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Page 1

Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)


Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

Only the Westlaw citation is currently available.


California Rules of Court, rule 8.1115, restricts
citation of unpublished opinions in California
courts.
Court of Appeal, First District, Division 1, California.
Martha R. DEPPER, Plaintiff and Respondent,
v.
Corey K. BURNETT et al., Defendants and Appellants.
No. A114147.
(Contra Costa County Super. Ct. No. C05-02481).
Jan. 11, 2007.
Stephen Robert Gianelli, San Francisco, CA, for
Plaintiff and Respondent.
Jerry Ray Hauser, Phillips, Greenberg & Hauser,
San Francisco, CA, John Diaz Coker, Pittsburg,
CA, for Defendants and Appellants.
MARCHIANO, P.J.
*1 The defendants in this malicious prosecution action filed a motion to strike plaintiff's complaint under the anti-SLAPP statute. (Code Civ.
Proc., 425.16.) The trial court denied the motion.
Defendants contend the denial was error. We disagree and affirm.
I. INTRODUCTION
We emphasize that the facts set forth below are
found in the record in the form of declarations and
other documents. The facts have not been adjudicated by a court, at least not in the record before us.
We also emphasize that our sole purpose in this
case is to decide whether the court erred in denying
the motion to strike-we do not resolve the merits of
the disputes between the parties in the malicious
prosecution action. As we discuss below, the

primary question is whether plaintiff made a prima


facie showing of facts sufficient to sustain a favorable judgment if the facts she submitted are credited-and the trial court was bound to accept as true
the evidence favorable to plaintiff. We therefore focus on plaintiff's facts from the standpoint of testing them for a prima facie case, without attaching
an appellate imprimatur to facts that may remain in
dispute at trial.
Defendants are a law firm, its two named law
partners, and two of their clients. Defendants Cory
and Alba Burnett hired defendants Christopher Lucas and his law firm, defendant Lucas & Goforth, to
prosecute an action against plaintiff Martha R. Depper that arose from the Burnetts' attempt to purFN1
chase a home owned by plaintiff.
FN1. The fifth defendant in the malicious
prosecution action is Lucas's law partner,
Michael Goforth.
We call this prior action, Burnett v. Depper,
FN2
the Property Action.
The complaint in that case
sought specific performance of a written contract,
purportedly signed by plaintiff Martha R. Depper,
to sell the property to the Burnetts. The complaint
also sought damages for breach of contract and
fraud. Soon after the complaint in the Property Action was filed, attorney Lucas learned, and subsequently admitted, that Martha R. Depper's signature on the contract of sale was forged. After approximately five months, Lucas voluntarily dismissed the complaint in the Property Action.
FN2. The full cite for the Property Action
is Burnett v. Depper (Super.Ct. Contra
Costa County, 2005, No. C05-1372).
Plaintiff Martha R. Depper's present malicious
prosecution action is based on the theory that defendants-the Burnetts, attorney Lucas, his partner
Goforth, and their firm Lucas and Goforth-maintained the Property Action for several months

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Page 2
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

without probable cause and with malice, after they


learned the signature on the sales contract was not
hers.
II. FACTS
Attorney Lucas filed the complaint in the Property Action on behalf of the Burnetts on June 30,
2005. The complaint names as defendants Martha
R. Depper, who is described in the record as a
FN3
90-year-old widow, and her son Stuart Depper.
The complaint alleges that the Burnetts entered into
a written contract with Martha for the purchase of a
home at 3130 Diablo View Road in Lafayette. The
sales contract is attached to the complaint as Exhibit A, and we will refer to it as such. Exhibit A bears
the purported signature of Martha, with her name
handprinted underneath.
FN3. For the most part, we henceforth
refer to Martha R. Depper and Stuart Depper by their first names. We intend no disrespect to the parties.
*2 Lucas's complaint alleged that the Burnetts
and Martha executed the sales contract by and
through her son and agent Stuart, and that Stuart
was at all times Martha's authorized agent and attorney in fact and had Martha's authority to enter
into the sales transaction. The complaint further alleged that the Burnetts had performed all conditions
precedent on the contract, and had sold their existing home in reliance on the contract, but that
Martha and Stuart failed to perform on the contract
and to convey clear title.
The complaint set forth three causes of action:
(1) specific performance of the contract known as
Exhibit A; (2) breach of contract; and (3) fraud,
primarily based on alleged false representations by
Stuart while allegedly acting as Martha's agent.
When he filed the complaint, Lucas also recorded a
lis pendens on the Lafayette property.
According to his declaration in opposition to
defendants' anti-SLAPP motion to strike, Stephen
Gianelli, Martha's attorney, reviewed the complaint

