Clear Channel Outdoor v. Adversiting Display Systems

Filed 9/20/07 Clear Channel Outdoor v. Adversiting Display Systems CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In previous litigation, competing billboard companies sued each other over a disputed billboard site. The company that prevailed in that litigation now sues its competitor for malicious prosecution in bringing the previous legal claim. A bench trial was held to determine whether the previous claim was brought with probable cause. The court found probable cause for instituting and maintaining the previous claim, and entered a defense judgment. We affirm the judgment.

factual and
procedural background

Plaintiff Clear Channel Outdoor, Inc. (Clear Channel) is an outdoor advertising company that leased San Francisco property at Sixth and Bryant Streets for maintenance of an advertising billboard. The lessors wrote to Clear Channel purporting to end the lease and lessors then signed a lease with a competing billboard company, defendant Advertising Display Systems (ADS). ADS entered the premises and began tearing down Clear Channels sign to construct ADSs own sign. Clear Channel protested that its lease was not effectively terminated, and a series of lawsuits arising from the battle for control of the billboard property ensued.

The lessors initiated an unlawful detainer action against Clear Channel to evict it from the Sixth Street property. Clear Channel prevailed and was awarded legal possession of the leasehold. In simultaneous separate litigation, Clear Channel sued the lessors and ADS for forcible entry and detainer of its leasehold interest, interference with economic relations, and related wrongs. (Clear Channel Outdoor, Inc. v. Suckle (Sept. 29, 2004, A102492) [nonpub. opn.] (Clear Channel I).) Clear Channel obtained a temporary restraining order, and then a preliminary injunction, giving it possession of the billboard sign pending resolution of the case. In that action by Clear Channel, ADS cross-complained for interference with its economic relations. The cross-complaint alleged that Clear Channels refusal to surrender possession of the disputed billboard leasehold disrupted ADSs economic relationship with an advertising agency. ADS voluntarily dismissed the cross-complaint when the trial court ruled that Clear Channels lease had not been terminated and thus ADS had no right to possession of the Sixth Street property. Clear Channel prevailed on its claims against the lessors and ADS.

Clear Channel now sues ADS, ADS principals Raymond Reudy and Mark Kevin Hicks, and ADS attorney Gerald Murphy and his law firm Jacobs, Spotswood, Casper & Murphy for prosecuting the cross-complaint in that underlying litigation. We previously affirmed an order denying a motion to strike Clear Channels malicious prosecution case as a strategic lawsuit against public participation (SLAPP suit). (Code Civ. Proc.,  425.16.) (Clear Channel Outdoor, Inc. v. Jacobs, Spotswood, Casper & Murphy, LLP (Nov. 17, 2004, A105671) [nonpub. opn.] (Clear Channel II).) The case returns to us following a bifurcated trial in which the trial court found that defendants had probable cause to file and to maintain their cross complaint in the underlying real estate litigation. The court entered a defense judgment, and plaintiff Clear Channel appeals.

discussion

A. Malicious prosecutiongeneral principles and role of judge and jury

To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that the prior action (1) was initiated by or at the direction of the defendant and legally terminated in the plaintiffs favor, (2) was brought [or maintained] without probable cause, and (3) was initiated with malice. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740; see Zamos v. Stroud (2004) 32 Cal.4th 958, 966 [tort includes continuing to prosecute a lawsuit discovered to lack probable cause, italics omitted].) [C]ourts have long recognized that the tort has the potential to impose an undue chilling effect on the ordinary citizens willingness to report criminal conduct or to bring a civil dispute to court and, as a consequence, the tort has traditionally been regarded as a disfavored cause of action. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872.) [T]he elements of the tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim. (Ibid.) These considerations have informed the California Supreme Courts analysis of the proper role of the court and jury in resolving malicious prosecution complaints. (Id. at p. 874.)

In its simplest terms, the torts element of probable cause is a question of law for the court and the element of malice is a question of fact for the jury. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at pp. 874-882.) The existence or absence of probable cause to bring the challenged claim presents a question of law: the probable cause element calls on the trial court to make an objective determination of the reasonableness of the defendants conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. (Id. at pp. 875, 878.)

