Filed 12/11/13 Franklin v. Merkin 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



J. DAVID FRANKLIN, SR.,                                             D063026

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00097718-CU-PO-CTL)
DONALD MERKIN,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Timothy B.

Taylor, Judge. Affirmed in part; reversed in part.

         J. David Franklin, Sr., in pro. per., for Plaintiff and Appellant.

         Donald Merkin, in pro. per., for Defendant and Respondent.



                                                             I.

                                                 INTRODUCTION

         J. David Franklin, Sr. (Senior) contends that the trial court erred in granting

defendant and respondent Attorney Donald Merkin's special motion to strike Senior's
complaint pursuant to the anti-SLAPP1 statute (Code Civ. Proc., § 425.16.)2 Senior's

complaint alleged two causes of action against Attorney Merkin—malicious prosecution

and intentional infliction of emotional distress. Both claims were based on Attorney

Merkin's filing a breach of contract claim against Senior, on behalf of a client, alleging

that Senior was liable for breach of a written lease for real property. In a malicious

prosecution claim, Senior alleged that Merkin had maliciously filed the action without

probable cause, and that the action had been terminated in Senior's favor. In his

intentional infliction of emotional distress claim, Senior alleged that Attorney Merkin's

filing the lawsuit had caused him to suffer severe emotional distress.

       We conclude that Senior met his minimal burden under the anti-SLAPP statute to

establish a prima facie case with respect to all three elements of his malicious prosecution

cause of action: favorable termination, lack of probable cause, and malice. Specifically,

we conclude that Senior received a summary judgment on the merits in his favor in the

underlying action, Attorney Merkin filed the breach of contract claim against Senior

without any reasonable basis for believing that Senior might be liable on the lease, and

there is ample evidence in the record from which a jury could find that Attorney Merkin

acted with malice. However, we also conclude that Senior failed to carry his burden of

establishing a probability of prevailing on his claim of intentional infliction of emotional



1     SLAPP stands for Strategic Lawsuit Against Public Participation. (See Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)

2      Unless otherwise specified, all subsequent statutory references are to the Code of
Civil Procedure.
                                              2
distress. Accordingly, we reverse the trial court's order granting Attorney Merkin's

special motion to strike with respect to the malicious prosecution claim and affirm the

order as to the intentional infliction of emotional distress claim.3

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The lease agreement

       In December 2008, Senior's son, John David Franklin, Jr. (Junior), entered into a

five-year eight-month lease (the Lease) with the Victor Family Trust (the Trust) for an

industrial building in San Marcos (the Property). The Lease was signed by Ken and

Beverly Victor (the Victors) on behalf of the Trust as lessor and by "John D. Franklin" as

lessee. The Lease lists Mike Napierala as the broker for both the lessor and lessee, and

provides Napierala's business address and telephone number.



3       While this appeal was pending, Attorney Merkin filed a motion for sanctions
against Senior for filing a frivolous appeal. We conclude that Senior's appeal is not
frivolous, and is in fact meritorious with respect to the malicious prosecution claim.
Accordingly, we deny the motion for sanctions.
        We also note that Attorney Merkin's appellate brief is replete with factual
assertions that are not supported by any citation to the record, in clear violation of a basic
rule of court. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [stating that each brief must
"[s]upport any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears"].) All rule references are to the Cal.
Rules of Court. We choose to exercise our authority under rule 8.204(e)(2)(C), to
disregard such noncompliance rather than to order corrections or strike the brief with
leave to file a new brief (see rule 8.204(e)(2)(A),(B)), not because Attorney Merkin's
transgressions were minor, but because, as discussed below, we conclude that many of
his arguments are without merit and we do not wish to further delay the proceedings.
(See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [lamenting failure
to provide adequate record citations, but choosing to disregard noncompliance so as not
to further delay the appeal].)
                                              3
B.     The unlawful detainer action

       In November 2010, the Trust filed a verified unlawful detainer complaint against

Junior. In its complaint, the Trust alleged that Junior had entered into the Lease with the

Trust. In January 2011, Junior filed a verified answer to the complaint, and admitted that

he had entered into the Lease with the Trust. Senior represented Junior in the unlawful

detainer action. On February 10, the Trust and Junior entered into a stipulated judgment

in the unlawful detainer action that resolved issues pertaining to possession of the