FN4
on or about July 18, 2005.
Gianelli noticed that
Martha's purported signature on Exhibit A did not
comport with my recollection of her classic crisp
signature that I had seen on two prior unrelated
FN5
agreements....
On July 20, Gianelli spoke to
Martha by phone; Martha confirmed my observation that her purported signature on Exhibit A to the
Complaint was not her own, and does not resemble
her own....
FN4. Subsequent dates are in 2005 unless
otherwise indicated.
FN5. At the time he reviewed the complaint on or about July 18, Gianelli represented Stuart. On July 20, Martha retained
Gianelli.
In her own declaration in opposition to the motion to strike, Martha states that [t]he purported
signature of Martha Depper appearing on ...
[Exhibit A] is not mine. I did not sign Exhibit A.
None of the handwriting, initials or printing on Exhibit A ... is mine. Martha denied handprinting her
name, and noted that instead of printing Depper
someone had printed Deppe'. Martha did state
that she signed a written acceptance of an offer to
sell the property to Alba Burnett, but that acceptance was never delivered to the Burnetts and in any
event expired after 30 days. She was adamant that
FN6
she did not sign Exhibit A.
FN6. It is not necessary to now relate the
disputed details over purported discussions
involving Stuart and the Burnetts regarding
the possible sale of Martha's property.
Martha did state in her declaration that she
never discussed any sale with the Burnetts,
and she did not authorize Stuart to be her
agent with regard to any contracts involving the property. While she may have
signed a contract that was never given to
the Burnetts, it is undisputed that she did
not sign Exhibit A, the contract on which
the Property Action is based and of which
the Burnetts sought specific performance.

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Page 3
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

According to the deposition testimony of Amy


Jimerson, the Burnetts' loan agent, Jimerson altered
Exhibit A with Alba Burnett's knowledge and consent by handwriting contract terms into preprinted
blank spaces-after the purported signature of
Martha was affixed to the document.
We turn to Gianelli's declaration in opposition
to the motion to strike, and its supporting documentation, for the following chronology of events.
Again, we note that we state facts that simply show
a prima facie case; we do not state them as if they
had been adjudicated and are undisputed.
On July 20, after speaking with Martha on the
phone about her purported signature on Exhibit A
and being retained by Martha, Gianelli wrote Lucas
and informed him that Martha advises that the signature affixed to ... Exhibit A ... is not hers. Gianelli also advised Lucas that regardless of the validity of the signature, the offer contained in Exhibit A
had expired.
*3 On July 26, Martha went to Gianelli's office
and provided exemplars of her signature and her
printing in Gianelli's presence. Gianelli compared
the exemplars with the signature on Exhibit A and
noticed that the two signatures were so dissimilar
that no reasonable person could conclude that they
FN7
were made by the same person.
He also noticed the misspelling of the printed Depper. Gianelli immediately faxed Lucas a letter with copies of
the exemplars attached, informing him that his
position in this lawsuit is that Lucas's clients had
forged Martha's signature. Gianelli offered to have
the original Exhibit A-which was in Alba Burnett's
possession-analyzed by an expert. Lucas never responded to this offer.
FN7. We have examined the signature exemplar and compared it to the signature on
Exhibit A. We agree with Gianelli's assessment.
On July 28, Gianelli and Lucas met for a site
inspection of the property. During their encounter

