Depper v. Burnett Appellate Decision

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California Rules of Court, rule 8.1115, restrictscitation of unpublished opinions in Californiacourts.

Court of Appeal, First District, Division 1, Califor-nia.

Martha R. DEPPER, Plaintiff and Respondent,v.

Corey K. BURNETT et al., Defendants and Appel-lants.

No. A114147.(Contra Costa County Super. Ct. No. C05-02481).

Jan. 11, 2007.

Stephen Robert Gianelli, San Francisco, CA, forPlaintiff and Respondent.

Jerry Ray Hauser, Phillips, Greenberg & Hauser,San Francisco, CA, John Diaz Coker, Pittsburg,CA, for Defendants and Appellants.

MARCHIANO, P.J.*1 The defendants in this malicious prosecu-

tion action filed a motion to strike plaintiff's com-plaint under the anti-SLAPP statute. (Code Civ.Proc., 425.16.) The trial court denied the motion.Defendants contend the denial was error. We dis-agree and affirm.

I. INTRODUCTIONWe emphasize that the facts set forth below are

found in the record in the form of declarations andother documents. The facts have not been adjudic-ated by a court, at least not in the record before us.We also emphasize that our sole purpose in thiscase is to decide whether the court erred in denyingthe motion to strike-we do not resolve the merits ofthe disputes between the parties in the maliciousprosecution action. As we discuss below, the

primary question is whether plaintiff made a primafacie showing of facts sufficient to sustain a favor-able judgment if the facts she submitted are cred-ited-and the trial court was bound to accept as truethe evidence favorable to plaintiff. We therefore fo-cus on plaintiff's facts from the standpoint of test-ing them for a prima facie case, without attachingan appellate imprimatur to facts that may remain indispute at trial.

Defendants are a law firm, its two named lawpartners, and two of their clients. Defendants Coryand Alba Burnett hired defendants Christopher Lu-cas and his law firm, defendant Lucas & Goforth, toprosecute an action against plaintiff Martha R. Dep-per that arose from the Burnetts' attempt to pur-chase a home owned by plaintiff.FN1

FN1. The fifth defendant in the maliciousprosecution action is Lucas's law partner,Michael Goforth.

We call this prior action, Burnett v. Depper,the Property Action.FN2 The complaint in that casesought specific performance of a written contract,purportedly signed by plaintiff Martha R. Depper,to sell the property to the Burnetts. The complaintalso sought damages for breach of contract andfraud. Soon after the complaint in the Property Ac-tion was filed, attorney Lucas learned, and sub-sequently admitted, that Martha R. Depper's signa-ture on the contract of sale was forged. After ap-proximately five months, Lucas voluntarily dis-missed the complaint in the Property Action.

FN2. The full cite for the Property Actionis Burnett v. Depper (Super.Ct. ContraCosta County, 2005, No. C05-1372).

Plaintiff Martha R. Depper's present maliciousprosecution action is based on the theory that de-fendants-the Burnetts, attorney Lucas, his partnerGoforth, and their firm Lucas and Goforth-main-tained the Property Action for several months

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

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

without probable cause and with malice, after theylearned the signature on the sales contract was nothers.

II. FACTSAttorney Lucas filed the complaint in the Prop-

erty Action on behalf of the Burnetts on June 30,2005. The complaint names as defendants MarthaR. Depper, who is described in the record as a90-year-old widow, and her son Stuart Depper.FN3

The complaint alleges that the Burnetts entered intoa written contract with Martha for the purchase of ahome at 3130 Diablo View Road in Lafayette. Thesales contract is attached to the complaint as Exhib-it A, and we will refer to it as such. Exhibit A bearsthe purported signature of Martha, with her namehandprinted underneath.

FN3. For the most part, we henceforthrefer to Martha R. Depper and Stuart Dep-per by their first names. We intend no dis-respect to the parties.

*2 Lucas's complaint alleged that the Burnettsand Martha executed the sales contract by andthrough her son and agent Stuart, and that Stuartwas at all times Martha's authorized agent and at-torney in fact and had Martha's authority to enterinto the sales transaction. The complaint further al-leged that the Burnetts had performed all conditionsprecedent on the contract, and had sold their exist-ing home in reliance on the contract, but thatMartha and Stuart failed to perform on the contractand to convey clear title.

