Styles v. Schwab

Filed 3/1/07 Styles v. Schwab CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed in part and reversed in part.

This litigation, representing the latest chapter in a failed marriage, was filed by Shawn Styles against Margaret Schwab (Styles's former wife) and Schwab's parents (Paul and Shirley Schwab, together Parents) alleging Schwab and Parents had initiated various legal proceedings against Styles to persecute and harass him after the marriage ended. Schwab and Parents moved to strike the complaint pursuant to Code of Civil Procedure section 425.16,^[1]commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The trial court denied the motion as to Styles's claims against Schwab, but granted the motion as to Styles's claims against Parents. Schwab appeals the former ruling, and Styles cross-appeals the latter ruling.^[2]

I

FACTUAL BACKGROUND

A. The Marriage

Styles met Schwab in 1995. They began dating and married in early January 2000. Before they married, Schwab warned Styles that if she ever caught him being unfaithful to her, she would "bury [him]."

Their marriage was short-lived and abruptly ended when Styles returned from a European business trip. He had arranged for Schwab to pick him up at the airport when he returned on April 6, 2000. However, while he was in Europe, Schwab called Styles's brother and sister-in-law several times and accused Styles of infidelity. The day before he returned, Schwab obtained a domestic violence restraining order (the TRO) that required Styles to stay 100 yards from her and her residence. Although they had married, Schwab and Styles continued to live in separate abodes. Schwab lived in an apartment in La Jolla. Styles lived in one unit of a multi-unit property (the Nautilus Property) purchased by Styles, Schwab and Parents as cotenants. Schwab had asked that the TRO include a provision granting her the exclusive use and possession of the Nautilus Property, but the court declined that request. Styles was served with the TRO when he deplaned from Europe.

B. The Criminal Proceedings

Styles asserted that Schwab "set him up" by arranging encounters that placed him in violation of the TRO and then reporting these violations to police to prompt criminal proceedings. For example, the day after Styles was served with the TRO, Schwab (accompanied by a security guard) went to the Nautilus Property and waited in the yard. When Styles arrived at his Nautilus Property home, she reported this action to police as a violation of the TRO, causing Styles to be arrested. This violation resulted in a criminal charge against him.

A second criminal charge against Styles resulted when he scheduled a visit to the offices of attorney Sickler (Schwab's divorce attorney) to deliver correspondence and a videotape to Sickler.^[3] When he drove into the parking lot of Sickler's office for the appointment, Styles observed Schwab (accompanied by an off-duty San Diego police officer) in the parking lot. Styles immediately drove away. Styles was arrested by police that day and released after being questioned. However, Schwab reported this incident to prosecutors as a violation of the TRO, and this incident became a count in the criminal prosecution of Styles.

The above criminal charges, along with four other counts derived from Schwab's reports of abuse by Styles,^[4]were tried to a jury. The jury, after a short deliberation, acquitted Styles of all charges.

C. Other Uses of the TRO

Styles identified other occasions on which Schwab purposefully arranged encounters with Styles that placed him within the proscribed stay-away zone, and then reported the encounters to police, which led police to interview Styles. Schwab also used the TRO to interfere with Styles's ability to perform his job.^[5]

D. The Civil Lawsuits

Two civil lawsuits involving the Nautilus Property were filed by Schwab and Parents against Styles, which gave rise to Styles's current complaint alleging malicious prosecution of civil proceedings.

The Purchase and Renovation of the Nautilus Property

In 1998 Styles entered into a contract to purchase the Nautilus Property. Thereafter, Schwab asked if she and Parents could participate in the purchase, and Styles agreed. The purchase price for the property was approximately $516,000. Within months of the closing, Styles, Schwab and Parents received substantially higher offers for the Nautilus Property.

The Nautilus Property contained four separate units, and Styles told Schwab he was concerned whether all four units had been legally constructed with proper permits. Styles investigated and learned at least one unit was probably not legal because it had been constructed without a permit, and he relayed that information to Schwab before escrow closed. The real estate transfer disclosure form, signed by Schwab and Parents, stated there were "[r]oom additions, structural modifications, or other alterations or repairs made without necessary permits" but that "all non-code modifications had been made prior to [sellers'] purchase."

After purchasing the Nautilus Property, Styles and his brother (Gregg Styles, a licensed contractor) did extensive renovation work. The work included refinishing the driveway, installing a new sink, relandscaping, reroofing, replacing old plumbing and electrical lines with new lines, and installing a new railing. Styles funded 99 percent of the renovations with his separate money.

The Settlement

In February 2002 Styles, Schwab, Parents and Gregg Styles entered into a settlement agreement partially resolving the disputes Schwab and Parents had with Styles and Gregg Styles involving two properties, including the Nautilus Property. In relevant part, Schwab released her claims against Gregg Styles for negligence involving the Nautilus Property except insofar as he had insurance for such claims, but preserved her other claims involving the Nautilus Property. Parents released all of their claims involving the Nautilus Property (except insofar as Gregg Styles had insurance covering the negligence claims) and gave a covenant not to sue for any claims arising out of their interest in the Nautilus Property.