Lucas admitted the signature on Exhibit A was not


Martha's. Lucas claimed that Stuart had signed
Martha's name to Exhibit A, and that Lucas had
several witnesses to the signing, including Alba.
Lucas accused Gianelli of knowing that it was StuFN8
art who signed Martha's name to Exhibit A.
Gianelli returned to his office and faxed a letter to
Lucas. Gianelli wrote that while there was a dispute
over who had forged Martha's name on Exhibit A,
it was undisputed that the signature was not
Martha's. Gianelli cited Civil Code section 3388
and informed Lucas that he could not obtain specific performance of a contract against a person who
had not signed it.
FN8. Gianelli declared that prior to his
joint representation of Stuart and Martha in
the Property Action, he assured himself
that neither Stuart nor Martha signed
Martha's name to Exhibit A.
On August 1, Gianelli served Lucas with
Martha's motion to expunge the lis pendens. In support of the motion, Martha submitted a declaration
dated August 1 reciting that she did not sign Exhibit A. She also submitted a request that the court
take judicial notice of numerous examples of her
signature from existing legal documents, including
two grant deeds.
Lucas then sent Gianelli several threatening letters and e-mails, accusing him of ethical and criminal violations including legal malpractice, subornation of perjury, and elder abuse (of Martha, presumably). On August 3, Lucas telephoned Gianelli and
was shouting and abusive over the phone. Lucas
also claimed that he would contact the Attorney
General of the United States about alleged bankruptcy fraud committed by Martha, and that Lucas
would take Stuart down piece by piece. In Gianelli's words, Lucas made it very clear in that conversation that the only manner in which [the Property Action] would be resolved by settlement is if
[Martha] transferred title of [the Lafayette property]
to the Burnetts pursuant to Exhibit A....

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Page 4
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

On approximately September 1, Lucas e-mailed


Gianelli and told him the Burnetts were going to
move to compel arbitration pursuant to the terms of
Exhibit A. Gianelli replied that Lucas was on notice that the purported signature of Martha Depper
... [on] Exhibit A does not match, and is not even
close to matching, Martha Depper's true signature
as it appears on the two grant deeds appended to
her request for judicial notice ... which is all but
conclusive proof that the putative arbitration agreement (Exhibit A to the Complaint) was never
signed by Martha. Gianelli also told Lucas that the
Burnetts have no witness that can contradict
Martha's statement in her August 1 declaration that
she did not sign Exhibit A.
*4 On September 2, Lucas responded with an
e-mail that accused Gianelli of forcing Lucas to
make all necessary motions. Lucas also wrote,
You know it is vain to expect that all of your
threats will cause me to abandon my client's [sic ]
rights. Therefore, your letters strike me as pointless
and possibly even irrationally grandiose.
Also on September 2, Gianelli sent an e-mail to
defendant Goforth, Lucas's law partner, asking him
to compare the signatures. Goforth called Gianelli
that same day. Gianelli told Goforth about the
forged signature, and that he, Lucas, and their firm
were subject to liability for malicious prosecution
for maintaining the Property Action. Goforth indicated that his firm was going to wait for the ruling
on the motion to expunge the lis pendens before deciding whether to dismiss the Property Action. Gianelli memorialized the telephone discussion in a
letter dated September 3.
On September 6, Gianelli deposed Alba Burnett, who testified that she did not see Martha sign
Exhibit A. And, while Alba presumably had possession of Exhibit A, Alba testified she had no document with a known signature of Martha in her possession. (Alba also made admissions seriously damaging to the Burnetts' claim that Stuart acted as
Martha's agent.)