Property. Junior signed the stipulated judgment as defendant and Senior signed the

stipulated judgment as Junior's counsel.4

C.     The underlying litigation giving rise to this action

       Meanwhile, in January 2011, Junior filed an action against the Trust and the

Victors.5 In March 2011, Attorney Merkin filed, on behalf of the Trust, a cross-

complaint alleging a breach of contract cause of action against both Junior and Senior,

and a fraudulent inducement cause of action as to Junior, only. Both claims arose from

the Trust's lease of the Property. In the general allegations portion of the cross-

complaint, the Trust alleged:

          "On or about December 24, 2008, 'John David Franklin' offered to
          lease the [Property] from [the Trust]. The offer was made through a
          Coldwell Banker real estate brokerage sales associate.[6] For the

4     Although the stipulated judgment in the record is not signed by a judge, it is
undisputed that the unlawful detainer was resolved by way of the stipulated judgment.

5      Junior's complaint is not in the record.

6      It is undisputed that Napierala was the sales associate.
                                              4
          purpose of inducing plaintiff to lease the [Property], [Junior]
          submitted a rental application signed by 'John David Franklin'
          purportedly containing identification about [Junior] [b]ut in fact
          containing information about his father, [Senior]."

       In addition, the Trust alleged that the name "John David Franklin, Jr." did not

appear in the Lease, and that that "Senior went into possession [of the Property] by

storing [on the Property] personal property owned by him." The Trust also alleged,

"[Senior] either signed the lease or authorized his son, [Junior] to sign for him."

       In the breach of contract cause of action against Junior and Senior, the Trust

incorporated these general allegations and further alleged that "[c]ross-defendants, and

each of them, are in breach of the [L]ease." In its fraudulent inducement cause of action

against Junior, the Trust incorporated the general allegations and further alleged that

Junior had knowingly and intentionally misrepresented to the Trust that the financial and

credit records he provided to the Trust pertained to him when they in fact pertained to

Senior. The Trust also alleged that Junior had made these misrepresentations for the

purpose of "inducing acceptance of the lease offer," and that the trustees of the Trust had

relied on the misrepresentations, to the Trust's detriment.

       In September 2011, Senior filed a motion for summary judgment. In his brief in

support of his motion, Senior argued that he could not be found liable on the Trust's

breach of contract claim because he had not signed the Lease and was not a party to the

Lease. Among other items of evidence, Senior supported his motion with a declaration

stating that he had not signed the Lease, Junior's declaration stating that he had signed the

Lease and that Senior had not been involved in any manner in the leasing of the Property,


                                              5
and Napierala's deposition testimony in which he stated that he had personally witnessed

Junior sign the Lease.

       Also in September 2011, the Trust substituted an attorney in place of Attorney

Merkin, and Attorney Merkin had no further involvement in the case.

       In December 2011, Senior and the Trust entered into a stipulation that stated that

the Trust did not intend to oppose Senior's summary judgment motion and that the trial

court could decide the motion based on Senior's moving papers.7

       In March 2012, the trial court granted Senior's motion for summary judgment. In

its order granting the motion, the court stated, "[T]he undisputed evidence establishes that

the [Lease] was not signed by [Senior] and he is not a party to the [Lease]." The court

added, "[The Trust's] failure to file [an] opposition is an admission that this summary

judgment motion is meritorious." In April 2012, the court entered judgment in favor of

Senior on the cross-complaint.

D.     This action

       1.     Senior's complaint

       In May 2012, Senior filed a complaint against Attorney Merkin, alleging causes of

action for malicious prosecution and intentional infliction of emotional distress. Both

causes of action were premised on Attorney Merkin's filing and maintaining the cross-

complaint on behalf of the Trust in the underlying litigation. In his malicious prosecution

claim, Senior alleged that Attorney Merkin had maliciously "acted without reasonable or


7      Although the stipulation that is in the record is unsigned, it is undisputed that
Senior and the Trust entered into the stipulation.
                                              6
probable cause to believe that [Senior] was the lessee on the [L]ease." Senior further

alleged that the trial court in the underlying litigation had granted Senior's motion for

summary judgment on the breach of contract cause of action, and entered a judgment in

his favor.