The Civil Suits

In May 2002 Schwab filed two civil actions involving the Nautilus Property. The first action (the negligence complaint), filed in propria persona, alleged a negligence claim against Gregg Styles and named Styles and Parents as nominal defendants under section 382. Sickler assisted in drafting the complaint but did not represent Schwab in pursuing the action. Although Sickler advised Schwab it was necessary to file the action to avoid potential statute of limitations problems, she was not involved in the decision-making process on whether to assert affirmative claims against Styles for negligence in the remodeling of the Nautilus Property.

The second action (the fraud complaint), also filed by Schwab in propria persona, alleged claims against the sellers of the Nautilus Property, as well as the real estate agents for both the sellers and the buyers, alleging claims for breach of contract and of fiduciary duty, and for intentional and negligent misrepresentation. Her suit alleged those defendants knew or should have known the Nautilus Property was zoned for only two units and the other two units had been constructed without permits. The fraud complaint again named Styles and Parents as nominal defendants under section 382.

By June 2002 attorney Swingley had undertaken to represent Schwab and Parents in both actions, and the complaints were amended to reflect that Parents consented to join the actions as plaintiffs. The negligence complaint was amended to include claims seeking to recover damages from Styles based on his remodeling activity. Additionally, Schwab and Parents apparently pursued a recovery from Styles based on the allegations of the fraud complaint.^[6]

In November 2002 Styles's attorney wrote to Swingley asserting the February 2002 settlement agreement and mutual release barred the fraud and negligence actions as against Styles for claims involving the Nautilus Property. Styles offered to waive costs and attorneys fees against them if they dismissed him from the actions with prejudice. Schwab and Parents ignored the offer, and in March 2003 Styles moved for and obtained summary judgment in both actions as against Parents based on the settlement agreement and mutual release. However, the court denied Styles's motion for summary judgment as to Schwab's claims.

The two cases were scheduled for trial call on May 2, 2003. However, Schwab filed a voluntary dismissal without prejudice of the fraud action on May 5, 2003. Schwab apparently also abandoned the negligence action and the court ordered that action dismissed.

II

THE PRESENT ACTION

Styles filed the present action against Schwab and Parents, pleading causes of action labeled abuse of process, intentional infliction of emotional distress (IIED) and malicious prosecution premised on the above-described facts. Schwab and Parents moved to strike the complaint under the anti-SLAPP statute, asserting the complaint arose out of activity within the ambit of the anti-SLAPP statute, thereby shifting to Styles the burden to demonstrate probable success on the merits of the pleaded claims. They argued that because Styles could not meet that burden, the complaint should be stricken.

Styles conceded that, insofar as his complaint for malicious prosecution was premised on the civil lawsuits, Schwab had prima facie shown his complaint was subject to the anti-SLAPP statute because the challenged acts were taken in furtherance of Schwab and Parents' constitutional right to petition, which shifted the burden to Styles to demonstrate it was reasonably probable he would prevail on the merits at trial. However, he argued the motion should be denied because he had evidence that, if credited, would show probable success on the merits. He also asserted that, although Schwab and Parents argued the anti-SLAPP motion should be granted because there was no "favorable termination" of the underlying actions (because Schwab declared that her subjective motivation for dismissing the action involved reasons unrelated to the merits of her claim) and because they had probable cause to bring and maintain the actions (because they relied in good faith on the advice of counsel that they had viable claims against Styles), neither argument was supported by undisputed competent evidence.

With regard to the abuse of process and IIED claims, Styles argued there was evidence showing Schwab had falsely accused him of criminal conduct to obtain the TRO and subject him to criminal proceedings, and thereafter manipulated the TRO to arrange violations leading to additional criminal charges; she also used the TRO as a weapon to interfere with his livelihood and to attempt to have additional criminal charges brought against him. Styles asserted Schwab's conduct constituted willful acts in the improper use of the TRO, and these acts were pursued for the ulterior motive of harassing Styles in retribution for his alleged infidelity. Styles argued these two elements sufficed to show probable success on the abuse of process and IIED claims.

The trial court recognized Schwab's and Parents' "advice of counsel" argument relating to probable cause to bring the underlying civil actions required an evaluation of whether all relevant facts had been disclosed to the attorney, and this issue required that Styles have the opportunity to conduct limited discovery from attorneys Sickler and Swingley before ruling on the anti-SLAPP motions. Accordingly, the court deferred ruling on the anti-SLAPP motions and gave Styles leave to depose Sickler and Swingley, and granted both sides leave to file additional briefing on the probable cause element raised by the anti-SLAPP motions.