On October 13, Gianelli e-mailed Goforth


about Alba's admissions in her deposition. Gianelli
noted the fraud cause of action was meritless because Alba testified at her deposition that she and
her husband never spoke to Martha about selling
the property, or had a written communication from
her regarding any sale. Gianelli also noted, again,
that it was undisputed that Martha did not sign Exhibit A. Gianelli informed Goforth that if one cause
of action in the Property Action was without probable cause, and favorably terminated for Martha,
she could sue for malicious prosecution.
On October 13, Lucas sent Gianelli an abusive
e-mail in which he accused Gianelli of having
Martha sign a false declaration. Lucas also accused
Gianelli of put[ting] that poor old lady in a situation of embarrassment and loss and anguish when
you really should have been honest. Lucas advised
Gianelli to speak to Martha about settlement, to
keep her out of this meat grinder-presumably a
reference to the litigation.
On October 14, Gianelli faxed Goforth a letter
questioning the decision to await the ruling on the
motion to expunge before deciding whether to dismiss. Gianelli noted that Exhibit A was obviously
forged, and again noted that only one favorably
terminated cause of action filed or maintained
without probable cause would give rise to liability
for malicious prosecution. Gianelli also noted that
Martha was under stress, was not sleeping well as a
result of the lawsuit, and had developed high blood
pressure.
On October 15, Gianelli e-mailed Goforth excerpts from Zamos v. Stroud (2004) 32 Cal.4th 958
(Zamos ), which holds that even if an action was
filed with probable cause, maintaining that action
once it was found to lack probable cause gives rise
to malicious prosecution liability.
*5 On October 17, Gianelli e-mailed to Lucas
and Goforth a demand that you immediately dismiss the Burnetts' objectively untenable lawsuit
against Martha R. Depper....

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Page 5
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

On October 17 and 18, the lawyers for the respective parties exchanged further e-mails. Lucas
wwrote that he planned to add further causes of
action for fraud against Martha, and apparently accused Gianelli of submitting perjured testimony to
the court on the motion to expunge, regarding Lucas's admission at the site visit that Exhibit A was
forged. Gianelli again referred his opponents to
Zamos.
On October 21, the court issued its tentative
ruling granting Martha's motion to expunge the lis
pendens: [The Burnetts] have failed to meet their
burden of showing by a preponderance of the evidence the probable validity of the real property claim
(CCP 405.32). [The Burnetts] have failed to show
that the signature on Ex[hibit] A to the Complaint
is that of Martha Depper and thus CC 3388 is a
complete bar to their specific performance cause of
action . (Emphasis added.) Lucas called Gianelli
and told him he intended to appear and contest the
tentative ruling.
On October 22, Gianelli wrote Lucas and Goforth a lengthy letter, again characterizing the Property Action as untenable, again demanding dismissal (especially now that the court had issued its
tentative ruling against them), and noting their liability for malicious prosecution.
At the October 24 hearing on the motion to expunge, Lucas admitted on the record, in open court,
that Martha's purported signature on Exhibit A had
FN9
been forged.
Gianelli announced he planned to
move for summary judgment. The court adopted its
tentative ruling and granted the motion to expunge
from the bench.
FN9. The court told Lucas that the Exhibit
A attached to his complaint is the one that
somebody forged her signature on. Lucas
replied, I guess somebody did.
On October 25, Gianelli sent Lucas and Goforth an e-mail demanding that they dismiss the
Property Action by October 26 or risk a lawsuit

against them, their firm, and the Burnetts for malicious prosecution. Lucas responded with an abusive
e-mail threatening sanctions and claiming Gianelli
had hired a former client to harass the Burnetts. On
October 28, Gianelli again wrote Lucas demanding
dismissal and threatening a malicious prosecution
action.
On November 4 and 10, during and after settlement discussions, Lucas and the Burnetts took the
position that they would only settle the Property
Action if Martha waived her claim for malicious
prosecution. Lucas claimed he would maintain the
action against Martha absent such a waiver.
On November 11, Gianelli learned that Martha
had suffered a stress related medical event due to
her worry and upset about being sued in the Property Action and had been rushed to obtain emergency medical treatment. Gianelli completed his
preparation of a motion for summary judgment.
On November 14, at 6:00 a.m., Gianelli faxed a
letter to Lucas informing him that Gianelli would
be immediately filing a summary judgment motion,
and then would file suit for malicious prosecution.
At just after 8:00 a.m. that day, Gianelli filed the
motion for summary judgment. The filing of the
motion appeared on the superior court's website by
10:00 a.m. At 11:51 a.m., Lucas filed a request for
dismissal of the Property Action.
*6 On November 29, Gianelli filed the instant
malicious prosecution on Martha's behalf. The complaint alleged that from June 30 through November
14, defendants initiated and maintained the Property Action without probable cause and with
malice, and that the voluntary dismissal on November 14 constituted a favorable termination of the
Property Action. More specifically, the complaint
alleges (1) that the Burnetts either forged the signature on Exhibit A or the forgery was done with their
knowledge and consent; and (2) that from July 19
until the dismissal on November 14, defendants
wrongfully maintained the Property Action because
they knew that Martha's purported signature on Ex-