       In his claim for intentional infliction of emotional distress, Senior incorporated the

allegations of his malicious prosecution claim and alleged, "As a direct result of the filing

of the frivolous Cross-Complaint against [Senior], severe emotional distress was inflicted

upon [Senior]."

       2.     Attorney Merkin's special motion to strike

       In August 2012, Attorney Merkin filed a special motion to strike. Merkin argued

that both causes of action in Senior's complaint arose from activity that is protected under

the anti-SLAPP statute, namely, Attorney Merkin's filing a lawsuit. Merkin further

maintained that Senior would be unable to carry his burden of establishing a probability

of prevailing on his malicious prosecution cause of action. Merkin contended that he had

"[l]ots of probable cause" to file a breach of contract claim against Senior, noting that

Senior and Junior had the same name and asserting that it could not be determined from

the Lease which individual had signed the Lease. Attorney Merkin also contended that

the fact that Senior's credit information had been provided to the Victors and that Senior

likely stored vehicles belonging to him on the Property also supported the conclusion that

Merkin had probable cause to file the breach of contract claim against Senior. Attorney

Merkin also argued that there had been no termination of the underlying litigation on the

merits in favor of Senior because the Trust had agreed not to oppose Senior's summary

                                              7
judgment motion "so long as no damages, attorney[] fees or costs were sought."

(Underlining omitted.) Finally, Merkin contended that there was no "evidence of actual

malice as Mr. Merkin did not know of the Franklins prior to meeting the Victors."

       Attorney Merkin supported his motion to strike with his own declaration in which

he stated that prior to filing the cross-complaint, he learned that Senior and Junior had

been indicted in Arizona on charges of fraud and theft related to a used car dealership that

they owned called Hurricane Motors and a "financing affiliate" that they owned called

Riteway. Attorney Merkin claimed that he had spoken with the prosecutor in the Arizona

case, a person whom Merkin "knew to be extremely dedicated and reliable." According

to Merkin, the prosecutor told him that "the two Franklins, father and son, as part of their

scheme to defraud and steal from low income auto buyers, did in fact use each other's

names when it suits their purposes." Attorney Merkin also stated that the Victors had

given him credit information that had been provided to them by "John Franklin," in the

course of the Lease transaction, and that some of the credit information pertained to

Senior. In addition, Attorney Merkin stated that some of the vehicles stored on the

Property likely belonged to Hurricane Motors, an entity owned and operated by both

Senior and Junior.

       Attorney Merkin stated that in light of this information "it was impossible to know

if either one or the other or both of the Franklins were the proper defendants . . . so I

determined to recommend that the Victors cross-complain against both of them." With

respect to the resolution of the underlying litigation, Attorney Merkin stated the

following:

                                              8
           "I was told by the Victors' attorney, Mr. Moya, who participated in
           the dismissals, that an agreement was reached whereby Mr. Franklin
           was paid an undisclosed sum, the complaint and the cross-complaint
           were dismissed but the motion for summary judgment that [Senior]
           had filed on the cross-complaint would be permitted to come to
           judgment without opposition by the Victors and with no damages or
           costs to be awarded."

       In support of his motion, Attorney Merkin provided four pages of financial

documents that Junior had submitted to Napierala in an effort to secure the Lease. The

documents included: (1) a one-page account summary for several different bank accounts

with Wells Fargo Bank including accounts for "Franklin & Franklin,"8 "Hurricane Motor

Sales," and "Riteway Manufacturing"; (2) a two-page income statement for Hurricane

Motor Sports showing "total income" of nearly $2 million; (3) and one page of an eight-

page credit report for a "John D. Franklin." The page of the credit report that Junior

provided listed Senior's address as the address of the person who was the subject of the

report. The credit report also appears to list the last four digits of the subject's social

security number. However, the digits are illegible because there is a black line drawn

through the digits.