When the state of the facts known to defendant is resolved or undisputed, probable cause is a pure question of law for the court. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat pp. 881.) When there is a dispute as to the state of the defendants knowledge and the existence of probable cause turns on resolution of that dispute, . . . the jury must resolve the threshold question of the defendants factual knowledge or belief. (Ibid.) For example, in a case in which plaintiff alleged defendant maliciously instituted a prior proceeding to have plaintiff declared insane for making criminal threats, disputed evidence on whether threats were made had to be submitted to a jury. (Id. at pp. 879-880, discussing Frazen v. Shenk (1923) 192 Cal. 572.) If the jury determined that threats were made, then the trial court would assess whether those threats constituted probable cause to institute the prior proceeding. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat pp. 879-880.)

A finding of probable cause ends the matter. If the court determines that there was probable cause to institute the prior action, the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat p. 875.) If the court finds that the prior action was instituted without probable cause, then the question of defendants alleged malice is presented to the jury. The malice element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action, and past cases establish that the defendants motivation is a question of fact to be determined by the jury. (Id. at p. 874.)

B. Malicious prosecutionprobable cause standard

Probable cause to initiate or to prosecute a lawsuit is viewed leniently by the courts. The lawsuit need only be legally tenable. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat p. 878.) Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit. (Zamos v. Stroud, supra, 32 Cal.4th at p. 970.) It is not enough that the action proves meritless or that at the time of its initiation some, or even most, attorneys would have thought the action meritless.  Probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack meritthat is, those which lack probable causeare the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.  (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743, fn. 13, italics in original.)

In determining whether there was probable cause to institute or to prosecute an action, a court must make a sensitive evaluation of legal principles and precedents and consider the evolutionary potential of legal principles. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat pp. 875, 886.) An actions tenability cannot be judged with hindsight sharpened by recent judicial pronouncements. Probable cause must be evaluated in light of legal precedent existing at the time of the underlying litigation and with added leeway for an evolution of legal precedents that litigants are entitled to advocate. (Id. at p. 886.)

C. The cross-complaint was legally tenable

ADS filed its cross-complaint against Clear Channel for interference with economic relations in October 2001, and dismissed it in January 2003. The traditional statement of the elements of the tort are:   (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendants knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. [Citations.]  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) At the time that the cross-complaint was being prosecuted, the leading case on the interference tort was Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376 (Della Penna). Della Penna explained that the third element requires proof that defendants acts were wrongful by some legal measure other than the fact of interference itself. (Della Penna, supra, at p. 393.) The California Supreme Court declined to define the precise scope of wrongfulness (id. at pp. 392-393) and further refinement did not come until March 2003, when the high court issued Korea Supply Co. (Korea Supply Co., supra, at pp. 1134, 1158-1159.)

It is this third element of the tort at issue here. Clear Channel argues that ADSs cross-complaint for interference with economic relations was not legally tenable because there was no basis for asserting that Clear Channel committed any wrongful act in asserting legal entitlement to the disputed billboard leasehold. Clear Channel notes that it pursued lawful processes to retain possession of the leasehold. In the underlying real estate litigation, Clear Channel obtained a temporary restraining order and then a preliminary injunction granting Clear Channel possession of the billboard sign during the pendency of the litigation. Clear Channel argues that [n]o reasonable attorney could believe that Clear Channel, by being in possession or asserting possession under authorization of a court order, was committing an independently wrongful act.

The argument focuses too narrowly upon court-sanctioned possession of the leasehold and ignores other facts supporting ADSs cross-complaint. The trial court found probable cause for the cross-complaint given evidence of Clear Channels anticompetitive behavior toward ADS that supported allegations that Clear Channel was holding over for the purpose of interfering with ADSs contract and business. The evidence included undisputed testimony that (1) ADS was a very small competitor of Clear Channel with a few locations compared to Clear Channels 2,000 billboard leases; (2) when ADS took over a Clear Channel location previous to the Sixth Street property, Clear Channel told defendant Hicks of ADS to go do something to [himself] and that nobody jumps our leases; and (3) Clear Channel wrote to ADSs attorney, a month after ADSs cross-complaint was filed, threatening ADS with further litigation at the Sixth Street property and expansion of the litigation to include all ADS locations.

Clear Channel argues that anticompetitive behavior fails to meet the standard for wrongful conduct because improper motives are irrelevant to interference claims. Clear Channel is right about the irrelevance of motives to interference claimsbut only under recent legal authority that did not exist at the time the cross-complaint was instituted and prosecuted. About a month after ADS abandoned its cross-complaint, the California Supreme Court announced that actionable interference with economic relations requires proof of an act that is wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive. (Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1159, fn. 11.) The high court went on to explain that an act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. (Id. at p. 1159.)

