O&M v. Wells Fargo Bank











Filed 4/28/17 O&M v. Wells Fargo Bank CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


O&M LLC et al.,

Plaintiffs and Respondents,

v.

WELLS FARGO BANK, N.A.,

Defendant and Appellant.



G052840

(Super. Ct. No. 30-2015-00787852)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed.
Sheppard, Mullin, Richter & Hampton, John C. Dineen and Karin Dougan Vogel for Defendant and Appellant.
Brown, Rudnick, Ronald Rus, Joel S. Miliband, Randall A. Smith and Shoshana B. Kaiser for Plaintiffs and Respondents.

Wells Fargo Bank, N.A. (Wells Fargo) appeals from an order denying its special motion to strike[1] the malicious prosecution action filed against it and its attorneys[2] by O&M, LLC (O&M) and Nexus Development Corporation, Central Division (Nexus), the property management corporation for O&M (collectively O&M). Wells Fargo contends O&Mfailed to carry its burden of showing no reasonable attorney would have found the underlying action tenable or that it was brought with malice. We disagree and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
In May 2005, O&M entered into a master lease for property upon which it developed a planned unit development. The following year, O&M subleased three parcels of land containing three residential units to Uptown 4 Townhomes, LLC (Uptown).
Uptown obtained three loans from Wells Fargo in the aggregate amount of $1.4 million to purchase the subleases, secured by a deed of trust on each sublease. The deeds of trust named Wells Fargo as lender and beneficiary and Uptown as borrower and trustor.
The subleases required Uptown to make annual lease payments to O&M every year on January 1. O&M agreed not to terminate the leases upon any default “if withinsixty (60) days after service of written notice from Lessor expressing Lessor’s intention to terminate this Lease for such default or breach and describing the same, the holder of the trust deed shall cure such default or breach . . . ; provided, however, that if the holder of the trust deed shall fail or refuse to comply with the conditions of this subparagraph (d), Lessor shall be released from the covenants of forbearance herein contained.”
In January 2008, Uptown failed to make its lease payments and in JulyO&Msent it notices of default for the three subleases. Uptown did not cure the defaults.
On October 31, Matthew Kaufman, on behalf of O&M, sent 60-day notices of default to Wells Fargo for each sublease to the post office box address identified in the deeds of trusts. The notices informed Wells Fargo that O&M intended “to terminate the [s]ublease[s] unless [Wells Fargo] cures [Uptown’s] default in full within sixty (60) days from the date of this letter.” These notices were returned as undeliverable.
On November 10, 2008, Toni Clark, Development Manager and Director of Legal Services for Nexus, sent a letter to Wells Fargo at an alternate address, informing Wells Fargo that O&M’s original 60-day default notices had been returned and enclosing the original unopened notices. Wells Fargo stamped the default notices received on November 14. The 60-day period for Wells Fargo to cure Uptown’s defaults to avoid termination of the leases were thus set to expire on January 10, or at the latest on January 13, 2009.
In December 2008, Tina Fisher, a process specialist with Wells Fargo responsible for reviewing and processing delinquencies on land leases, including the three deeds of trust in this case, received a copy of O&M’s November 10th letter and the default notices. On December 16, Fisher called Kaufman and left a voicemail message, but he did not return her call.
On December 22, Fisher called Clark “to determine the amount of the default . . . and to confirm that Wells Fargo serviced the Deeds of Trust related to the Subject Properties.” When Clark did not answer, Fisher left a voicemail message “that [she] would be out of the office on vacation and that if this matter needed immediate
attention she should contact Kelly Ball so . . . Ball could arrange for payment to be made.” That same morning at about 11:48 a.m., Clark responded by e-mail to Fisher, advising her of the “the amount necessary to cure the default on all [three] units combined,” including interest, through December 18, 2008. Fisher’s e-mail server generated an automated response indicating she would be out of the office from December 23 to January 5, 2009, and to contact Ball “if you need assistance while I’m out of the office.” Around 9:00 a.m. on December 23, Clark sent another e-mail to Fisher, attaching a spreadsheet identifying the amounts owed on each lease to cure the defaults as of that date, and further notifying her of the 2009 payments that would become due on January 1, 2009, and declared delinquent if not paid by January 10.
On January 5, 2009, Clark again e-mailed Fisher notifying her the 60-day default period would end that week and asking if Wells Fargo intended to cure the defaults. Fisher called Clark the next day and left a message. Clark replied via e-mail a few hours later, reminding Fisher she had already sent her “the breakdown of the funds necessary to bring this matter current” and reiterating the 2009 payments were due on January 1, 2009, and had to be paid by January 10 or be deemed delinquent.