The complaint set forth three causes of action:(1) specific performance of the contract known asExhibit A; (2) breach of contract; and (3) fraud,primarily based on alleged false representations byStuart while allegedly acting as Martha's agent.When he filed the complaint, Lucas also recorded alis pendens on the Lafayette property.

According to his declaration in opposition todefendants' anti-SLAPP motion to strike, StephenGianelli, Martha's attorney, reviewed the complaint

on or about July 18, 2005.FN4 Gianelli noticed thatMartha's purported signature on Exhibit A did notcomport with my recollection of her classic crispsignature that I had seen on two prior unrelatedagreements.... FN5 On July 20, Gianelli spoke toMartha by phone; Martha confirmed my observa-tion that her purported signature on Exhibit A to theComplaint was not her own, and does not resembleher own....

FN4. Subsequent dates are in 2005 unlessotherwise indicated.

FN5. At the time he reviewed the com-plaint on or about July 18, Gianelli repres-ented Stuart. On July 20, Martha retainedGianelli.

In her own declaration in opposition to the mo-tion to strike, Martha states that [t]he purportedsignature of Martha Depper appearing on ...[Exhibit A] is not mine. I did not sign Exhibit A.None of the handwriting, initials or printing on Ex-hibit A ... is mine. Martha denied handprinting hername, and noted that instead of printing Deppersomeone had printed Deppe'. Martha did statethat she signed a written acceptance of an offer tosell the property to Alba Burnett, but that accept-ance was never delivered to the Burnetts and in anyevent expired after 30 days. She was adamant thatshe did not sign Exhibit A.FN6

FN6. It is not necessary to now relate thedisputed details over purported discussionsinvolving Stuart and the Burnetts regardingthe possible sale of Martha's property.Martha did state in her declaration that shenever discussed any sale with the Burnetts,and she did not authorize Stuart to be heragent with regard to any contracts in-volving the property. While she may havesigned a contract that was never given tothe Burnetts, it is undisputed that she didnot sign Exhibit A, the contract on whichthe Property Action is based and of whichthe Burnetts sought specific performance.



According to the deposition testimony of AmyJimerson, the Burnetts' loan agent, Jimerson alteredExhibit A with Alba Burnett's knowledge and con-sent by handwriting contract terms into preprintedblank spaces-after the purported signature ofMartha was affixed to the document.

We turn to Gianelli's declaration in oppositionto the motion to strike, and its supporting docu-mentation, for the following chronology of events.Again, we note that we state facts that simply showa prima facie case; we do not state them as if theyhad been adjudicated and are undisputed.

On July 20, after speaking with Martha on thephone about her purported signature on Exhibit Aand being retained by Martha, Gianelli wrote Lucasand informed him that Martha advises that the sig-nature affixed to ... Exhibit A ... is not hers. Gian-elli also advised Lucas that regardless of the valid-ity of the signature, the offer contained in Exhibit Ahad expired.

*3 On July 26, Martha went to Gianelli's officeand provided exemplars of her signature and herprinting in Gianelli's presence. Gianelli comparedthe exemplars with the signature on Exhibit A andnoticed that the two signatures were so dissimilarthat no reasonable person could conclude that theywere made by the same person. FN7 He also no-ticed the misspelling of the printed Depper. Gian-elli immediately faxed Lucas a letter with copies ofthe exemplars attached, informing him that hisposition in this lawsuit is that Lucas's clients hadforged Martha's signature. Gianelli offered to havethe original Exhibit A-which was in Alba Burnett'spossession-analyzed by an expert. Lucas never re-sponded to this offer.

FN7. We have examined the signature ex-emplar and compared it to the signature onExhibit A. We agree with Gianelli's assess-ment.

On July 28, Gianelli and Lucas met for a siteinspection of the property. During their encounter

Lucas admitted the signature on Exhibit A was notMartha's. Lucas claimed that Stuart had signedMartha's name to Exhibit A, and that Lucas hadseveral witnesses to the signing, including Alba.Lucas accused Gianelli of knowing that it was Stu-art who signed Martha's name to Exhibit A. FN8

Gianelli returned to his office and faxed a letter toLucas. Gianelli wrote that while there was a disputeover who had forged Martha's name on Exhibit A,it was undisputed that the signature was notMartha's. Gianelli cited Civil Code section 3388and informed Lucas that he could not obtain specif-ic performance of a contract against a person whohad not signed it.