       Attorney Merkin also supported the motion with several documents pertaining to

the Arizona case, including copies of a press release from the Arizona Attorney General's




8      It is undisputed that Senior is a partner with the law firm Franklin & Franklin and
that Junior is not affiliated with the firm.
                                               9
office, an indictment, and two interlocutory opinions from the Arizona Court of

Appeals.9

       3.     Senior's opposition

       In his opposition, Senior conceded that his malicious prosecution claim arose from

activity that is protected under the anti-SLAPP statute.10 However, Senior contended

that there was a probability that he would prevail on the claim. With respect to the

favorable termination element, Senior argued that the trial court had entered summary

judgment in his favor on the merits, and that there was no admissible evidence to the

contrary.11 With respect to the probable cause element, among other arguments, Senior

contended, "Lack of probable cause in the case at bar is clearly shown by the fact that the

Victors sued [Junior] in an unlawful detainer Complaint alleging in the Verified

Complaint that [Junior] was the person who entered into a lease agreement with the

Victors." Senior also argued that evidence that Merkin knew the cross-complaint in the

underlying litigation against Senior was baseless when combined with evidence that

Attorney Merkin attempted to "extort a settlement" of the case, supported the inference

that Merkin had acted with malice in filing the cross-complaint.

9      None of the documents from the Arizona case contain any information suggesting
that Junior and Senior attempted to confuse their identities as part of the alleged
fraudulent scheme at issue in that case.

10     Senior did not address his claim of intentional infliction of emotional distress in
his opposition.

11     Senior objected to Attorney Merkin's declaration to the extent that the declaration
contained Attorney Moya's hearsay statements pertaining to the manner by which Senior
obtained summary judgment in the underlying case.
                                             10
       Senior supported his opposition with his own declaration, pleadings from both the

unlawful detainer action and the underlying litigation that gave rise to this action,

deposition testimony from Beverly and Ken Victor, correspondence between Junior and

the Victors, and financial documents offered in connection with the leasing of the

Property, among other items of evidence.

       4.      The trial court's ruling

       After Merkin filed a reply brief12 and the trial court held a hearing, the trial court

granted Merkin's special motion to strike. The court stated that Senior's claims arose

from protected activity, namely Merkin's petitioning a court and representing a client in

litigation. The trial court further concluded that Senior would be unable to establish a

probability of prevailing on either of his claims. Specifically, the court concluded that

although the underlying litigation had terminated in Senior's favor, Senior had failed to

carry his burden of establishing that Attorney Merkin maliciously filed the suit without

probable cause. The court reasoned in part:

            "At the time [A]ttorney Merkin filed his cross-complaint alleging
            breach of contract and fraudulent inducement,[13] he was in
            possession of information that made it unclear whether [Senior] had
            allowed his credit records to be used by his son to obtain the lease
            and/or whether [Junior] or [Senior] had signed the lease. Further, as
            shown by the ten-page declaration of [A]ttorney Merkin in support
            of his special motion to strike, he engaged in a great deal of due

12     Attorney Merkin's reply brief was one page in length. In the brief, Merkin
reasserted that he "had more than enough probable cause to cross-complain against
[Senior]."

13     As noted above (see pt. II.C., ante), the fraudulent inducement claim was alleged
solely against Junior.
                                              11
            diligence before agreeing to represent the Victors and file an answer
            and cross-complaint. At the time he commenced the action, Merkin
            had information from an Arizona prosecutor, whom he trusted, that
            the Franklins had been indicted in Arizona in a scheme in which
            they intentionally misrepresented or confused their identities. This
            information, together with the fact that [Junior] did not use the 'Jr.' in
            signing the lease, and used his father's address for some purposes
            (although he did not live with his father, being over 40 years of age),
            renders this a situation in which Merkin had probable cause to
            pursue the cross-action. Thus, the case lacks minimal merit. The
            overruling of the demurrer by Judge Foster cements this
            conclusion.[14]

            "More importantly, [Senior] has not carried his burden to show a
            probability he will prevail on his claims for malicious prosecution or
            [intentional infliction of emotional distress]. Given the declaration
            of [A]ttorney Merkin, it does not appear that [Senior] can show
            malice on the part of Merkin at the time of filing the answer and
            cross-complaint."