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Page 6
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

hibit A was forged.


On January 13, 2006, Lucas, Goforth and their
law firm filed an anti-SLAPP motion to strike. The
Burnetts subsequently joined in the motion. The trial court denied the motion to strike, ruling that
Martha had presented facts sufficient to show a
prima facie case.
III. DISCUSSION
A.
The anti-SLAPP statute provides that 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);
see Braun v. Chronicle Publishing Co. (1997) 52
Cal.App.4th 1036, 1042-1043 (Braun ); Lafayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995)
37 Cal.App.4th 855, 858-859 (Lafayette Morehouse
FN10
).)
FN10. SLAPP stands for Strategic
Lawsuit Against Public Participation. (
Lafayette
Morehouse,
supra,
37
Cal.App.4th at p. 858.)
Acts in furtherance of the right of petition or
free speech include: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative,
executive, or judicial body, or any other official
proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue
of public interest; [or] (4) ... any other conduct in
furtherance of the exercise of the constitutional
right of petition or the constitutional right of free
speech in connection with a public issue or an issue

of public interest. ( 425.16, subd. (e); see Mann


v. Quality Old Time Service, Inc. (2004) 120
Cal.App.4th 90, 102.)
The statute posits ... a two-step process for determining whether an action is a SLAPP. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier I
).) This two-step process is also described as a twopronged test.
First, the court decides whether the defendant
has made a threshold showing that the challenged
cause of action [arises] from protected activity. (
Navellier I, supra, 29 Cal.4th at p. 88; see Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67 (Equilon ).)
*7 A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause
[of action] fits one of the categories spelled out in
section 425.16, subdivision (e).... ( Braun, supra,
52 Cal.App.4th at p. 1043.) And whether a cause of
action aris[es] from protected activity, within the
scope of section 425.16, subdivision (b)(1), means
simply that the defendant's act underlying the
plaintiff's cause of action must itself have been an
act in furtherance of the right of petition or free
speech. ( City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78; see ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001.)
If the trial court finds that the defendant has
satisfied the first prong of the test, and shown the
cause of action arises from protected activity, the
court turns to the second prong. The court must
then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (
Navellier I, supra, 29 Cal.4th at p. 88; see Equilon,
supra, 29 Cal.4th at p. 67.)
This requires an evidentiary showing by the
plaintiff, who must show not only that her complaint is legally sufficient, but is supported by a
prima facie showing of facts sufficient to sustain a
judgment in her favor. (See Navellier I, supra, 29
Cal.4th at pp. 88-89; Nagel v. Twin Laboratories,

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Page 7
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

Inc. (2003) 109 Cal.App.4th 39, 45 (Nagel ).)