But at the time ADS was prosecuting its cross-complaint, Della Penna was the controlling authority and that case did not define the outer limits of wrongful conduct for an interference claim. (Della Penna, supra, 11 Cal.4th at p. 393.) As noted earlier, a lawsuits tenability must be evaluated in light of legal precedent existing at the time of the underlying litigation. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat p. 886.) A reasonable attorney could have interpreted Della Penna to permit an interference claim based on improper motives. Della Penna left to another day questions whether anticompetitive conduct or a  disinterested malevolence  are actionable interference. (Della Penna, supra, 11 Cal.4th at p. 393.)

Significantly, the California Supreme Court in Della Penna quoted an Oregon case for the rule that a defendants interference must be wrongful by some measure beyond the fact of the interference itself.  (Della Penna, supra, at p. 393, quoting Top Service Body Shop, Inc. v. Allstate Ins. Co. (Ore. 1978) 582 P.2d 1365, 1371.) The quoted case states that [d]efendants liability may arise from improper motives or from the use of improper means. (Top Service Body Shop, Inc., supra, at p. 1371.) Some intermediate appellate courts interpreted Della Penna to signify that interference with economic relations  liability may arise from improper motives or from improper means.  (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 602; disapproved on that point in March 2003 by Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1159, fn. 11.) Following Della Penna, a federal court surveyed California law and lamented that the precise type of wrongfulness necessary to trigger liability for intentional interference with prospective economic advantage remains very much an unresolved question in California. (Marin Tug & Barge, Inc. v. Westport Petroleum, Inc. (9th Cir. 2001) 271 F.3d 825, 830-831.) We cannot accept our dissenting colleagues conclusion that no reasonable attorney could argue for the evolution of Della Pennasundefined standard of wrongfulness to encompass improper motives among competitors.Given the state of the law at the relevant time, and the leeway a litigant must be given to argue for an evolution of legal precedents, the interference with economic relations cross-complaint was legally tenable. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3dat p. 886.)

D. This courts previous ruling on the anti-SLAPP motion is not law of the case

In a prior proceeding in this case, ADSs attorneys brought an unsuccessful motion to strike Clear Channels malicious prosecution case as a SLAPP suit. (Clear Channel II.) The trial court denied the anti-SLAPP motion upon finding that, while the malicious prosecution lawsuit arose from an act in furtherance of the attorneys right of petition or free speech, Clear Channel provided sufficient evidence establishing a probability of prevailing on the claim. (Code Civ. Proc.,  425.16; see Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [anti-SLAPP motion standards].) We affirmed the trial court order. In doing so, we noted that Clear Channel made a prima facie showing that ADSs attorneys did not have probable cause to believe that the element of wrongful conduct (necessary to ADSs interference claim) could be proven, given the fact that Clear Channels conduct of remaining in possession of the property was authorized by court order. (Clear Channel II, supra, A105671.) However, we also noted the limited nature of our holding: We emphasize that we express no opinion as to the merits of Clear Channels malicious prosecution claim. At this early stage of the proceedings, we have simply found that Clear Channels evidence, if credited, is sufficient to survive an anti-SLAPP motion. (Ibid.)

Despite our cautionary note, Clear Channel argues that our previous decision conclusively established that ADSs attorneys lacked probable cause to pursue the interference claim. Clear Channel relies upon the law-of-the-case doctrine: where an appellate court states a rule of law necessary to its decision, the rule must be adhered to in any subsequent appeal in the same case. (People v. Boyer (2006) 38 Cal.4th 412, 441.) [T]he law-of-the-case doctrine prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.  (Ibid.)

In Bergman v. Drum (2005) 129 Cal.App.4th 11, 18-21, cited by Clear Channel, the court applied the law-of-the-case doctrine in holding that an appellate determination that plaintiff presented a prima facie case sufficient to defeat an anti-SLAPP motion precluded defendants subsequent summary judgment motion based on the same evidence. A critical point in Bergman is that the defendants summary judgment motion relied upon the same factual circumstances and arguments that [defendant] had submitted in support of defendants anti-SLAPP motion. (Id. at p. 17.) The law-of-the-case doctrine governs only principles of law on remand, and controls the outcome only to the extent the evidence is substantially the same. (People v. Boyer, supra, 38 Cal.4th at p. 442.)