FN8. Gianelli declared that prior to hisjoint representation of Stuart and Martha inthe Property Action, he assured himselfthat neither Stuart nor Martha signedMartha's name to Exhibit A.

On August 1, Gianelli served Lucas withMartha's motion to expunge the lis pendens. In sup-port of the motion, Martha submitted a declarationdated August 1 reciting that she did not sign Exhib-it A. She also submitted a request that the courttake judicial notice of numerous examples of hersignature from existing legal documents, includingtwo grant deeds.

Lucas then sent Gianelli several threatening let-ters and e-mails, accusing him of ethical and crim-inal violations including legal malpractice, suborna-tion of perjury, and elder abuse (of Martha, presum-ably). On August 3, Lucas telephoned Gianelli andwas shouting and abusive over the phone. Lucasalso claimed that he would contact the AttorneyGeneral of the United States about alleged bank-ruptcy fraud committed by Martha, and that Lucaswould take Stuart down piece by piece. In Gian-elli's words, Lucas made it very clear in that con-versation that the only manner in which [the Prop-erty Action] would be resolved by settlement is if[Martha] transferred title of [the Lafayette property]to the Burnetts pursuant to Exhibit A....



On approximately September 1, Lucas e-mailedGianelli and told him the Burnetts were going tomove to compel arbitration pursuant to the terms ofExhibit A. Gianelli replied that Lucas was on no-tice that the purported signature of Martha Depper... [on] Exhibit A does not match, and is not evenclose to matching, Martha Depper's true signatureas it appears on the two grant deeds appended toher request for judicial notice ... which is all butconclusive proof that the putative arbitration agree-ment (Exhibit A to the Complaint) was neversigned by Martha. Gianelli also told Lucas that theBurnetts have no witness that can contradictMartha's statement in her August 1 declaration thatshe did not sign Exhibit A.

*4 On September 2, Lucas responded with ane-mail that accused Gianelli of forcing Lucas tomake all necessary motions. Lucas also wrote,You know it is vain to expect that all of yourthreats will cause me to abandon my client's [sic ]rights. Therefore, your letters strike me as pointlessand possibly even irrationally grandiose.

Also on September 2, Gianelli sent an e-mail todefendant Goforth, Lucas's law partner, asking himto compare the signatures. Goforth called Gianellithat same day. Gianelli told Goforth about theforged signature, and that he, Lucas, and their firmwere subject to liability for malicious prosecutionfor maintaining the Property Action. Goforth indic-ated that his firm was going to wait for the rulingon the motion to expunge the lis pendens before de-ciding whether to dismiss the Property Action. Gi-anelli memorialized the telephone discussion in aletter dated September 3.

On September 6, Gianelli deposed Alba Bur-nett, who testified that she did not see Martha signExhibit A. And, while Alba presumably had posses-sion of Exhibit A, Alba testified she had no docu-ment with a known signature of Martha in her pos-session. (Alba also made admissions seriously dam-aging to the Burnetts' claim that Stuart acted asMartha's agent.)

On October 13, Gianelli e-mailed Goforthabout Alba's admissions in her deposition. Gianellinoted the fraud cause of action was meritless be-cause Alba testified at her deposition that she andher husband never spoke to Martha about sellingthe property, or had a written communication fromher regarding any sale. Gianelli also noted, again,that it was undisputed that Martha did not sign Ex-hibit A. Gianelli informed Goforth that if one causeof action in the Property Action was without prob-able cause, and favorably terminated for Martha,she could sue for malicious prosecution.

On October 13, Lucas sent Gianelli an abusivee-mail in which he accused Gianelli of havingMartha sign a false declaration. Lucas also accusedGianelli of put[ting] that poor old lady in a situ-ation of embarrassment and loss and anguish whenyou really should have been honest. Lucas advisedGianelli to speak to Martha about settlement, tokeep her out of this meat grinder-presumably areference to the litigation.