On January 8, Fisher e-mailed Clark for the borrower and property addresses of the three properties to confirm Wells Fargo held loans on them. Wells Fargo failed to tender any cure payment by January 13.
Fisher and Clark continued to correspond via e-mail until March regarding various information requested by Fisher. Two days after the cure deadline, Fisher
e-mailed Clark for a tax identification number. Clark e-mailed back the same day, attaching a completed W-9 and instructing Fisher to “forward the check(s) to my attention, and let me know if you need anything else.”
Fisher received the tax identification number on February 6 and three days later “sent an internal communication within Wells Fargo to have a payee header established for O&M . . . so that checks could be issued . . . .” According to Fisher, the payee header was established on February 26, whereupon she e-mailed Clark apologizing for the delay and requesting an updated invoice. Clark e-mailed back the same day that she would supply the new amounts.
On Friday, February 27, Clark provided an updated invoice indicating “[t]he total amount due . . . is good through March 6, 2009.” Fisher did not read the
e-mail until Monday, March 2. She then “sent an internal request within Wells Fargo for checks . . . to cure the delinquency.” Wells Fargo issued two of the checks on March 4, and the third one on March 5.
Meanwhile on March 5, Clark e-mailed Fisher stating O&M had not received payment and, “‘[i]n the event we have not received the funds necessary to bring these amounts current . . . I have been directed to proceed with the foreclosure process.’” According to Fisher, the e-mail “did not provide a deadline for . . . a response or advise when O&M intended to ‘proceed with the foreclosure process.’ At no time during our communications did . . . Clark convey in either her written or verbal communications a deadline, or any sense of urgency with regard to the payments being requested. I did not have any indication . . . Clark and/or O&M would not accept the funds if not tendered by a date certain.”
Fisher received the checks on March 11, at which time she sent them via
two-day mail to Clark. She also e-mailed Clark to let her know and to provide the tracking number.
Fisher followed up on April 10 but never heard again from Clark. Later that month, O&M returned the checks, stating it was unwilling to accept them. Fisher “was shocked when [she] received all three checks back in the mail.” At the end of July, O&M terminated the subleases.
In October 2009, O&M sent a memorandum to Uptown, setting forth its terms for re-subleasing the property. Among other things, O&M demanded payment of past due rent, reimbursement of O&M’s expenses such as premises liability insurance and attorney fees and costs, personal guarantees by Uptown’s principals, an indemnity and release from Uptown, plus “a one-time re-subleasing fee in the amount of $50,000.”
The next month, Larry Nabb of Wells Fargo sent an e-mail to representatives of Uptown, calling O&M’s re-subleasing fee a “ransom fee” and that Wells Fargo’s only options were either to pay or “get aggressive.” Five days later, outside counsel for Wells Fargo e-mailed Nabb, advising that “[t]he [s]ublease[s] . . . clearly provide[] that Wells Fargo (as holder of the deed of trust) would have sixty (60) days from service of written notice of the sublessee/borrower’s default in which to cure that default.” According to counsel, “[p]resuming that proper notices [of default] were sent, and no timely cure was tendered, then there was a right to terminate the [s]ublease[s].” In his response to counsel’s e-mail, Nabb admitted Wells Fargo received the notices of default on November 14, 2009. Wells Fargo did not agree to O&M’s new terms and two and a half years later filed the underlying lawsuit.
The Underlying Action
In February 2012, Wells Fargo sued O&M and Nexus for wrongful detention, breach of contract,promissory estoppel, unjust enrichment/restitution, unfair competition, and declaratory relief. The original, first amended (FAC), and second amended (SAC) complaints, contained various contradictory allegations.
The original complaint alleged that on February 27, 2009, O&M agreed to waive the 60-day deadline for Wells Fargo to exercise its option to cure Uptown’s default when it wrote to Wells Fargo and “provided it with a current invoice for the total amount due and promisedpayment would be accepted if sent prior to March 6, 2009.”Wells Fargo thereafter sent three checks to O&M on March 5, 2009.
The FAC asserted additional claims for breach of contract and constructive fraud. It also changed its allegations regarding O&M’s purported waiver of the 60-day cure deadline and the date by which it tendered its funds. Wells Fargo now alleged that Clark, as Nexus’s authorized representative, never “express[ed] that it was O&M’s intention to terminate the [s]ubleases if payment was not received by a date certain, and represented and acted in accordance with a continued waiver of the defaults pending payment. [¶] . . . In reliance upon Nexus’s promise that the calculation of the cure amount was good through March 6, 2009, [Wells Fargo] mailed three checks payable to O&M dated March 4, 2009 and March 5, 2009.” In a subsequent paragraph, Wells Fargo admitted these checks were not tendered until March 11, 2009.
