. Observing that “the denial of a SLAPP suit motion to strike parallels the denial of a motion for summary judgment,” the court followed Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375 [90 Cal.Rptr.2d 408] (Roberts), which held that denial of a defense summary judgment motion normally establishes probable cause. As did the Roberts court (id. at p. 384), the Court of Appeal reasoned that the foundation for the contrary view, enunciated in Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777 [205 Cal.Rptr. 62] (Lucchesi), had been undermined by this court‘s intervening decision in Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863 (Sheldon Appel), adopting an objective standard of probable cause for malicious prosecution actions. One justice dissented from this holding, arguing that, because survival of a
We granted plaintiffs’ petition for review.
DISCUSSION
We addressed the probable cause element of malicious prosecution comprehensively in Sheldon Appel, supra, 47 Cal.3d 863. We first considered the policy reasons for adhering to limitations on the malicious prosecution tort,
Applying that policy perspective to the delineation of the probable cause element, this court held, first, that the existence or nonexistence of probable cause is a legal question to be resolved by the court in the malicious prosecution case; litigants are thus protected against the danger that a lay jury would mistake a merely unsuccessful claim for a legally untenable one. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-877.) We further held that probable cause is determined objectively, i.e., without reference to whether the attorney bringing the prior action believed the case was tenable (id. at pp. 877-882), and that the standard of probable cause to bring a civil suit was equivalent to that for determining the frivolousness of an appeal (In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179]), i.e., probable cause exists if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel, supra, at p. 886.) This rather lenient standard for bringing a civil action reflects “the important public policy of avoiding the chilling of novel or debatable legal claims.” (Id. at p. 885.) Attorneys and litigants, we observed, “‘have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . .‘” (Ibid., quoting In re Marriage of Flaherty, supra, at p. 650.) Only those actions that “‘any reasonable attorney would agree [are] totally and completely without merit‘” may form the basis for a malicious prosecution suit. (Ibid.)
Long before Sheldon Appel was decided, decisions in California and elsewhere established that a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court.2 Although this rule predates Sheldon Appel, it is motivated by much the same policy concern. Because malicious prosecution
Thus, in Fairchild v. Adams, supra, 170 Cal.App.2d 10, the superior court jury in the underlying case, a will contest, found the will to have been made under undue influence; the Court of Appeal affirmed, but this court reversed, holding the evidence insufficient to show that undue pressure had been brought to bear on the testamentary act itself. (Id. at pp. 11-12.) In the devisee‘s ensuing malicious prosecution action against the objector, the appellate court held the jury‘s verdict in the underlying case established probable cause for the contest despite its reversal on appeal. The jurors had “considered the evidence produced at the will contest alone sufficient, not only to justify the commencement of the proceeding, but also to support the judgment that the will and codicil were results of such undue influence. They were declared by the Supreme Court to be in error—but not unreasonable—in their opinions. [¶] . . . [¶] The favorable outcome of the proceedings in the court below is conclusive evidence, in the absence of fraud, of the existence of probable cause . . . notwithstanding reversal by the Supreme Court.” (Id. at p. 15, italics added.)
Similarly, in Cowles v. Carter, supra, 115 Cal.App.3d 350, in the underlying case, a civil action for child stealing and kidnapping, the jury returned a verdict for the plaintiffs, but the trial court granted judgment for the defense notwithstanding the verdict. (Id. at pp. 353-354Id. at p. 357, quoting Short v. Spragins (1898) 104 Ga. 628 [30 S.E. 810], italics added.)
Restatement Second of Torts, section 675, comment b, page 458; Prosser and Keeton, The Law of Torts (5th ed. 1984) section 120, page 894.