On October 14, Gianelli faxed Goforth a letterquestioning the decision to await the ruling on themotion to expunge before deciding whether to dis-miss. Gianelli noted that Exhibit A was obviouslyforged, and again noted that only one favorablyterminated cause of action filed or maintainedwithout probable cause would give rise to liabilityfor malicious prosecution. Gianelli also noted thatMartha was under stress, was not sleeping well as aresult of the lawsuit, and had developed high bloodpressure.

On October 15, Gianelli e-mailed Goforth ex-cerpts from Zamos v. Stroud (2004) 32 Cal.4th 958(Zamos ), which holds that even if an action wasfiled with probable cause, maintaining that actiononce it was found to lack probable cause gives riseto malicious prosecution liability.

*5 On October 17, Gianelli e-mailed to Lucasand Goforth a demand that you immediately dis-miss the Burnetts' objectively untenable lawsuitagainst Martha R. Depper....



On October 17 and 18, the lawyers for the re-spective parties exchanged further e-mails. Lucaswwrote that he planned to add further causes ofaction for fraud against Martha, and apparently ac-cused Gianelli of submitting perjured testimony tothe court on the motion to expunge, regarding Lu-cas's admission at the site visit that Exhibit A wasforged. Gianelli again referred his opponents toZamos.

On October 21, the court issued its tentativeruling granting Martha's motion to expunge the lispendens: [The Burnetts] have failed to meet theirburden of showing by a preponderance of the evid-ence the probable validity of the real property claim(CCP 405.32). [The Burnetts] have failed to showthat the signature on Ex[hibit] A to the Complaintis that of Martha Depper and thus CC 3388 is acomplete bar to their specific performance cause ofaction . (Emphasis added.) Lucas called Gianelliand told him he intended to appear and contest thetentative ruling.

On October 22, Gianelli wrote Lucas and Go-forth a lengthy letter, again characterizing the Prop-erty Action as untenable, again demanding dis-missal (especially now that the court had issued itstentative ruling against them), and noting their liab-ility for malicious prosecution.

At the October 24 hearing on the motion to ex-punge, Lucas admitted on the record, in open court,that Martha's purported signature on Exhibit A hadbeen forged.FN9 Gianelli announced he planned tomove for summary judgment. The court adopted itstentative ruling and granted the motion to expungefrom the bench.

FN9. The court told Lucas that the ExhibitA attached to his complaint is the one thatsomebody forged her signature on. Lucasreplied, I guess somebody did.

On October 25, Gianelli sent Lucas and Go-forth an e-mail demanding that they dismiss theProperty Action by October 26 or risk a lawsuit

against them, their firm, and the Burnetts for mali-cious prosecution. Lucas responded with an abusivee-mail threatening sanctions and claiming Gianellihad hired a former client to harass the Burnetts. OnOctober 28, Gianelli again wrote Lucas demandingdismissal and threatening a malicious prosecutionaction.

On November 4 and 10, during and after settle-ment discussions, Lucas and the Burnetts took theposition that they would only settle the PropertyAction if Martha waived her claim for maliciousprosecution. Lucas claimed he would maintain theaction against Martha absent such a waiver.

On November 11, Gianelli learned that Marthahad suffered a stress related medical event due toher worry and upset about being sued in the Prop-erty Action and had been rushed to obtain emer-gency medical treatment. Gianelli completed hispreparation of a motion for summary judgment.

On November 14, at 6:00 a.m., Gianelli faxed aletter to Lucas informing him that Gianelli wouldbe immediately filing a summary judgment motion,and then would file suit for malicious prosecution.At just after 8:00 a.m. that day, Gianelli filed themotion for summary judgment. The filing of themotion appeared on the superior court's website by10:00 a.m. At 11:51 a.m., Lucas filed a request fordismissal of the Property Action.

*6 On November 29, Gianelli filed the instantmalicious prosecution on Martha's behalf. The com-plaint alleged that from June 30 through November14, defendants initiated and maintained the Prop-erty Action without probable cause and withmalice, and that the voluntary dismissal on Novem-ber 14 constituted a favorable termination of theProperty Action. More specifically, the complaintalleges (1) that the Burnetts either forged the signa-ture on Exhibit A or the forgery was done with theirknowledge and consent; and (2) that from July 19until the dismissal on November 14, defendantswrongfully maintained the Property Action becausethey knew that Martha's purported signature on Ex-



hibit A was forged.