The trial court partially sustained O&M’s demurrer to the FAC without leave to amend, noting among other things, the “different allegations” regarding the timing of the tender of funds. But it overruled the demurrer as to the causes of action for unjust enrichment/restitution, unfair competition, declaratory relief, and relief from forfeiture.
Wells Fargo then filed a SAC alleging only those four causes of action. In doing so, it eliminated its admission that it had not sent any checks to O&M until March 11, 2009, instead stating only that it mailed checks “dated March 4, 2009 and March 5, 2009.”
Eight months after initiating the lawsuit, in October 2012, Wells Fargo asked for an extension of time to respond to O&M’s request to produce documents supporting the allegations of the SAC. In a meet and confer letter dated October 17, 2012, counsel for O&M stated the request was unreasonable because it “indicate[d] neither you nor your client ever reviewed documents before filing the complaint. Your client had three years from the date of the actions complained of to gather and fully review all documents in support of its allegations.” The letter also addressed Wells Fargo’s delay in producing its PMK for deposition: “The refusal of your client to produce the [PMK] for deposition (especially after requesting and receiving a month’s delay) not only lacks substantial justification . . . , but is further confirmation that your client has no personal knowledge of, let alone evidentiary support for, the allegations and other factual contentions in its pleading.” He warned, “No reasonable attorney would have filed the initial complaint, [or] . . . continue to pursue the remaining claims . . . [and] unless the [action was] dismissed, . . . [O&M would] pursue all . . . available remedies” after the case concluded.
In November, Wells Fargo produced its PMK, Cindy Shanabrook, for deposition. She testified Wells Fargo received the 60-day notices of default on November 14, 2008, the subleases provided Wells Fargo 60 days within which to cure the defaults, Wells Fargo did not cure the defaults by the January deadline, and Wells Fargo had nothing in its file stating O&M informed it that it did not have to cure the defaults by the January 2009 deadline.
On September 19, 2013, O&M moved for summary judgment. Less than two months later, Wells Fargo recorded notices of pendency of action (lis pendens) against two of the three homes that had been the subject of the terminated subleases. The two homes were owned by Kaufman, one of Nexus’s senior officers and O&M’s secretary. Wells Fargo had learned he owned the two homes during depositions taken in May and June 2013. The remaining home against which a lis pendens was not filed was owned by a third party.
On April 22, 2014, the trial court granted the summary judgment motion, stating: “The lynchpin of Wells Fargo’s [SAC] is the claim that O&M’s termination of the subleases was unlawful or wrongful. [¶] . . . [¶] The subleases are clear. Wells Fargo had the right to cure within 60 days’ notice. It did not. And Wells Fargo has offered no evidence that any act of O&M prevented Wells Fargo from doing so.” Wells Fargo appealed but voluntarily dismissed the appeal before briefing.
The Present Case
O&M sued Wells Fargo and Pite for malicious prosecution. Wells Fargo and Pite each filed separate anti-SLAPP motions. The court denied both motions, overruling their objections to O&M’s evidence.
The court found Wells Fargo and Pite lacked probable cause to bring or maintain the causes of action for unjust enrichment/restitution, declaratory relief, and relief from forfeiture based on Wells Fargo’s admissions in its pleadings and filings. “No reasonable attorney would have thought the unjust enrichment/restitution claim legally tenable; an unjust enrichment claim does not lie where, as here, the parties have multiple enforceable express contracts covering the same subject matter at issue. . . . Wells Fargo’s declaratory relief and relief from forfeiture claims were based on two factual underpinnings: first, that O&M’s 60-day notices were deficient; and second, that O&M, through Nexus, had waived and/or extended the 60-day cure period beyond March 6, 2009. Wells Fargo’s admissions in its pleadings and the exhibits attached thereto show the 60-day notices were adequate as a matter of law . . . . The evidence also shows [Well Fargo and Pite] had no reasonable cause to believe O&M and/or Nexus had waived or extended the cure period beyond March 6, 2009, or that its March 11, 2009 tender was timely.”