The evidence presented at the trial here was not substantially the same as the evidence presented on the anti-SLAPP motion. The anti-SLAPP motion evidence consisted of declarations focused upon Clear Channels court-sanctioned possession of the leasehold, and the pleadings. On that limited evidence, we found a prima facie showing that ADSs attorneys did not have probable cause to believe that wrongful conduct could be proven. The trial evidence was far more extensive than the evidence presented on the anti-SLAPP motion at the start of the case. The trial on probable cause consumed four days, during which seven witnesses testified. That testimony provided additional evidence concerning Clear Channels alleged wrongful conduct, including anticompetitive behavior toward ADS that supported allegations that Clear Channel was holding over for the purpose of interfering with ADSs contract and business. In short, while Clear Channel pursued lawful means (a court injunction) to retain possession of the leasehold, there was evidence at trial that Clear Channel harbored an improper motive: the destruction of a small competitor. On the basis of the facts known to ADS and its attorneys, the cross-complaint for interference with economic relations was legally tenable at the time the cross-complaint was instituted and prosecuted.

disposition

The judgment is affirmed.

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Sepulveda, J.

I concur:

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Reardon, Acting P.J.

Dissenting Opinion of Rivera, J.

We previously concluded that Clear Channel Outdoor, Inc.s (Clear Channel) assertion of its right to continue in possession of leased premises at Sixth and Bryant Streets in San Francisco pursuant to court orders could not provide any basis for Advertising Display Systemss (ADS) cross-complaint for intentional and negligent interference with prospective advantage. (Clear Channel Outdoor, Inc. v. Jacobs, Spotswood, Casper & Murphy, LLP (Nov. 17, 2004, A105671) [nonpub. opn.] at p. 6.) The majority now concludes that Clear Channels motives for holding over do provide an arguable basis for ADSs cross-complaint. This is because, the majority reasons, under authority existing at the time the cross-complaint was instituted and prosecutedspecifically Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376 (Della Penna)it was not clear a plaintiff must allege and prove actual unlawful or tortious conduct to state a cause of action for intentional interference with prospective advantage. According to the majority, it was arguable under Della Penna that even lawful competitive conduct could be actionable if fueled by the improper motive of wishing harm on a competitor. (Maj. opn., ante, at pp. 6-8.) I disagree.

Della Penna redefined the prima facie case for garden-variety intentional interference with prospective advantage causes of action. (Della Penna, supra, 11 Cal.4th at pp. 392-393.) But Della Penna did not have occasion to discuss the competitive privilege because the parties to that action were not competitors. Thus, Della Penna did not disturb (or even address) the well-established rule that in a competitive setting, ill will directed toward a competitor does not support a claim of intentional interference with prospective business relations.

It is an entrenched principle that interference with a competitors business by lawful means is protected, even creditable, conduct. Perhaps the most significant privilege . . . for interference with a prospective business advantage is free competition. Ours is a competitive economy in which business entities vie for economic advantage. . . . [S]uccess goes to him who is able to induce potential customers not to deal with a competitor. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, disapproved on another ground in Della Penna, supra, 11 Cal.4th at p. 393, fn. 5.)

The privilege of competition is often defined by reference to the Restatement Second of Torts[1] or to Prossers treatise.  The policy of the common law has always been in favor of free competition, which proverbially is the life of trade. So long as the plaintiffs contractual relations are merely contemplated or potential, it is considered to be in the interest of the public that any competitor should be free to divert them to himself by all fair and reasonable means. . . . In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence ofprohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, . . . enter into secret negotiations behind the plaintiffs back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability. ([Prosser on Torts (4th ed. 1971) 130, pp. 954-955].) (A‑Mark Coin Co. v. General Mills, Inc. (1983) 148 Cal.App.3d 312, 323-324, italics added.) Over the years, the courts have crystallized this principle into a simple, straightforward declaration:  [T]he competition privilege is defeated only where the defendant engages in unlawful or illegitimate means.  (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 603, disapproved on another ground in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11; see also Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 843 [same].)

As early as 1935 our courts held that even acts of coercion undertaken to drive a competitor out of business are not actionable if their purpose is to engage in competition: The fact that the methods used were ruthless, or unfair, in a moral sense, does not stamp them as illegal. It has never been regarded as the duty or province of the courts to regulate practices in the business world beyond the point of applying legal or equitable remedies in cases involving acts of oppression or deceit which are unlawful. . . . [If t]he alleged acts of defendants do not fall within the category of business methods recognized as unlawful, . . . they are not actionable. (Katz v. Kapper (1935) 7 Cal.App.2d 1, 6 (Katz); see also San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 43 [unethical, ruthless or unfair competitionthe  Attila the Hun School, scorch the earth policy, do anything to win  kind of behavioris privileged absent evidence of acts sufficiently wrongful to constitute actionable, unlawful or illegitimate conduct].)