On January 13, 2006, Lucas, Goforth and theirlaw firm filed an anti-SLAPP motion to strike. TheBurnetts subsequently joined in the motion. The tri-al court denied the motion to strike, ruling thatMartha had presented facts sufficient to show aprima facie case.

III. DISCUSSIONA.

The anti-SLAPP statute provides that A causeof action against a person arising from any act ofthat person in furtherance of the person's right ofpetition or free speech under the United States orCalifornia Constitution in connection with a publicissue shall be subject to a special motion to strike,unless the court determines that the plaintiff has es-tablished that there is a probability that the plaintiffwill prevail on the claim. ( 425.16, subd. (b)(1);see Braun v. Chronicle Publishing Co. (1997) 52Cal.App.4th 1036, 1042-1043 (Braun ); LafayetteMorehouse, Inc. v. Chronicle Publishing Co. (1995)37 Cal.App.4th 855, 858-859 (Lafayette Morehouse).) FN10

FN10. SLAPP stands for StrategicLawsuit Against Public Participation. (Lafayette Morehouse, supra, 37Cal.App.4th at p. 858.)

Acts in furtherance of the right of petition orfree speech include: (1) any written or oral state-ment or writing made before a legislative, execut-ive, or judicial proceeding, or any other officialproceeding authorized by law; (2) any written or or-al statement or writing made in connection with anissue under consideration or review by a legislative,executive, or judicial body, or any other officialproceeding authorized by law; (3) any written or or-al statement or writing made in a place open to thepublic or a public forum in connection with an issueof public interest; [or] (4) ... any other conduct infurtherance of the exercise of the constitutionalright of petition or the constitutional right of freespeech in connection with a public issue or an issue

of public interest. ( 425.16, subd. (e); see Mannv. Quality Old Time Service, Inc. (2004) 120Cal.App.4th 90, 102.)

The statute posits ... a two-step process for de-termining whether an action is a SLAPP. ( Navelli-er v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier I).) This two-step process is also described as a two-pronged test.

First, the court decides whether the defendanthas made a threshold showing that the challengedcause of action [arises] from protected activity. (Navellier I, supra, 29 Cal.4th at p. 88; see EquilonEnterprises v. Consumer Cause, Inc. (2002) 29Cal.4th 53, 67 (Equilon ).)

*7 A defendant meets this burden by demon-strating that the act underlying the plaintiff's cause[of action] fits one of the categories spelled out insection 425.16, subdivision (e).... ( Braun, supra,52 Cal.App.4th at p. 1043.) And whether a cause ofaction aris[es] from protected activity, within thescope of section 425.16, subdivision (b)(1), meanssimply that the defendant's act underlying theplaintiff's cause of action must itself have been anact in furtherance of the right of petition or freespeech. ( City of Cotati v. Cashman (2002) 29Cal.4th 69, 78; see ComputerXpress, Inc. v. Jack-son (2001) 93 Cal.App.4th 993, 1001.)

If the trial court finds that the defendant hassatisfied the first prong of the test, and shown thecause of action arises from protected activity, thecourt turns to the second prong. The court mustthen determine whether the plaintiff has demon-strated a probability of prevailing on the claim. (Navellier I, supra, 29 Cal.4th at p. 88; see Equilon,supra, 29 Cal.4th at p. 67.)

This requires an evidentiary showing by theplaintiff, who must show not only that her com-plaint is legally sufficient, but is supported by aprima facie showing of facts sufficient to sustain ajudgment in her favor. (See Navellier I, supra, 29Cal.4th at pp. 88-89; Nagel v. Twin Laboratories,



Inc. (2003) 109 Cal.App.4th 39, 45 (Nagel ).)Stated another way, the plaintiff need only showher complaint is legally sufficient and supported bya prima facie showing of facts sufficient to supporta judgment in her favor if the evidence she has sub-mitted is credited. ( Navellier v. Sletten (2003) 106Cal.App.4th 763, 768 (Navellier II ).)