As to malice, the court determined “[t]he evidence also shows [Wells Fargo and Pite] initiated/maintained the claims asserted in the [SAC] knowing they lacked probable cause . . . after Wells Fargo had unsuccessfully attempted to negotiate the reinstatement of the subleases and Uptown had stopped making payments to Wells Fargo on the subject loans, leaving Wells Fargo with a total loss of some $1.4 million . . . which gives rise to an inference of malice due to improper purpose.”
DISCUSSION
“[A] SLAPP suit is ‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’ [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783.) To prevent such actions, section 425.16, subdivision (b)(1), provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the 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.” Section 425.16 is to be “construed broadly.” (§ 425.16, subd. (a).)
We apply a two-step analysis to an anti-SLAPP motion. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) “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 v. Sletten (2002)
29 Cal.4th 82, 89.)We review de novo a trial court’s ruling granting or denying a motion to strike under anti-SLAPP law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
O&M acknowledges a malicious prosecution complaint satisfies the first prong. (Soukup, supra, 39 Cal.4th at p. 291.) Accordingly, we may move directly to the second prong of the analysis—whether O&M satisfied their burden of demonstrating a probability of prevailing.
“‘A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff’s favor. [Citation.] The court cannot weigh the evidence, but must determine as a matter of law whether the evidence is sufficient to support a judgment in the plaintiff’s favor. [Citation.] The court must consider not only facts supported by direct evidence, but also facts that reasonably can be inferred from the evidence. [Citation.] The defendant can defeat the plaintiff’s evidentiary showing by presenting evidence that establishes as a matter of law that the plaintiff cannot prevail. [Citation.] The defendant cannot defeat the plaintiff’s evidentiary showing, however, by presenting evidence that merely contradicts that evidence but does not establish as a matter of law that the plaintiff cannot prevail. [Citation.]’ [Citation.]” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266,
1274-1275.)
We now apply these rules to O&M’s cause of action for malicious prosecution. “To prevail on a malicious prosecution claim, the plaintiff must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. [Citation.]” (Soukup, supra, 39 Cal.4th at
p. 292.)The first element is undisputed. We thus turn to whether O&M demonstrated a probability of prevailing on the issues of probable cause and malice. The answer is yes.
I.Lack ofProbable Cause
Probable cause to bring an action exists where the suit is “‘arguably tenable, i.e., not so completely lacking in apparent merit that no 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.] In view of that policy, ‘[o]nly those actions that “‘any reasonable attorney would agree [are] totally and completely without merit’” may form the basis for a malicious prosecution suit.’ [Citation.] A litigant lacks probable cause ‘“if he [or she] relies upon facts which he [or she] has no reasonable cause to believe to be true, or if he [or she] seeks recovery upon a legal theory which is untenable under the facts known to him [or her].”’ [Citation.] ‘“Where a prior action asserted several grounds for liability, an action for malicious prosecution will lie if any one of those grounds was asserted with malice and without probable cause.”’ [Citation.]” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 875 (Nunez).) Here, O&M has shown a probability of prevailing on the unjust enrichment/restitution cause of action.
“[O]ne method of showing lack of probable cause is to prove that no reasonable attorney would contend that the facts alleged in the underlying action would establish liability under the legal theory advanced—i.e., the claim is legally untenable. [Citations.] . . . [¶] The other method is to prove that the attorney (1) alleged facts the attorney knew or subsequently learned were not true, or (2) the attorney had no reasonable basis to infer that evidence of the alleged facts could be developed through discovery or further investigation—i.e., the claim is factually untenable. [Citations.]” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 363.)
California courts are split on whether a separate cause of action for unjust enrichment exists. (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 (Levine).) Some have recognized a separate cause of action (see Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 (Peterson)), while others have concluded “‘“[t]here is no cause of action in California for unjust enrichment”’” (Levine, supra, 189 Cal.App.4th at p. 1138). But all acknowledge that unjust enrichment is synonymous with restitution. (Ibid.)
“An unjust enrichment theory is inapplicable . . . [where] express contracts” govern the matter at hand. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 (Durell).) Additionally, “‘“There is no equitable reason for invoking restitution when the plaintiff gets the exchange which he expected.”’” (Id. at p. 1371.) “‘[T]he “mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.”’ [Citation.]” (Peterson, supra, 164 Cal.App.4th at p. 1593.)