In applying the law of competitive privilege to this case we must be careful to distinguish between the factual underpinnings of ADSs claim and evidence of other conduct. The only factual predicate for ADSs cross-complaint is Clear Channels continued possession and assertion of its right of possession under its lease. We have already held this conduct was not even arguably actionable. The other acts cited by ADSwhich ADS characterized at oral argument as coercion and intimidationdid not form a part of ADSs claim, but were offered at trial in the malicious prosecution action solely as evidence of Clear Channels wrongful intent, i.e., the intent to interfere with all of ADSs business.[2] So, ADSs claim boils down to this: The legitimate act of holding over on the lease became arguably illegitimate (and actionable) by virtue of Clear Channels intention to injure the interests of a much smaller competitor [ADS]. This is not a legally tenable argument.

Robust competition, by definition, involves the intent to expand ones own business at the expense of, and to the detriment of, ones competitors. As stated long ago in Katz, an intent to harm a business rival is not actionable so long as it is for the purpose of building up ones own business. (Katz, supra, 7 Cal.App.2d at p. 4.) In California the Supreme Court . . . adopted the rule that an act lawful in itself does not become unlawful because of a malicious or wrongful motive. . . . [This rule] recognize[s] the principle that detriment to business which is incidental to lawful competition is damnun absque injuria. (Id. at p. 5; see also Union Labor Hosp. v. Vance Lumber Co. (1910) 158 Cal. 551, 554 [evil motive does not render a lawful action unlawful].)

The competitive privilege is uniquely distinct from other privileges that will excuse or justify interference with prospective advantage. The latter generally require a balancing of interests and/or considerations of the defendants purpose. (See Rest.2d Torts, 767, pp. 26-39, 769-774, pp. 44-54.) For example, the financial interest privilege (id., 769, p. 44) is a qualified privilege that depends for its existence upon the circumstances of the case and can turn upon considerations of purpose or motive (Lowell v. Mothers Cake & Cookie Co. (1978) 79 Cal.App.3d 13, 18, 22). The competitive privilege involves no balancing of competing interests and the defendants purpose or motive is not considered unless the competitor is acting solely to [satisfy] his spite or ill will and not at all to the advancement of his competitive interests over the person harmed (Rest.2d Torts, 768, com. g, p. 43, italics added) as, for example, where one acts to divert business from a competitor outside the arena of competition (ibid.), or when one acts to destroy anothers business with the intent of discontinuing ones own business after the destruction is accomplished (Katz, supra, 7 Cal.App.2d at pp. 4-5).

It is clear from the language in the cross-complaint that ADS was objecting to Clear Channels attempts to retain for itself a source of income to which ADS claimed entitlement. Paraphrasing Katz, [N]otwithstanding the [contention] that the sole purpose was to drive [the] plaintiff out of business[, t]he defendant[ is] not charged with making any effort to deprive [the] plaintiff of [its] trade except by transferring the same to [itself]. This is essentially business competition. (Katz, supra, 7 Cal.App.2d. at p. 5.)

Clear Channels holding over on the leased premises was unquestionably legitimate behavior, intended to build up Clear Channels business at the expense of ADS. The so-called evil motive to harm ADSs business is irrelevant because the intent to harm or even ruin a competitor in order to gain a competitive advantage has never been held to overcome the competitive privilege, and the law could not arguably have evolved in that direction.

I would therefore conclude that ADSs cross-complaint for intentional interference with prospective advantage was legally untenable, and would reverse the judgment and give Clear Channel an opportunity to prove malice and damages.

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RIVERA, J.

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Analysis and review provided by La Mesa Property line attorney.

[1] (1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor . . . does not interfere improperly with the others relation if [] (a) the relation concerns a matter involved in the competition between the actor and the other and [] (b) the actor does not employ wrongful means and [] (c) his action does not create or continue an unlawful restraint of trade and [] (d) his purpose is at least in part to advance his interest in competing with the other. (Rest.2d Torts, 768, p. 39.)

[2] ADS cites to Clear Channels threats of expanded litigation, its statement that  nobody jumps our leases  (maj. opn, ante, at p. 6), its refusal to accept ADSs offer of mitigation, its secret negotiations with the lessor, and its delay in asserting rights under the lease as evidence of Clear Channels wrongful motive to interfere with ADSs business.