In ruling on a motion to strike, the trial courtdoes not weigh the evidence or determine questionsof credibility; instead the court accepts as true allof the evidence favorable to the plaintiff . ( Nagel,supra, 109 Cal.App.4th at pp. 45-46 (emphasis ad-ded); Navellier II, supra, 106 Cal.App.4th at p.768.) The trial court does consider the defendant'sevidence against the plaintiff, but only to determ-ine if it defeats the plaintiff's showing as a matter oflaw. ( Kashian v. Harriman (2002) 98 Cal.App.4th892, 906.)

When a trial court denies a motion to strike onthe ground that the plaintiff has established the re-quisite probability of success ... the trial court ne-cessarily concludes that the plaintiff has substanti-ated a legally tenable claim through a facially suffi-cient evidentiary showing and that the defendant'scontrary showing, if any, does not defeat theplaintiff's as a matter of law. ( Wilson v. Parker,Covert & Chidester (2002) 28 Cal.4th 811, 821,emphasis added.) Thus, plaintiff's burden as to thesecond prong of the anti-SLAPP test is akin to thatof a party opposing a motion for summary judg-ment. [Citation.] We determine de novo whetherthat burden has been met. ( Navellier II, supra,106 Cal.App.4th at p. 768.)

*8 Only a cause of action that satisfies bothprongs of the anti-SLAPP statute-i.e., that arisesfrom protected speech or petitioning and lacks evenminimal merit-is a SLAPP, subject to beingstricken under the statute. ( Navellier, supra, 29Cal.4th at p. 89.)

B.Defendants' action challenged by Martha's ma-

licious prosecution action, the filing and maintain-

ing of the Property Action, clearly satisfies the firstprong. Litigation involves the right to petition thegovernment for the redress of grievances, and thusfalls squarely within the protective scope of theanti-SLAPP statute. (See Navellier I, supra, 29Cal.4th at p. 90.)

The question before us is whether Martha mether burden under the second prong, i.e., whetherMartha has shown a probability of prevailing on hermalicious prosecution claim. The trial court cor-rectly concluded that Martha met that burden bypresenting a prima facie showing of facts sufficientto sustain a judgment in her favor if the evidenceshe has submitted is credited.

To establish a cause of action for the mali-cious prosecution of a civil proceeding, a plaintiffmust plead and prove that the prior action (1) wascommenced by or at the direction of the defendantand was pursued to a legal termination in [her],plaintiff's, favor [citations]; (2) was broughtwithout probable cause [citations]; and (3) was ini-tiated with malice [citations]. ( Bertero v. NationalGeneral Corp. (1974) 13 Cal.3d 43, 50 (Bertero );see Sheldon Appel Co. v. Albert & Oliker (1989) 47Cal.3d 863, 871-872 (Sheldon Appel ).)

Two legal principles are salient to this appeal.First, malicious prosecution includes continuing toprosecute a lawsuit discovered to lack probablecause ... ( Zamos, supra, 32 Cal.4th at p. 970.)Thus, as Martha argues on appeal, whether theProperty Action had probable cause when it wasinitiated is irrelevant. Martha contends the defend-ants are liable for malicious prosecution for main-taining the Property Action after they discovered itlacked probable cause.

Second, a lawsuit for malicious prosecutionmay lie when some, but not all-indeed, if only one-of the grounds for relief asserted in a lawsuit werebrought with malice and without probable cause. (Crowley v. Katleman (1994) 8 Cal.4th 666, 671,676-679, 695; Bertero, supra, 13 Cal.3d at pp.55-57.)



Since only one cause of action can support li-ability for malicious prosecution, we need only dis-cuss the Property Action's cause of action for spe-cific performance of the contract known as ExhibitA. Thus, we decide this narrower issue: whetherMartha shows a prima facie case that she will pre-vail because the defendants maintained the cause ofaction for specific performance without probablecause and with malice, and that cause of action wasterminated in Martha's favor.

1. Lack of Probable Cause. A cause of actionlacks probable cause if it was not legally tenablewhen viewed objectively. ( Zamos, supra, 32Cal.4th at p. 971; see Sheldon Appel, supra, 47Cal.3d at p. 878.) The test of objective tenability iswhether any reasonable attorney would havethought the cause of action was tenable. ( Zamos,supra, 32 Cal.4th at p. 971; Sheldon Appel, supra,47 Cal.3d at p. 886.)