No reasonable attorney would contend the facts alleged in the prior action established a cause of action for unjust enrichment/restitution. The claim was based on allegations Wells Fargo was a third party beneficiary under the subleases, O&Munlawfully terminated the subleases, and was unjustly enriched by retaining the compensation allowed under the subleases. But Wells Fargo’s own pleadings show the termination of the subleases was not unlawful but in compliance with the terms of the subleases; therefore, O&M was not unjustly enriched. The subleases explicitly provided Wells Fargo with an opportunity to cure any default by Uptown by making payment within 60 days after service of written notice. Uptown defaulted on the subleases. Clark forwarded the previously-returned notices of default to Wells Fargo on November 10, 2008. Wells Fargo acknowledged it received the notices on November 14, 2008. The original complaint admitted no cure payment was attempted prior to March 5, 2009. Although the SAC omits the date upon which the cure payment was tendered, the FAC concedes Wells Fargo did not tender any payment until March 11, 2009, with checks dated after the cure deadline.
In addition, Wells Fargo’s outside counsel had rendered an opinion, three years before the filing of the underlying action, that under the express terms of the subleases, O&M had the right to terminate the subleases if Wells Fargo failed to cure the defaults within 60 days after service of written notice. Wells Fargo’s own allegations confirm it did not comply. Wells Fargo admits as much in its reply brief.
Wells Fargo argues this e-mail only states the opinion of one attorney who was involved in the case for a few days and did not make its claims untenable because it did not discuss the issue of waiver, making its analysis “overly narrow and of limited utility.” According to Wells Fargo, its claims were factually tenable because O&M waived the 60-day deadline. We are not persuaded.
“‘“[W]aiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” [citation].’ [Citations.] The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. [Citation.]” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, italics added.) “Waiver requires an existing right . . . , actual or constructive knowledge of the right’s existence, and either an actual intention to relinquish it or conduct so inconsistent with any intent to enforce the right as to induce a reasonable belief it has been relinquished. [Citations.]” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 959.) Whether waiver exists is a question of fact unless “the relevant facts are undisputed and only one inference may reasonably be drawn from the facts.” (Bower v. Inter-Con Security Systems, Inc. (2014) 232 Cal.App.4th 1035, 1043, italics added.) O&M’s conduct did not constitute a waiver as a matter of law.
Hendren v. Yonash (1966) 243 Cal.App.2d 672 (Hendren), cited by Wells Fargo, is instructive. The case involved a contract for the cutting and removal of timber on the land with an option to extend the rights. Around the time the extension option expired, the landowners performed various services to the loggers, e.g., providing keys for access roads, locating property lines, and helping them find employees. Neither party realized the time for exercising the option had passed. The landowners sent a message to the lumber company about delinquent taxes but did not receive a reply. Upon realizing the extension option deadline had passed, the landowners notified the lumber company to cease all logging. The lumber company immediately tendered the delinquent taxes and the annual fee, but the landowners refused the tender. (Id. at pp. 675-676.)
Hendren concluded no waiver occurred: “The burden is on the party asserting the waiver to prove it by evidence that does not leave the matter uncertain. [Citation.] There has been no proof of an intention on the part of respondents to waive, and their acts were not such as would necessarily induce belief of relinquishment of any right. Until June 11, 1961, appellants had a perfect right to log the land. The evidence is that neither party thought of the expiration date of the option. There was no duty on respondents to recall that date to mind and to notify appellants of it. The contract places the duty on appellants.” (Hendren, supra, 243 Cal.App.2d at p. 680.)
The same applies here. Until the 60-day January deadline, Wells Fargo had the absolute right to cure the defaults. Although both parties here knew of that date, unlike in Hendren, the subleases nevertheless placed the duty to cure on Wells Fargo. O&M had no obligation to remind Wells Fargo of the deadline and the fact Clark did so on numerous occasions did not demonstrate an intention to waive the deadline. The subleases clearly stated O&M’s intention not to terminate the subleases for any default if, within 60 days after service of written notice, Wells Fargo “shall cure such default.” Wells Fargo did not do so.