After deposing the attorneys, Styles's supplemental opposition to the anti-SLAPP motions asserted there was evidence that, if credited, would negate the "advice of counsel" defense on the fraud claims asserted by Schwab and Parents.^[7] Styles also argued that, insofar as the negligence complaint by Schwab and Parents asserted wrongdoing by Styles in connection with the renovations, there was some evidence Schwab and Parents had not disclosed all of the relevant facts to their attorneys.^[8]

Schwab's and Parents' supplemental replies in support of their anti-SLAPP motions asserted the attorneys testified in deposition that they believed the lawsuits were meritorious, and Schwab and Parents had relied in good faith on that advice to file and pursue the lawsuits, and therefore because they had probable cause to bring the underlying civil actions, Styles could not show reasonable probability of success on the merits of his claims.

The trial court granted Parents' anti-SLAPP motion, but denied Schwab's anti-SLAPP motion. The court concluded there was no evidence Parents bore actual malice toward Styles, or that they initiated any lawsuit against him or occupied any role beyond nominal plaintiffs in the actions.

However, the court held there was evidence supporting Styles's claims against Schwab. The court, after finding evidence to support each of the three elements necessary to a malicious prosecution claim,^[9]rejected Schwab's claim that the advice of counsel established a complete defense because she filed the complaints in propria persona and her declarations did not articulate what facts she relayed to counsel that formed the basis for their advice. The court also found the abuse of process claim was potentially meritorious because there was evidence she willfully used the TRO in a manner not proper in the regular course of the proceedings and had an ulterior purpose to inflict financial and emotional hardships on Styles.

On appeal, Schwab asserts the trial court erred in denying her anti-SLAPP motion, and Styles's cross-appeal asserts the trial court erred by granting Parents' anti-SLAPP motion.

III

LEGAL STANDARDS

A. The Anti-SLAPP Law

The anti-SLAPP law provides, in relevant part, 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).) The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims brought to chill another's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. ( 425.16, subd. (a).)

The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing the defendant's challenged acts were taken in furtherance of constitutional rights of petition or free speech in connection with a public issue, as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)

If the defendant satisfies the first step, the burden shifts to the plaintiff to demonstrate there is a reasonable probability of prevailing on the merits at trial. ( 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds by Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358.) In making this assessment, the court must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate those defenses. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398-399.)

In considering whether a plaintiff has met the evidentiary burdens, the court must consider the pleadings and the evidence submitted by the parties. ( 425.16, subd. (b)(1), (2).) However, the court cannot weigh the evidence (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 537-538) but instead must simply determine whether the plaintiff's evidence would, if credited, be sufficient to meet the plaintiff's burden of proof. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 823-825 [standard for assessing evidence is analogous to standard applicable to motions for nonsuit or directed verdict].)

On appeal, we review de novo the trial court's ruling on the anti-SLAPP motion to strike. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339.)

B. The Gravamen of the Claim Controls Application of the Anti-SLAPP Law

The Supreme Court has recognized the anti-SLAPP statute should be broadly construed (Equilon, supra, 29 Cal.4th at p. 60, fn. 3) and that a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a "garden variety" tort claim when in fact the liability claim is predicated on protected speech or petition. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92.) Accordingly, we disregard Styles's labeling of the claim (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 522) and instead must "examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies" and whether the trial court correctly ruled on the anti-SLAPP motion. (Id. at pp. 519-522.)

C. Abuse of Process

A claim for abuse of process arises when a party (1) for ulterior reasons (2) misuses the court's process for a purpose other than the purpose for which the process was designed. (Brown v. Kennard (2001) 94 Cal.App.4th 40, 44.) However, the litigation privilege, which applies to bar all tort claims (other than for malicious prosecution) when the injury-producing conduct is within the ambit of Civil Code section 47, subdivision (b) (Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1200), delimits the scope of a claim for abuse of process by precluding the plaintiff from maintaining a claim seeking to recover for an injury that "resulted from an act that was communicative in its essential nature." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.) Among the types of conduct falling within the privilege are citizen's reports of criminal activity to police (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360-375 [report to police accusing person of criminal activity falls within section 47, subdivision (b) privilege even if knowingly false or malicious]), and that conduct is not actionable under the rubric of an abuse of process claim.

D. Malicious Prosecution

A claim for malicious prosecution, the sole civil claim available when the injury-producing conduct is within the ambit of Civil Code section 47, subdivision (b)'s privilege (Rubin v. Green, supra, 4 Cal.4th 1187), requires that the defendant initiated (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 318) or caused to be initiated (Sandoval v. Southern Cal. Enterprises, Inc. (1950) 98 Cal.App.2d 240, 248) legal proceedings against the plaintiff, the defendant acted without probable cause and with malice, and the proceedings terminated favorably for the plaintiff. (Slaney, at p. 318.)