Several recent cases from other jurisdictions have reached the same conclusion as to denial of defense summary judgment motions, directed verdict motions, and similar efforts at pretrial termination of the underlying case. In Davis v. Butler (1999) 240 Ga.App. 72 [522 S.E.2d 548], for example, an action for abusive civil litigation (which required proof that the prior litigation was groundless, frivolous or vexatious) was held precluded where a defense motion for summary judgment had been denied in the underlying suit: “[S]uch denial of summary judgment constitutes a legal determination that the action has substantial justification, because it is not groundless or frivolous and can proceed to jury trial. Thus, it was not groundless, frivolous, or vexatious in fact or in law.” (Id. at p. 550.) Again, in Porous Media Corp. v. Pall Corp. (8th Cir. 1999) 186 F.3d 1077, the court, applying Minnesota law, held denial of a directed verdict for the
The same result has been held to follow under the federal Noerr-Pennington doctrine,5 which immunizes plaintiffs from counterclaims for, e.g., violation of antitrust law, based merely on having initiated non-sham business litigation. Sham litigation, for this purpose, is the “pursuit of claims so baseless that no reasonable litigant could realistically expect to secure favorable relief.” (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 62 [113 S.Ct. 1920, 1929, 123 L.Ed.2d 611].) A finding of probable cause to bring the action therefore precludes a finding the action was a sham. (Id. at pp. 62-63 [113 S.Ct. at pp. 1929-1930].) Significantly for our purposes, the denial of summary judgment in the underlying action has been held to demonstrate the action was not a sham. (Harris Custom Builders, Inc. v. Hoffmeyer (N.D.Ill. 1993) 834 F.Supp. 256, 261-262.) “An action that is well enough grounded, factually and legally, to survive a motion for summary judgment is sufficiently meritorious to lead a reasonable litigant to conclude that they had some chance of success on the merits. Consequently, plaintiffs’ infringement action is not a sham and, under Noerr-Pennington, cannot subject Harris to antitrust liability.” (Ibid., italics added; accord, Porous Media Corp. v. Pall Corp., supra, 186 F.3d at p. 1080, fn. 4; Gen-Probe, Inc. v. Amoco Corp., Inc. (S.D.Cal. 1996) 926 F.Supp. 948, 958.)
The same considerations lead us to conclude that a trial court‘s denial of a motion to strike under
In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legally tenable claim through a facially sufficient evidentiary showing and that the defendant‘s contrary showing, if any, does not defeat the plaintiff‘s as a matter of law. This determination establishes probable cause to bring the claim, for such an action clearly is not one that “‘any reasonable attorney would agree . . . is totally and completely without merit.‘” (Sheldon Appel, supra, 47 Cal.3d at p. 885.) A claim that is legally sufficient and can be substantiated by competent evidence is, on the contrary, one that a “reasonable attorney would have thought . . . tenable.” (Id. at p. 886.) The opposite rule, permitting such claims to form the basis for malicious prosecution liability, would unduly limit the right to invoke judicial remedies in pursuit of nonfrivolous claims. (Cf. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra, 508 U.S. at p. 56 [113 S.Ct. at p. 1926] [imposition of antitrust liability for the initiation of non-sham litigation would tend to infringe First Amendment right of petition].)
We are not persuaded by plaintiffs’ argument, echoing the dissenter in the Court of Appeal, that the denial of a
Nor, in this case, did the Kuzmich Court of Appeal‘s partial vacation of the trial court‘s
To support their contention that denial of a
In the underlying action in Lucchesi, an action to cancel a deed and to quiet title, the court denied a defense motion for summary judgment; the Lucchesi opinion does not state, however, whether the motion was denied because of the existence of triable issues of material fact (
In the defendant‘s ensuing malicious prosecution action, the appellate court rejected the former plaintiffs’ contention that denial of the summary judgment motion in the underlying case established probable cause for bringing the action, in part because a summary judgment motion may be denied for reasons other than existence of triable issues: “A motion for summary judgment may be denied for any of several reasons: (1) there may be a triable issue as to a material fact; (2) the supporting affidavits may be insufficient; (3) the only proof as to a material fact may be an affidavit or declaration by the sole witness to the fact; or (4) a material fact may involve an individual‘s state of mind and that fact is sought to be established solely by that individual‘s affirmation thereof. [Citations.]” (Lucchesi, supra, 158 Cal.App.3d at p. 787; see
The Lucchesi court‘s reasoning to this point is indisputably correct. Denial of a summary judgment motion on procedural or technical grounds, rather than for existence of triable issues of material fact, says nothing regarding the potential merit of the action and hence does not establish probable cause for its initiation. A parallel distinction can be made with regard to motions to strike under
Lucchesi continues, however, with the statement that “[e]ven when the denial is based on the first ground that a material issue of fact does exist, this procedure still falls short of a hearing on the merits.” (Lucchesi, supra, 158 Cal.App.3d at p. 787.) The decision goes on to hold, as well, that denial of a nonsuit motion does not establish probable cause because a nonsuit must be denied “if there is any substantial evidence tending to prove all the controverted facts necessary to establish the plaintiff‘s case,” a conclusion that, like denial of summary judgment, is “not a determination on the merits.” (Ibid.)
This latter part of Lucchesi‘s reasoning has been undermined by this court‘s subsequent decision in Sheldon Appel. As discussed above, our decision in that case clarified that probable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. (Sheldon Appel, supra, 47 Cal.3d at pp. 885-886.) Denial of a defense summary judgment motion on 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. As also discussed above, a claimant or attorney who is in possession of such evidence has the right to bring the claim, even where it is very doubtful the claim will ultimately prevail. (Id. at p. 885.) Lucchesi v. Giannini & Uniack, supra, 158 Cal.App.3d 777, is disapproved to the extent it holds otherwise.