Like the landowners in Hendren, O&M did not waive the 60-day default period. Wells Fargo did not timely tender the cure payment, and O&M’s continued communications with it did not constitute a waiver of the January deadline. (See Drips v. Moore (1918) 179 Cal. 249, 252 [“demands for payment or . . . forbearance to exercise . . . right of forfeiture pursuant to the provisions of the contract” does not constitute waiver]; Kay v. Kay (1961) 188 Cal.App.2d 214, 218 [despite “a long lapse of time between the first default and the declaration of default and demand for possession, . . . mere lapse of time does not amount to a waiver” where delay could have been an act of “forbearance rather than the intentional relinquishment of the contract right”]; Ross v. Gentry (1928) 94 Cal.App. 742, 744-745 [no waiver by continued solicitation of payment of overdue principal and interest]; 54 Cal.Jur.3d (2017) Real Estate, § 197, pp. 272-273 [“right to declare a forfeiture is not waived by mere delay in declaring it, by forbearance, by willingness to accept overdue payments, or by a demand or continued effort to collect installments provided for in the contract,” fns. omitted].)
The remaining cases cited by Wells Fargo are inapposite in that they all involved more than a lapse of time and continued solicitation of payment. (See Boone v. Templeman (1910) 158 Cal. 290, 295 [acceptance of installment payments waived “all breaches which had occurred at or prior to the time such payments were actually made”]; Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 727-728 [bank waived “right to demand strict compliance with the terms of the letter of credit” where, inter alia, bank had “sought and obtained . . . a waiver of ‘any discrepancies’”];Loughan v. Harger-Haldeman (1960) 184 Cal.App.2d 495, 500, 503 [seller waived right to repossession where he said “he would cancel the reposession order”]; Howard J.White, Inc. v. Varian Associates (1960) 178 Cal.App.2d 348, 351, 353 [provision requiring changes or extra work be in writing waived where parties had consistently disregarded that provision in the past].) Wells Fargo points to no similar conduct on the part of O&M.
Wells Fargo failed to carry its burden of establishing waiver by clear and convincing evidence. Because O&M did not waive the original 60-day January cure date, we need not address Wells Fargo’s assertion the trial court erred in ruling it “had no reasonable cause to believe O&M and/or Nexus had waived or extended the cure period beyond March 6, 2009.” And inasmuch as there was no waiver, Wells Fargo’s claim of factual tenability fails. As a result, we also need not discuss Wells Fargo’s argument the trial court’s order overruling O&M’s demurrer to the unjust enrichment/restitution cause of action in the SAC made the cause of action “legally tenable.”
Given the plain language of the subleases, the above authorities, and the admissions made by Wells Fargo, no reasonable attorney would have found the claim of unjust enrichment/restitution to be a tenable theory under the facts known at the time the underlying action was filed. (Nunez, supra, 241 Cal.App.4th at p. 875.) Wells Fargo received the exchange it expected under the plain terms of the subleases. (Durell, supra, 183 Cal.App.4th at p. 1371.)
II. Malice
“‘The “malice” element . . . relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.’ [Citations.] Malice ‘may range anywhere from open hostility to indifference. [Citations.]”’ (Soukup, supra, 39 Cal.4th at p. 292.)“‘Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225.) “Malice may be inferred from circumstantial evidence, such as the defendants’ lack of probable cause, supplemented with proof that the prior case was instituted largely for an improper purpose. [Citation.] This additional proof may consist of evidence that the prior case was knowingly brought without probable cause or was brought to force a settlement unrelated to its merits.” (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1114.)
In determining whether malice exists, we keep in mind that in reviewing an anti-SLAPP motion, we must accept as true the evidence favorable to the plaintiff and that a “‘plaintiff needs to show only a case of “minimal merit.” [Citations].’” (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 348.) Further, a reviewing court may consider not only facts supported by direct evidence, but also facts reasonably inferable from the evidence. ( West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 822.) We draw all reasonable inferences from the evidence in favor of the plaintiff. (Tushscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003)
106 Cal.App.4th 1219, 1238-1239; Nagel v. Twin Laboratories, Inc. (2003)
109 Cal.App.4th 39, 52.)