*9 Martha has shown a prima facie case thatLucas continued to maintain the specific perform-ance cause of action without probable cause. On Ju-ly 20, Gianelli informed Lucas that the signature onExhibit A was not Martha's. On July 26, Gianellifaxed Lucas an exemplar of Martha's signature thatwas so different from the signature on Exhibit Athat a layperson would reasonably conclude thecontract signature was a forgery. There is evidencethat on July 28 Lucas admitted the signature wasnot Martha's. Martha executed a declaration to thateffect on August 1 in connection with her motion toexpunge the lis pendens. On September 2, Goforthwas made aware that the signature was forged.

On October 21, the trial court issued a tentativeruling that the Burnetts had not shown the signaturewas Martha's and thus could not maintain a cause ofaction for specific performance against Martha,who was a nonsignatory to the contract. (Civ.Code, 3388.) On October 24, Lucas admitted in opencourt that the signature was a forgery. Lucas con-tinued the action until November 14 before dismiss-ing it.

This evidence establishes that any reasonableattorney would have concluded (1) that Martha didnot sign Exhibit A and (2) could not be liable forspecific performance as a nonsignatory to the con-tract. Martha made a prima facie case that Lucas,Goforth and their law firm maintained the specificperformance cause of action without probablecause. Martha also made a prima facie case of theBurnetts' knowledge that the specific performancecause of action lacked probable cause. Marthashowed that Alba Burnett did not see Martha signExhibit A. Martha also showed that Alba, in es-sence, could not authenticate the signature on thatdocument as Martha's because Alba denied havinga document signed by Martha in her possession,even though Alba possessed the original of ExhibitA.

Lucas maintains that he was permitted time toinvestigate the claim of the forged signature, andthus did not maintain the Property Action withoutprobable cause. But this claim does not detract fromMartha's showing of a prima facie case that Lucaswas repeatedly informed, and in fact twice admit-ted, that the signature was forged-yet he maintainedthe suit for months.

Lucas also claims that on August 8 he obtaineda copy of Martha's signature on a declaration filedin a federal action, and that signature appeared tome to be the same as the signature on Exhibit A.The signature to which Lucas refers is markedlydissimilar to the signature on Exhibit A, and in factclosely resembles Martha's signature exemplar, hersignature on her August 1 declaration in the pro-ceedings on the motion to expunge, and her signa-ture on her declaration in opposition to the anti-SLAPP motion to strike.

Finally, at oral argument Lucas claimed that hehad reason to believe, and cause to investigate, thatStuart signed the contract on Martha's behalf as heragent. Lucas argues that as a result, the contractwas valid and enforceable against Martha under atheory of ostensible agency-i.e., where the principalallows the impression that the purported agent is



acting on her behalf. Lucas did raise this argumentbelow, but it is unclear that he amended his com-plaint to allege this alternative theory of recovery.In any case, Martha stated in her August 1 declara-tion and her declaration in opposition to the motionto strike that (1) she never gave Stuart permissionto act as her agent or sign the contract on her be-half; (2) that she believed that Alba, not Stuart,forged her signature, and (3) that she never spoke tothe Burnetts about selling them the property, andnever told them Stuart was her agent or was au-thorized to sign documents on her behalf. Whateverthe merits of an ostensible agency theory, Lucas hasnot overcome Martha's prima facie case.

*10 The Burnetts rely on the so-called adviceof counsel defense to malicious prosecution. Reli-ance on the advice of counsel may establish prob-able cause. (See Ross v. Kish (2006) 145Cal.App.4th 188, 202-203 (Ross ); Pond v. Insur-ance Co. of North America (1984) 151 Cal.App.3d280, 288.) But the advice of counsel defense re-quires that the clients seek out counsel in good faithand disclose all relevant facts to counsel. (Ibid.) Itappears, at least at the stage of a mere showing of aprima facie case, that there are several facts whichthe Burnetts may have known but did not discloseto Lucas-including the fact that the signature on Ex-hibit A was forged and the fact that the Burnetts'loan agent unilaterally added contract terms to Ex-hibit A.