The favorable termination element is satisfied when the underlying proceedings are terminated by a judgment on the merits in favor of the underlying defendant (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341-342) or by a verdict acquitting the underlying defendant of the criminal charges (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, 477, p. 703). However, even a voluntary dismissal of the action without prejudice may be sufficient to support the favorable termination element. In Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808, the court noted a dismissal resulting from a settlement generally does not constitute a favorable termination because such a dismissal " 'reflects ambiguously on the merits of the action as it results from the joint action of the parties, thus leaving open the question of defendant's guilt or innocence.' " (Quoting Minasian v. Sapse (1978) 80 Cal.App.3d 823, 827, fn. 4.) However, Fuentes contrasted a dismissal following settlement with other voluntary dismissals, explaining:

"On the other hand, a voluntary dismissal, even one without prejudice, may be a favorable termination which will support an action for malicious prosecution. [Citation.] 'In most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action; the same is true of a dismissal for failure to prosecute.' [Quoting Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335.] [] Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if it reflects the opinion of the court or the prosecuting party that the action would not succeed. [Citation.] If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact." (Fuentes v. Berry, supra, at p. 1808.)

The absence of the probable cause element is satisfied if the person who initiated the underlying action had no reasonable basis to believe the underlying action was arguably tenable. The inquiry involves both a factual and a legal question: the former examines what facts the initiating party knew or believed (either at the time the suit was initiated or subsequently discovered) to be the true facts, and the latter examines whether such facts gave rise to a legally tenable claim. (Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at 624; Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 497-498.) However, even if a court later decides the claim was not legally tenable, the defendant in a malicious prosecution action may defend against the allegation of the absence of probable cause by showing reliance in good faith on the advice of counsel that the claim was tenable. (5 Witkin, supra, Torts, 509, p. 753.) This defense requires proof the defendant made a full and truthful disclosure of the relevant facts to counsel (Swat-Fame, at p. 630), and "if the initiator . . . withholds from counsel facts he [or she] knew or should have known would defeat a cause of action otherwise appearing from the information supplied, that defense fails." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53-54.)

The malice element of a malicious prosecution action "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. [Citation.] It may range anywhere from open hostility to indifference." (Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th at p. 494.) Although the absence of probable cause does not automatically prove malice, it is evidence that may be considered along with other circumstantial evidence from which the trier of fact may draw the inference of malice. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)

IV

ANALYSIS OF SCHWAB'S APPEAL

A. The First and Second Causes of Action

The trial court concluded Schwab had prima facie demonstrated the anti-SLAPP statute applied because the pleaded conduct involved activity within its ambit. However, the court denied the anti-SLAPP motion as to Styles's first cause of action (labeled an IIED claim) and second cause of action (labeled an abuse of process claim) because there was evidence Schwab willfully misused the domestic court processes to trigger criminal proceedings against, and to inflict emotional distress on, Styles.

We agree with Schwab that a claim for either abuse of process or IIED would be barred by Civil Code section 47, subdivision (b)'s privilege, because the core conduct upon which those claims are premised are the reports to police and governmental agencies. However, we nevertheless affirm the order denying the anti-SLAPP motion (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981 [court affirms an order correct on any legal theory even if trial court's reasons were unsound]) because the core conduct forming the gravamen of the first and second causes of action supports an actionable claim for malicious prosecution (see Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at pp. 520-522 [where gravamen of claim was malicious prosecution, court ignores abuse of process labeling and evaluates anti-SLAPP motion as directed at claim for malicious prosecution]), and Styles provided evidence that, if credited, would support a judgment in Styles's favor on that claim. A claim for malicious prosecution of criminal proceedings arises when the defendant causes criminal proceedings to be initiated by his or her reports to police or other governmental authorities^[10](Sandoval v. Southern Calif. Enterprises, supra, 98 Cal.App.2d at p. 248), the proceedings are terminated favorably to the plaintiff by a verdict acquitting him or her of the criminal charges (5 Witkin, Summary of Cal. Law, supra, Torts, 477, p. 703), and the defendant did not have probable cause to initiate the criminal proceedings and acted with malice. (Id. at  480-481, pp. 705-707 and  485, pp. 709-710.)