Stated another way, the plaintiff need only show
her complaint is legally sufficient and supported by
a prima facie showing of facts sufficient to support
a judgment in her favor if the evidence she has submitted is credited. ( Navellier v. Sletten (2003) 106
Cal.App.4th 763, 768 (Navellier II ).)
In ruling on a motion to strike, the trial court
does not weigh the evidence or determine questions
of credibility; instead the court accepts as true all
of the evidence favorable to the plaintiff . ( Nagel,
supra, 109 Cal.App.4th at pp. 45-46 (emphasis added); Navellier II, supra, 106 Cal.App.4th at p.
768.) The trial court does consider the defendant's
evidence against the plaintiff, but only to determine if it defeats the plaintiff's showing as a matter of
law. ( Kashian v. Harriman (2002) 98 Cal.App.4th
892, 906.)
When a trial court denies a motion to strike on
the ground that the plaintiff has established the requisite probability of success ... 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. ( Wilson v. Parker,
Covert & Chidester (2002) 28 Cal.4th 811, 821,
emphasis added.) Thus, plaintiff's burden as to the
second prong of the anti-SLAPP test is akin to that
of a party opposing a motion for summary judgment. [Citation.] We determine de novo whether
that burden has been met. ( Navellier II, supra,
106 Cal.App.4th at p. 768.)
*8 Only a cause of action that satisfies both
prongs of the anti-SLAPP statute-i.e., that arises
from protected speech or petitioning and lacks even
minimal merit-is a SLAPP, subject to being
stricken under the statute. ( Navellier, supra, 29
Cal.4th at p. 89.)
B.
Defendants' action challenged by Martha's malicious prosecution action, the filing and maintain-

ing of the Property Action, clearly satisfies the first


prong. Litigation involves the right to petition the
government for the redress of grievances, and thus
falls squarely within the protective scope of the
anti-SLAPP statute. (See Navellier I, supra, 29
Cal.4th at p. 90.)
The question before us is whether Martha met
her burden under the second prong, i.e., whether
Martha has shown a probability of prevailing on her
malicious prosecution claim. The trial court correctly concluded that Martha met that burden by
presenting a prima facie showing of facts sufficient
to sustain a judgment in her favor if the evidence
she has submitted is credited.
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 [her],
plaintiff's, favor [citations]; (2) was brought
without probable cause [citations]; and (3) was initiated with malice [citations]. ( Bertero v. National
General Corp. (1974) 13 Cal.3d 43, 50 (Bertero );
see Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 871-872 (Sheldon Appel ).)
Two legal principles are salient to this appeal.
First, malicious prosecution includes continuing to
prosecute a lawsuit discovered to lack probable
cause ... ( Zamos, supra, 32 Cal.4th at p. 970.)
Thus, as Martha argues on appeal, whether the
Property Action had probable cause when it was
initiated is irrelevant. Martha contends the defendants are liable for malicious prosecution for maintaining the Property Action after they discovered it
lacked probable cause.
Second, a lawsuit for malicious prosecution
may lie when some, but not all-indeed, if only oneof the grounds for relief asserted in a lawsuit were
brought with malice and without probable cause. (
Crowley v. Katleman (1994) 8 Cal.4th 666, 671,
676-679, 695; Bertero, supra, 13 Cal.3d at pp.
55-57.)

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Page 8
Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

Since only one cause of action can support liability for malicious prosecution, we need only discuss the Property Action's cause of action for specific performance of the contract known as Exhibit
A. Thus, we decide this narrower issue: whether
Martha shows a prima facie case that she will prevail because the defendants maintained the cause of
action for specific performance without probable
cause and with malice, and that cause of action was
terminated in Martha's favor.
1. Lack of Probable Cause. A cause of action
lacks probable cause if it was not legally tenable
when viewed objectively. ( Zamos, supra, 32
Cal.4th at p. 971; see Sheldon Appel, supra, 47
Cal.3d at p. 878.) The test of objective tenability is
whether any reasonable attorney would have
thought the cause of action was tenable. ( Zamos,
supra, 32 Cal.4th at p. 971; Sheldon Appel, supra,
47 Cal.3d at p. 886.)
*9 Martha has shown a prima facie case that
Lucas continued to maintain the specific performance cause of action without probable cause. On July 20, Gianelli informed Lucas that the signature on
Exhibit A was not Martha's. On July 26, Gianelli
faxed Lucas an exemplar of Martha's signature that
was so different from the signature on Exhibit A
that a layperson would reasonably conclude the
contract signature was a forgery. There is evidence
that on July 28 Lucas admitted the signature was
not Martha's. Martha executed a declaration to that
effect on August 1 in connection with her motion to
expunge the lis pendens. On September 2, Goforth
was made aware that the signature was forged.
On October 21, the trial court issued a tentative
ruling that the Burnetts had not shown the signature
was Martha's and thus could not maintain a cause of
action for specific performance against Martha,
who was a nonsignatory to the contract. (Civ.Code,
3388.) On October 24, Lucas admitted in open
court that the signature was a forgery. Lucas continued the action until November 14 before dismissing it.