Here, O&M has “cite[d] evidence of attitudes ranging from ‘open hostility to indifference’ [citation] that satisfies the requirement of a showing of minimal merit to [its] malicious prosecution claim so as to defeat defendants’ motions.” (Soukup, supra, 39 Cal.4th at p. 296.) We begin with the materially different allegations made between the original and subsequent complaints. The original complaint alleged Wells Fargo sent the three cure checks on March 5, 2009, and O&M expressly agreed to waive the 60-day deadline plus promised to accept payment if the checks were sent before March 6, 2009. The FAC admitted the cure checks, dated March 4 and 5, 2009, were not sent to O&M until March 11, 2009. The trial court noted this change regarding the date of “the alleged tender of cure payment” in ruling on O&M’s demurrer to the FAC. The SAC then took out the reference to March 11, 2009, merely stating vaguely that cure checks dated March 4 and 5 were sent to O&M without acknowledging the prior allegation they were sent “in reliance” on the promise that the cure amount was good through March 6, 2009.
In our view, these changes are more than just “normal fine-tuning of the factual allegations of the complaint,” as Wells Fargo contends. Rather, it is reasonably inferable Wells Fargo omitted significant facts in different pleadings to do an end run around an action it knowingly brought without probable cause. This impression is bolstered by the fact that three years before the lawsuit was filed, Wells Fargo’s outside counsel opined in an e-mail that O&M had the right to terminate the subleases if proper notices of the defaults were given and Wells Fargo failed to cure the defaults within 60 days, both of which undisputedly occurred. By nonetheless proceeding with the underlying lawsuit, Wells Fargo acted with an attitude of indifference towards O&M’s rights under the subleases and the existing facts.
The evidence also supports an inference Wells Fargo filed the underlying lawsuit to pressure O&M to settle the matter of the new subleases. After negotiations for new subleases went sour, Wells Fargo, through Nabb, sent an e-mail in November 2009 to Uptown. Nabb agreed that an attached e-mail, if sent to O&M, was “fairly aggressive and at this point will likely send them over the edge. However I’m feeling like we can’t reason with them regardless. Reflecting on last week, I’m positive the only reason Matt [Kaufman] wanted to meet was thinking that [Wells Fargo] would pay his $50K ransom fee. I’m starting to feel like they won’t negotiate the $50K fee, hence our only choice is either pay it or get aggressive with them.” Inasmuch as Wells Fargo did not pay the “ransom,” it is reasonable to infer it “g[o]t aggressive” by bringing the underlying lawsuit.
Wells Fargo argues that Nabb’s e-mail does not constitute evidence of malice because the word “‘ransom’” is colorful but does not show an improper purpose. But this focus on the meaning of the e-mail requires a factual determination that we cannot undertake within the limited scope of our review.
The e-mail further implies an attitude of open hostility in that Wells Fargo wanted to “get aggressive” and send O&M “over the edge.”This inference is buttressed by the fact it recorded lis pendens,not when it filed the underlying action or in the ensuing 18 months, but only after O&M filed its summary judgment and solely against the two homes owned by Kaufman, a senior officer of Nexus and the secretary for O&M whose identity was discovered during depositions.
O&Mclaims the lis pendens against Kaufman’s homes remained until almost a year after the court granted summary judgment in O&M’s favor, and after Wells Fargo had abandoned its appeal of the judgment. During oral argument, however, Wells Fargo and Pite asserted they had attempted to withdraw the lis pendens a few months after they filed their notices of appeals, and a month before they abandoned them, but that O&M’s counsel requested new withdrawals be filed to address a typographical error regarding the recordation dates. Thus, although the timing of the initial filing of the lis pendens remains suspect, we decline to factor in the date when the lis pendens were actually withdrawn.
O&M also cites its counsel’s October 17, 2012, meet and confer letter,addressing Wells Fargo’s request for an extension of time to produce documents supporting the allegations of the SAC and its refusal to produce its PMK for deposition. We need not consider the letter. The trial court did not rely on it in denying Wells Fargo’s anti-SLAPP motion, and we conclude thateven without the letter, the evidence presented is sufficient to support an inference of malice. O&Mmade the requisite demonstration of probability of success on the merits, and Wells Fargo did not defeat that showing as a matter of law. The trial court correctly denied Wells Fargo’s anti-SLAPP motion on this record.

DISPOSITION
The order denying appellant’s anti-SLAPP motion is affirmed. Respondents shall recover their costs on appeal.




O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.


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[1] Code of Civil Procedure section 425.16 (section 425.16) authorizes a special motion to strike a strategic lawsuit against public participation (SLAPP), and is referred to as the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85,
fn. 1.)

[2] Wells Fargo’s attorneys, Aldridge Pite, LLP, successor by merger to Pite Duncan, LLP and Diane Elizabeth Bond (collectively Pite), have filed a separate appeal (G052842) from the denial of their separate special motion to strike. The two appeals were not consolidated.