Styles produced evidence in opposition to the anti-SLAPP motion that, if credited, would support a finding in his favor on each element of the malicious prosecution of criminal proceedings. Schwab accused Styles of criminal conduct in connection with her TRO that led to the initiation of criminal charges (and thereafter arranged encounters she reported to police as violations of the TRO that generated additional criminal charges) and Styles was acquitted of all of the charges, thereby satisfying the first two elements of a claim for malicious institution of criminal proceedings. The evidence would also support a finding that Schwab knew she had falsely charged Styles with criminal conduct (cf. Weber v. Leuschner (1966) 240 Cal.App.2d 829, 836 [jury could find defendant did not have probable cause to file criminal charge of issuing check with insufficient funds when evidence showed defendant knew payment had been stopped because of dispute over amount owed]) because (1) Schwab had warned Styles she would exact retribution if he was not faithful, (2) the criminal charges contained in her TRO proceedings followed closely her telephone calls to Styles's relatives accusing Styles of infidelity (with no mention of his alleged physical abuse), and (3) her willingness to generate encounters to create additional criminal charges (and her conduct of arranging to be accompanied by a security guard and an off-duty police officer to "witness" the offense). The facts support an inference Schwab was willing to manufacture evidence to support her vendetta against Styles. Finally, the evidence was sufficient to support a finding of malice. Accordingly, Styles produced evidence that, if credited, would support a finding in his favor on each of the elements necessary to support a claim for malicious institution of criminal proceedings.

Schwab's reply brief, citing Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, asserts Schwab's conduct in connection with prosecuting the TRO should be insulated from all tort liability, including a claim for malicious prosecution. Even assuming this matter is properly raised,^[11]Siam merely held that (for policy reasons) an unsuccessful application for a section 527.6 injunction should not give rise to a claim for malicious prosecution of a civil proceeding. (Id. at pp. 1572-1574.) Here, however, Schwab did more than merely apply unsuccessfully for a section 527.6 injunction: she obtained the injunction; her accusations led to criminal charges; and she manipulated the injunction to generate additional criminal charges and investigations. The policy considerations undergirding Siam's holding are absent here, and the injury that forms the gravamen of Styles's action is distinct from the claims asserted in Siam.

We conclude the trial court correctly denied Schwab's anti-SLAPP motion insofar as the gravamen of the first and second causes of action support a claim for malicious prosecution of criminal proceedings against Styles.

B. The Fourth Cause of Action

Styles's fourth cause of action asserted a claim against Schwab for malicious prosecution of civil proceedings based on the negligence and fraud complaints she filed against Styles. The trial court found Styles produced evidence that, if credited, would support a finding in his favor on each of the elements necessary to support this claim. Schwab asserts Styles did not produce evidence that, if credited, would support findings of either favorable termination or lack of probable cause, and therefore the trial court's order was erroneous.^[12]

Favorable Termination

The fraud action was terminated by Schwab's voluntary dismissal without prejudice, and the negligence action was ordered dismissed without prejudice after Schwab abandoned the action. "In most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action; the same is true of a dismissal for failure to prosecute." (Villa v. Cole, supra, 4 Cal.App.4th 1327, 1335.)

Schwab argues that a voluntarily dismissal, although ordinarily deemed a favorable termination, "may occasionally be attributable to other than a complainant's implicit concession as to the merits of the action." (Minasian v. Sapse, supra, 80 Cal.App.3d at p. 828.) Because a termination by voluntary dismissal or abandonment "reflects ambiguously on the merits of the action" (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 184-185, disapproved on other grounds by Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 882), and a termination that does not reflect on the underlying defendant's lack of liability is not a favorable termination (see, e.g., StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1399-1400), the favorable termination element in the context of a voluntary dismissal requires examination of the reasons for the dismissal and a decision on whether or not the termination was for reasons unrelated to the merits of defendants' liability. If the evidence creates "a conflict . . . as to the circumstances explaining the [dismissal], the trier of fact must exercise its traditional role in deciding the conflict." (Minasian, at p. 82.)

Our evaluation of the evidence on this issue requires that we consider the evidence most favorably to Styles, indulge every legitimate inference that may be drawn in his favor, and disregard all conflicting evidence. (Cf. Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 [standard of review for nonsuit].) Considered through this prism, a trier of fact could conclude the dismissal and abandonment reflected an implicit concession by Schwab that Styles would prevail on the merits at trial. First, Styles's evidence (if credited by the jury) showed Schwab knew the fraud claim was unmeritorious because (1) the allegations of concealment and nondisclosure would be shown false (because Styles had revealed the facts to Schwab before escrow closed, Parents investigated the Nautilus Property before closing, and the real estate disclosure statement revealed the facts or put Schwab and Parents on notice), and (2) the property was acquired at such a low price that Schwab and Parents suffered no damage from any nondisclosures by Styles.^[13] Second, her animus toward Styles and use of the legal system to harass him without cause was inferentially supported by her unsuccessful attempt to manipulate the criminal system against Styles, and the timing of the dismissal (waiting until the last second before dismissing without explanation) would permit a jury to infer that Schwab sought to squeeze the last ounce of flesh from Styles before dismissing her claim.^[14]