Our favorable citation of Lucchesi in Crowley did not amount to approval of all of Lucchesi‘s reasoning. The issue raised on review in Crowley was whether we should retain an existing rule that “a suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause.” (Crowley, supra, 8 Cal.4th at p. 671.) In passing, we briefly addressed the defendants’ unrelated argument, which they had raised but abandoned during the trial court proceedings, that denial of a defense summary adjudication motion in the underlying case established probable cause. We remarked merely that the point “was without merit for the reasons stated in Lucchesi.” (Id. at p. 675, fn. 5.) Later in the opinion we again cited Lucchesi, this time for the proposition that denial of the summary adjudication motion was not a judgment on the merits for the purposes of the rule
We did not, in Crowley, indicate whether we approved the result in Lucchesi because, as the Lucchesi court had explained, summary judgment may be denied on any of a number of procedural or technical grounds, or whether we agreed with Lucchesi that even a determination of the existence of triable issues would not establish probable cause. Our favorable but passing mention of Lucchesi, therefore, did not constitute a full endorsement of its reasoning, which we have here disapproved in part for the reasons already given.
Plaintiffs also contend that the determination of probable cause from a finding or ruling in the underlying case is actually an aspect of collateral estoppel, and hence no such determination may be made in circumstances where no collateral estoppel would arise, as where the prior decision was neither final nor on the merits; application of collateral estoppel in these circumstances, plaintiffs argue, violates their due process and jury trial rights. In our view, plaintiffs’ invocation of collateral estoppel is a red herring.
The determination of probable cause does not operate, like collateral estoppel, to preclude relitigation of an issue of fact. Probable cause, for purposes of a malicious prosecution action, is a legal issue, not a factual one. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-877.) The determination arises, moreover, not because the same issue was litigated in the prior case, but because the result in the prior case (whether a verdict or judgment in the plaintiff‘s favor, or denial of a defense summary judgment or SLAPP motion) establishes the existence of probable cause as a matter of law, absent proof of fraud or perjury. The rule derives from the definition of probable cause—which is framed so as not to infringe on the right to bring nonfrivolous litigation—rather than from the doctrine of res judicata or any of its branches.
Lastly, plaintiffs contend that application of the probable cause determination in these circumstances contravenes the terms, and defeats the intent, of the anti-SLAPP statute. On the first point, plaintiffs cite
For the above reasons, we conclude the Kuzmich court‘s denial of the defendants’ motion to strike under
DISPOSITION
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Chin, J., and Moreno, J., concurred.
BROWN, J., Concurring.—Although I concur with most of the majority‘s reasoning, I write separately because I find its distinction of Crowley v. Katleman (1994) 8 Cal.4th 666 [34 Cal.Rptr.2d 386, 881 P.2d 1083] (Crowley) unpersuasive. (See maj. opn., ante, at pp. 824-825.) According to the majority, “[w]e did not, in Crowley, indicate whether we approved the result in Lucchesi [v. Giannini & Uniack (1984) 158 Cal.App.3d 777 [205 Cal.Rptr. 62]] because . . . summary judgment may be denied on any of a number of procedural or technical grounds, or whether we agreed with Lucchesi that even a determination of the existence of triable issues would not establish
In Crowley, Carole Katleman, represented by counsel (together, the defendants), filed a will contest, alleging six separate grounds for invalidating the will. (Crowley, supra, 8 Cal.4th at p. 673.) Arthur J. Crowley, the principal beneficiary of the will, filed a motion for summary adjudication. (Ibid.) The probate court granted the motion as to one of the grounds, but “denied the motion as to the remaining grounds, ruling there were triable issues of material fact as to each.” (Ibid., italics added.) After prevailing in the will contest, Crowley sued the defendants for malicious prosecution. (Id. at p. 674.) In their demurrer to the malicious prosecution action, the defendants contended, “by denying Crowley‘s motion for summary adjudication of issues as to all grounds of the will contest except lack of due execution, the probate court ‘necessarily determined’ there was probable cause for the remaining grounds . . . .” (Id. at p. 675.) We, however, rejected this contention in a footnote, finding it “was without merit for the reasons stated in Lucchesi . . . .” (Crowley, supra, 8 Cal.4th at p. 675, fn. 5.)
Because the probate court denied the motion for summary adjudication in the will contest on the merits, our footnote in Crowley necessarily endorsed Lucchesi‘s holding that “a determination of the existence of triable issues would not establish probable cause.” (Maj. opn., ante, at p. 825.) Like the majority, I disagree with this holding. (See id. at pp. 824-825.) I would therefore disapprove of Crowley to the extent it adopted this holding of Lucchesi.
Appellants’ petition for a rehearing was denied October 2, 2002.