The Burnetts knew that Lucas was suingMartha to seek specific performance on a contractthat the Burnetts knew had been unilaterally alteredand that they may have known was forged. There issufficient evidence of a prima facie case that theBurnetts did not disclose these facts to Lucas. Un-der these circumstances, and at the stage of a primafacie case and not a trial on the merits, we cannotsay that, as a matter of law, the advice of counseldefense defeats Martha's showing of a prima faciecase.

2. Malice. The element of malice in the tort ofmalicious prosecution relates to the purpose or sub-

jective intent in bringing the prior action. Malice isshown when the prior action is brought for an im-proper purpose. And a lack of probable cause is onefactor in the assessment of the presence or absenceof malice. ( Ross, supra, 145 Cal.App.4th at p. 204;Swat-Fame, Inc. v. Goldstein (2002) 101Cal.App.4th 613, 633, overruled on unrelated issueby Zamos, supra, 32 Cal.4th at p. 973 (Swat-Fame).) Malice may be inferred when a party knowinglybrings an action without probable cause. (Ross,supra at p. 204; Swat-Fame, supra at p. 634.)

We need not discuss the issue of malice at anylength in this opinion. The record is replete withLucas's alleged abusive conduct and persistence inmaintaining the specific performance cause of ac-tion without probable cause and in light of clearevidence, and a trial court ruling, that Martha didnot sign Exhibit A. Lucas then refused to dismissthe action unless Martha waived her right to sue formalicious prosecution. Lucas was aware that hismaintaining the Property Action was having seriousadverse effects on the health of a 90-year-old wo-man. This evidentiary showing adds up to a primafacie case that the Property Action was maintainedwith malice.FN11

FN11. We acknowledge that defendant Lu-cas maintains that he pursued the PropertyAction in good faith and without malice,and was performing reasonable investiga-tion of the validity of the Exhibit A signa-ture while he maintained the suit. Thereasonableness of counsel's persistence is,of course, a question of law to be decidedon a case-by-case basis.... ( Zamos, supra,32 Cal.4th at p. 970, fn. 9.) In this particu-lar case, on the facts before us, we con-clude that Martha has shown a prima faciecase that Lucas surpassed the bounds ofreasonable investigation and maintainedthe specific performance cause of actionwithout probable cause.

We have only reviewed the question ofwhether Martha stated a prima facie



case. We express no opinion on the ulti-mate disposition of the malicious prosec-ution action.

3. Favorable Termination. If an action ter-minates other than on the merits, a court will gener-ally look to the reasons underlying the terminationto see whether the termination reflects the opinionof the plaintiff or the trial court that the actioncould not succeed. (See Ross, supra, 145Cal.App.4th at p. 198; Oprian v. Goldrich, Kest &Associates (1990) 220 Cal.App.3d 337, 343.) Inthe ... context of a malicious prosecution action, avoluntary, unilateral dismissal of the underlyingdispute is generally considered a termination in fa-vor of the defendant. [Citation.] ( Tokerud v. Cap-itolbank Sacramento (1995) 38 Cal.App.4th 775,779.) This would not be true where the dismissalwas on technical grounds or as a result of an agree-ment or settlement unrelated to the merits. (Oprian,at p. 343.)

*11 Here, Lucas voluntarily and unilaterallydismissed the Property Action, under circumstancesthat clearly indicated he knew, as the trial court hadruled, that the cause of action for specific perform-ance utterly lacked merit because of the forged sig-nature. This dismissal went to the merits, as op-posed to a technical or agreed-upon termination ofthe action. This shows, at least for the purposes of aprima facie case, that the Property Action was ter-minated in Martha's favor.

We conclude that plaintiff made the requisiteshowing of a prima facie case, sufficient to show aprobability that she will prevail on her claim formalicious prosecution. Thus the trial court correctlydenied the anti-SLAPP motion to strike.

IV. DISPOSITIONThe order denying the anti-SLAPP motion to

strike is affirmed.FN12

FN12. Defendants' motion for judicial no-tice is denied. Martha's motion for Rule 27sanctions is also denied.

We concur: STEIN and SWAGER, J.

Cal.App. 1 Dist.,2007.Depper v. BurnettNot Reported in Cal.Rptr.3d, 2007 WL 70442(Cal.App. 1 Dist.)

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Depper v. Burnett Appellate Decision