Schwab asserts the evidence showed her reasons for dismissing or abandoning the action were (1) her mother's ill health and (2) her attorney (Swingley) allegedly being unprepared for trial. She argues this evidence conclusively showed Styles could not demonstrate favorable termination because her subjective reasons for dismissing and abandoning the civil actions were unrelated to any "implicit concession" (Minasian v. Sapse, supra, 80 Cal.App.3d 823, 828) that Styles would likely prevail on the merits if the matter went to trial. However, a jury would not be required to accept the veracity of Schwab's proffered motivations for dismissing or abandoning the civil actions (cf. Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633-636 [jury need not credit unrebutted oral testimony where inferences from other evidence would support contrary conclusion]), and the evidence would permit a reasonable jury to conclude Schwab's explanations for dismissing were pretextual.^[15] As in Weaver v. Superior Court, supra, 95 Cal.App.3d 166, Schwab's proffered reasons for dismissing may raise factual issues for the jury as to favorable termination (Minasian v. Sapse, supra, 80 Cal.App.3d at p. 828), but they do not entitle to her to a determination that, as a matter of law, Styles's evidence is foreclosed from consideration on the issue of favorable termination. (Weaver, at pp. 185-186.)

Advice of Counsel

Schwab also asserts the evidence showed, as a matter of law, she was insulated from liability because she relied in good faith on the advice of her counsel in initiating and pursuing the fraud and negligence claims against Styles.^[16] This defense to the assertion of lack of probable cause requires a showing the defendant initiated the action in good faith reliance on the advice of counsel after making a full and truthful disclosure of the relevant facts to counsel (Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at p. 630), and the defense fails "if the initiator . . . withholds from counsel facts he [or she] knew or should have known would defeat a cause of action otherwise appearing from the information supplied" to counsel. (Bertero v. National General Corp., supra, 13 Cal.3d at pp. 53-54.) The trial court found Schwab had not established the defense of advice of counsel because (1) she filed the complaints in propria persona and (2) her declarations did not articulate what facts she relayed to her attorneys that formed the basis for their advice.

As a preliminary matter, the trial court's stated reason for denying Schwab's anti-SLAPP motion--that Schwab's showing did not contain "evidence . . . defeat[ing] [Styles'] case as a matter of law" (Traditional Cat Assn., Inc. v. Gilbreath, supra, 118 Cal.App.4th at p. 398)--is supported by the record. The burden is on the party asserting advice of counsel to show consultation with the attorney, disclosure of all the facts to the attorney, and actions in reliance on the attorney's advice (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383-1384). Schwab's conclusory assertion that she "disclosed everything [she] knew" does not satisfy her burden because it is silent on what facts she relayed to Sickler that generated the attorney's advice.

Moreover, even assuming Schwab's conclusory showing shifted the obligation to Styles to produce counter-evidence, Styles did provide evidence that (if credited) would permit a jury to conclude Schwab could not establish the advice of counsel defense. On the fraud complaint, if the jury credited Styles's testimony that he had investigated whether there were permitting problems and had disclosed the results of his investigation to Schwab before close of escrow, it could conclude Schwab could not assert the defense because she withheld relevant facts from her attorney. (Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at pp. 629-630.) Alternatively, if the jury credited Styles's testimony that Parents had conducted their own independent investigation of the Nautilus Property before closing escrow, it could infer Schwab and Parents had discovered the true facts but did not disclose this information to the attorneys, again negating the defense of good faith reliance on advice of counsel. Finally, the evidence of Schwab telling neither attorney the Nautilus Property had been purchased at a good price and was worth substantially more than its purchase price would permit a jury to infer any purported advice on the viability of a fraud claim was tainted by incomplete disclosures as to the absence of injury from the alleged nondisclosure.

We are similarly convinced Styles's evidence, if credited, would support a recovery for malicious prosecution of the negligence complaint because the advice of counsel defense is subject to similar infirmities. The negligence complaint, to the extent it was directed at Styles, alleged Styles installed an improperly sloped driveway, and Schwab was damaged by Styles's relandscaping of the property, installing a new railing that was not "up to Code," and replacing electrical wiring and plumbing in a substandard manner.^[17]Schwab did not tell the attorneys she knew the slope of the driveway remained unchanged from its original configuration or that she had consented to Styles's changes to the landscaping and was happy with the results. Moreover, she did not tell her attorney facts that would have undermined her claim that Styles's negligence caused her damage, i.e., 99 percent of the work was performed before they were married and Styles had paid for the work.

Conclusion

Styles concedes, and we agree, that if the jury rejected his evidence and credited Schwab's evidence,^[18]the jury could return a verdict in favor of Schwab on Styles's malicious prosecution claims. However, the purpose of an anti-SLAPP motion is not to resolve controverted factual issues but is instead to reveal whether the plaintiff possesses evidence raising factual issues for the jury to resolve. We conclude that evidence is present here, and therefore the trial court correctly denied Schwab's anti-SLAPP motion, to the extent it was directed at Styles's fourth cause of action, notwithstanding Schwab's evidence raising the defense of advice of counsel.