This evidence establishes that any reasonable


attorney would have concluded (1) that Martha did
not sign Exhibit A and (2) could not be liable for
specific performance as a nonsignatory to the contract. Martha made a prima facie case that Lucas,
Goforth and their law firm maintained the specific
performance cause of action without probable
cause. Martha also made a prima facie case of the
Burnetts' knowledge that the specific performance
cause of action lacked probable cause. Martha
showed that Alba Burnett did not see Martha sign
Exhibit A. Martha also showed that Alba, in essence, could not authenticate the signature on that
document as Martha's because Alba denied having
a document signed by Martha in her possession,
even though Alba possessed the original of Exhibit
A.
Lucas maintains that he was permitted time to
investigate the claim of the forged signature, and
thus did not maintain the Property Action without
probable cause. But this claim does not detract from
Martha's showing of a prima facie case that Lucas
was repeatedly informed, and in fact twice admitted, that the signature was forged-yet he maintained
the suit for months.
Lucas also claims that on August 8 he obtained
a copy of Martha's signature on a declaration filed
in a federal action, and that signature appeared to
me to be the same as the signature on Exhibit A.
The signature to which Lucas refers is markedly
dissimilar to the signature on Exhibit A, and in fact
closely resembles Martha's signature exemplar, her
signature on her August 1 declaration in the proceedings on the motion to expunge, and her signature on her declaration in opposition to the antiSLAPP motion to strike.
Finally, at oral argument Lucas claimed that he
had reason to believe, and cause to investigate, that
Stuart signed the contract on Martha's behalf as her
agent. Lucas argues that as a result, the contract
was valid and enforceable against Martha under a
theory of ostensible agency-i.e., where the principal
allows the impression that the purported agent is

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Not Reported in Cal.Rptr.3d, 2007 WL 70442 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

acting on her behalf. Lucas did raise this argument


below, but it is unclear that he amended his complaint to allege this alternative theory of recovery.
In any case, Martha stated in her August 1 declaration and her declaration in opposition to the motion
to strike that (1) she never gave Stuart permission
to act as her agent or sign the contract on her behalf; (2) that she believed that Alba, not Stuart,
forged her signature, and (3) that she never spoke to
the Burnetts about selling them the property, and
never told them Stuart was her agent or was authorized to sign documents on her behalf. Whatever
the merits of an ostensible agency theory, Lucas has
not overcome Martha's prima facie case.
*10 The Burnetts rely on the so-called advice
of counsel defense to malicious prosecution. Reliance on the advice of counsel may establish probable cause. (See Ross v. Kish (2006) 145
Cal.App.4th 188, 202-203 (Ross ); Pond v. Insurance Co. of North America (1984) 151 Cal.App.3d
280, 288.) But the advice of counsel defense requires that the clients seek out counsel in good faith
and disclose all relevant facts to counsel. (Ibid.) It
appears, at least at the stage of a mere showing of a
prima facie case, that there are several facts which
the Burnetts may have known but did not disclose
to Lucas-including the fact that the signature on Exhibit A was forged and the fact that the Burnetts'
loan agent unilaterally added contract terms to Exhibit A.