V

ANALYSIS OF STYLES'S APPEAL

The trial court granted Parents' anti-SLAPP motion to dismiss the third cause of action in Styles's complaint alleging malicious prosecution against them because it concluded (1) they were merely nominal plaintiffs in the fraud and negligence actions and (2) Styles lacked sufficient evidence that, if credited, would support the conclusion they acted with malice in maintaining the underlying action. Parents assert these grounds were a correct basis for granting the motion. Parents alternatively argue that, even if there was sufficient evidence of malice to present a jury question, the ruling may be nevertheless upheld because Styles lacked sufficient evidence raising factual issues over whether Parents' claims were supported by probable cause or whether Parents were entitled to judgment based on the advice of counsel defense.^[19]

A. The Stated Grounds Do Not Support the Ruling

The malice element of a malicious prosecution action examines the subjective intent or purpose of the defendant, and exists when there is actual ill will that "range[s] anywhere from open hostility to indifference." (Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th at p. 494.) Styles's evidence, if credited by the jury, would support a finding that Parents bore him actual ill will: they called Styles a liar to his face, and stated they never liked or trusted him; they were angry that he had "ruined their chances of having a grandchild" with Schwab; Mrs. Schwab called him evil and despicable and claimed he had ruined their retirement, and she stated she knew from the beginning he had induced Schwab to marry "below their class or social standing and that . . . this was going to [create] problem[s]." Mr. Schwab also may have assisted Schwab in trying to "set up" Styles to violate the TRO or endure added criminal charges,^[20]and Parents persisted in pursuing a lawsuit against Styles despite having signed a complete release several months earlier. This evidence, if credited, would support a finding of malice.^[21]

The other stated ground for the ruling--that Parents were nominal plaintiffs--is factually questionable and legally unsupported. Certainly, it appears Schwab initiated the action against Styles by filing the complaints in propria persona, and Parents' initial involvement was as nominal defendants because unwilling plaintiffs. However, Parents did not remain unwilling plaintiffs, but instead consented to maintain the action against Styles in their own names by joining as Schwab as plaintiffs in June 2002, and they thereafter litigated the action as coplaintiffs. (Cf. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131, fn. 11 [person who did not initiate action but later participated in prosecuting action may be liable].) Indeed, when Styles offered Parents the opportunity to extricate themselves from their "nominal" involvement, Parents declined the opportunity and forced Styles to seek and obtain summary judgment against them. Moreover, Schwab deemed their participation to be sufficiently significant that the detrimental impact of the litigation on Mrs. Schwab's health purportedly motivated Schwab to dismiss the action. Finally, Parents cite no legal authority holding "nominal" plaintiffs are insulated from malicious prosecution liability.

We conclude the grounds relied on by the trial court cannot support the order granting Parents' anti-SLAPP motion. However, because we must affirm the order if correct on any ground raised below (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 980-981), we examine Parents' other arguments to determine whether Styles produced evidence that, if credited, would support a judgment in his favor for malicious prosecution against Parents.

B. Advice of Counsel

Parents assert they relied in good faith on the advice of their counsel that (1) the claims asserted against Styles were tenable and (2) their otherwise tenable claims were not barred by the February 2002 release and covenant not to sue. We conclude Styles produced evidence below that, if credited, would permit a jury to find Parents did not fully and accurately disclose all of the facts to the attorneys, and therefore any advice they may have received on the tenability of their claims does not insulate them from a claim for malicious prosecution.^[22]

The burden is on the party asserting advice of counsel to show the party consulted the attorney, disclosed all the facts to the attorney, and acted in reliance on his or her advice (Palmer v. Zaklama, supra, 109 Cal.App.4th at pp. 1383-1384). Parents' conclusory assertion that they "represented all facts known to [us] in good faith to Mr. Swingley" does not satisfy their burden because it is silent on what facts they relayed to him that generated his advice that they had tenable claims for fraud or negligence against Styles. Moreover, even assuming this conclusory showing shifted the obligation to Styles to produce counter-evidence, Styles did provide evidence that (if credited) would permit a jury to conclude Parents could not rely on that defense. Regarding the fraud complaint, if the jury credited Styles's testimony that he had investigated whether there were permitting problems with the Nautilus Property and had disclosed the results of his investigation to Schwab before close of escrow, the jury could infer she conveyed this information to Parents and therefore Parents could not assert the defense because they withheld relevant facts from Swingley. (Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at 629-630.)

Alternatively, if the jury credited Styles's testimony that Parents had conducted their own independent investigation of the Nautilus Property before closing escrow, it could infer Parents had independently discovered the true facts but did not disclose to the attorneys that they were aware of the permitting problems, again negating the defense of good faith reliance on advice of counsel on whether their fraud claim (which requires proof of detrimental reliance) was tenable. Finally, the evidence that Parents did not tell the attorneys the Nautilus Property had been purchased at a good price and was worth substantially more than its purchase price would permit a jury to infer any purported advice on the tenability of a fraud claim was tainted by incomplete disclosures as to the absence of injury from the alleged nondisclosure.