jective intent in bringing the prior action. Malice is


shown when the prior action is brought for an improper purpose. And a lack of probable cause is one
factor in the assessment of the presence or absence
of malice. ( Ross, supra, 145 Cal.App.4th at p. 204;
Swat-Fame, Inc. v. Goldstein (2002) 101
Cal.App.4th 613, 633, overruled on unrelated issue
by Zamos, supra, 32 Cal.4th at p. 973 (Swat-Fame
).) Malice may be inferred when a party knowingly
brings an action without probable cause. (Ross,
supra at p. 204; Swat-Fame, supra at p. 634.)
We need not discuss the issue of malice at any
length in this opinion. The record is replete with
Lucas's alleged abusive conduct and persistence in
maintaining the specific performance cause of action without probable cause and in light of clear
evidence, and a trial court ruling, that Martha did
not sign Exhibit A. Lucas then refused to dismiss
the action unless Martha waived her right to sue for
malicious prosecution. Lucas was aware that his
maintaining the Property Action was having serious
adverse effects on the health of a 90-year-old woman. This evidentiary showing adds up to a prima
facie case that the Property Action was maintained
FN11
with malice.

The Burnetts knew that Lucas was suing


Martha to seek specific performance on a contract
that the Burnetts knew had been unilaterally altered
and that they may have known was forged. There is
sufficient evidence of a prima facie case that the
Burnetts did not disclose these facts to Lucas. Under these circumstances, and at the stage of a prima
facie case and not a trial on the merits, we cannot
say that, as a matter of law, the advice of counsel
defense defeats Martha's showing of a prima facie
case.

FN11. We acknowledge that defendant Lucas maintains that he pursued the Property
Action in good faith and without malice,
and was performing reasonable investigation of the validity of the Exhibit A signature while he maintained the suit. The
reasonableness of counsel's persistence is,
of course, a question of law to be decided
on a case-by-case basis.... ( Zamos, supra,
32 Cal.4th at p. 970, fn. 9.) In this particular case, on the facts before us, we conclude that Martha has shown a prima facie
case that Lucas surpassed the bounds of
reasonable investigation and maintained
the specific performance cause of action
without probable cause.

2. Malice. The element of malice in the tort of


malicious prosecution relates to the purpose or sub-

We have only reviewed the question of


whether Martha stated a prima facie

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(Cite as: 2007 WL 70442 (Cal.App. 1 Dist.))

case. We express no opinion on the ultimate disposition of the malicious prosecution action.
3. Favorable Termination. If an action terminates other than on the merits, a court will generally look to the reasons underlying the termination
to see whether the termination reflects the opinion
of the plaintiff or the trial court that the action
could not succeed. (See Ross, supra, 145
Cal.App.4th at p. 198; Oprian v. Goldrich, Kest &
Associates (1990) 220 Cal.App.3d 337, 343.) In
the ... context of a malicious prosecution action, a
voluntary, unilateral dismissal of the underlying
dispute is generally considered a termination in favor of the defendant. [Citation.] ( Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775,
779.) This would not be true where the dismissal
was on technical grounds or as a result of an agreement or settlement unrelated to the merits. (Oprian,
at p. 343.)

We concur: STEIN and SWAGER, J.


Cal.App. 1 Dist.,2007.
Depper v. Burnett
Not Reported in Cal.Rptr.3d, 2007 WL 70442
(Cal.App. 1 Dist.)
END OF DOCUMENT

*11 Here, Lucas voluntarily and unilaterally


dismissed the Property Action, under circumstances
that clearly indicated he knew, as the trial court had
ruled, that the cause of action for specific performance utterly lacked merit because of the forged signature. This dismissal went to the merits, as opposed to a technical or agreed-upon termination of
the action. This shows, at least for the purposes of a
prima facie case, that the Property Action was terminated in Martha's favor.
We conclude that plaintiff made the requisite
showing of a prima facie case, sufficient to show a
probability that she will prevail on her claim for
malicious prosecution. Thus the trial court correctly
denied the anti-SLAPP motion to strike.
IV. DISPOSITION
The order denying the anti-SLAPP motion to
FN12
strike is affirmed.
FN12. Defendants' motion for judicial notice is denied. Martha's motion for Rule 27
sanctions is also denied.

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

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