We are similarly convinced Styles's evidence, if credited, would support a recovery for malicious prosecution of the negligence complaint because the advice of counsel defense is subject to similar infirmities. The negligence complaint, insofar as it was directed at Styles, alleged Parents were damaged by Styles's relandscaping of the Nautilus Property, and that they were further injured by his negligence in installing an improperly sloped driveway, and a new railing that was not "up to Code," and by replacing electrical wiring and plumbing in a substandard manner. Parents did not tell the attorneys the slope of the driveway remained in its original configuration or that they had consented to and been pleased with the relandscaping. The attorneys also were apparently unaware that Styles performed and paid for 99 percent of the work, thereby undermining Parents' claim that Styles's negligent actions caused them damage.

C. Conclusion

Our conclusion as to Parents' claims partially mirrors our conclusion involving Schwab's claims: if the jury rejects Styles's evidence and credits Parents' opposing evidence, the jury could conclude Parents possessed arguably tenable fraud and negligence claims. However, unlike Schwab's claims, this conclusion would not be dispositive of Styles's malicious prosecution claim against Parents, because the court and jury would then be required to confront the thorny questions of whether their claims were arguably tenable notwithstanding the release and, if not, whether Parents could nevertheless rely on the advice of counsel defense insofar as they were purportedly advised the release did not bar their claims. We expressly withhold any suggestion as to the proper resolution of these latter issues because we are called on only to decide whether the trial court correctly granted Parents' anti-SLAPP motion. Because we have concluded Styles produced evidence that, if credited, would support a finding in his favor of each element of his claim against Parents, even without consideration of the issues presented by the release, we must reverse the trial court's order granting Parents' anti-SLAPP motion.

DISPOSITION

The order denying Schwab's anti-SLAPP motion is affirmed. The order granting Parents' anti-SLAPP motion is reversed and the matter is remanded with directions to deny Parents' anti-SLAPP motion. Styles is entitled to costs on appeal.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

^[1] All statutory references are to the Code of Civil Procedure unless otherwise specified.

^[2] The trial court also awarded attorney fees to Parents as required by the anti-SLAPP statute, and the propriety of that award is the subject of a companion appeal.

^[3] The parties had agreed to an arrangement that enabled Styles to communicate with Schwab. Under the arrangement, Styles delivered correspondence to Schwab by depositing it with Sickler, who would then forward the materials to Schwab.

^[4] Schwab's TRO averred Styles had threatened her with a weapon, and committed battery on her, during incidents occurring on March 15 and March 22, 2000. These incidents were apparently reported to police and formed the basis for four criminal counts against Styles.

^[5] Styles's job as a news reporter included reporting on charity events. He had been invited to charity events (both as a celebrity participant and to report on the event) for a charity with which he had long been associated, but Schwab prevented him from attending those events by stating she intended to attend the event and he would be in violation of the TRO if he attended the event.

^[6] The parties on appeal do not identify in the record that the fraud complaint was amended to pursue claims against Styles for nondisclosure of the zoning and permitting problems afflicting the Nautilus Property. However, because both parties have briefed the issue on the assumption such an action was pursued, and the record contains hints suggesting this action was pursued, we evaluate the parties' contentions based on that assumption.

^[7] Styles noted the advice-of-counsel defense requires a showing that the client made a full and truthful disclosure of all relevant facts to his or her attorney. (See, e.g., Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 629-630, disapproved on other grounds by Zamos v. Stroud (2004) 32 Cal.4th 958, 973.) On the fraud claims concerning Schwab's and Parents' ignorance of the permitting problems, Styles noted there was evidence showing (1) the seller's disclosure statement alerted the buyers to potential unpermitted additions, (2) Styles had investigated whether there were permitting problems and had disclosed the results of his investigation to Schwab before close of escrow, and (3) Parents had conducted their own independent investigation of the property before closing escrow. However, Schwab and Parents did not reveal the latter two facts to either Sickler or Swingley. Additionally, Schwab and Parents apparently did not inform either Sickler or Swingley that they knew the property had been purchased at a good price and they had received substantially higher offers for the property shortly after closing escrow, which could negate the damages element essential to a viable fraud cause of action. Moreover, Swingley's decision to pursue fraud claims on behalf of Parents as against Styles was apparently made without knowing Parents had signed a settlement agreement and mutual release waiving all claims in connection with the Nautilus Property, and Swingley suggested he may have first learned of the settlement agreement from Styles's lawyer's November 20, 2002 letter demanding Schwab and Parents dismiss the actions against Styles.

^[8] The negligence complaint asserted they were damaged by Styles's negligence in that he helped install an improperly sloped driveway, installed a new railing not "up to Code," replaced electrical wiring and plumbing in a substandard manner, and for losses c