       5.      The appeal

       Senior timely appealed from the trial court's order granting Merkin's special

motion to strike. (See § 425.16, subd. (i) ["[a]n order granting or denying a special

motion to strike shall be appealable"].)

                                               III.

                                         DISCUSSION

A.     The trial court erred in granting Attorney Merkin's special motion to strike
       Senior's malicious prosecution claim

       Senior contends that the trial court erred in granting Attorney Merkin's special

motion to strike Senior's malicious prosecution claim.



14     The trial court was referring to a ruling in the underlying action. The ruling is not
contained in the record on appeal.
                                               12
       1.     General principles of law governing a special motion to strike under the
              anti-SLAPP statute

       The anti-SLAPP statute states in relevant part: "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." (§ 425.16, subd. (b)(1).)

       A trial court is required to engage in a two-step process in resolving 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."

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) " 'If the court finds

such a showing has been made, it then determines whether the plaintiff has demonstrated

a probability of prevailing on the claim.' [Citation.]" (Ibid.)

       " '[A]lthough by its terms section 425.16, subdivision (b)(1) calls upon a court to

determine whether "the plaintiff has established that there is a probability that the

plaintiff will prevail on the claim," (italics added) past cases interpreting this provision

establish that the Legislature did not intend that a court, in ruling on a motion to strike

under this statute, would . . . determine whether it is more probable than not that plaintiff

will prevail on the claim . . . .' [Citation.]" (Daniels v. Robbins (2010) 182 Cal.App.4th

204, 215 (Daniels).) Rather, to establish the requisite probability of prevailing, a plaintiff

must merely state and substantiate a legally sufficient claim (Briggs v. Eden Council for


                                              13
Hope & Opportunity (1999) 19 Cal.4th 1106, 1122–1123), thereby demonstrating that his

case has at least minimal merit. (Cole v. Patricia A. Meyer & Associates, APC (2012)

206 Cal.App.4th 1095, 1105 (Cole).) "Put another way, the plaintiff 'must demonstrate

that the complaint is both legally sufficient and supported by a sufficient prima facie

showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff

is credited.' [Citations.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,

821 (Wilson).)

       "In deciding the question of potential merit, the trial court considers the pleadings

and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd.

(b)(2)); though the court does not weigh the credibility or comparative probative strength

of competing evidence, it should grant the motion if, as a matter of law, the defendant's

evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary

support for the claim." (Wilson, supra, 28 Cal.4th at p. 821, second italics added; see

also Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017 ["The second prong—i.e.,

whether the plaintiff . . . has shown a probability of prevailing on the merits—is

considered under a standard similar to that employed in determining nonsuit, directed

verdict or summary judgment motions"].)

       2.     Standard of review

       On appeal, we "review an order granting an anti-SLAPP motion de novo, applying

the same two-step procedure as the trial court." (Cole, supra, 206 Cal.App.4th at p.

1105.) Thus, "we neither 'weigh credibility [nor] compare the weight of the evidence.

Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate

                                             14
the defendant's evidence only to determine if it has defeated that submitted by the

plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006)

39 Cal.4th 260, 269, fn. 3 (Soukup).)

       3.     General principles of law governing the tort of 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." (Soukup, supra, 39 Cal.4th at p. 292.)

       Although "[t]he tort of malicious prosecution is disfavored . . . this convenient

phrase . . . should not be employed to defeat a legitimate cause of action." (Zamos v.

Stroud (2004) 32 Cal.4th 958, 966.) "[M]alicious prosecution suits are not barred simply

because they are disfavored." (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)

       4.     Application

       Senior acknowledges that Attorney Merkin carried his burden of demonstrating

that Senior's malicious prosecution action arose from activity that is protected by the anti-

SLAPP statute. (See e.g., Daniels, supra, 182 Cal.App.4th at p. 215 ["The plain language

of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of

action arising from protected activity because every such claim necessarily depends upon

written and oral statements in a prior judicial proceeding"].) Thus, we need consider only

whether Senior carried his burden of making a prima facie showing of facts to sustain a




                                             15
judgment in his favor.15 We consider each element of Senior's malicious prosecution

claim in turn.

                 a.     Favorable termination16

          In order to establish favorable termination of the prior litigation, a malicious

prosecution plaintiff must demonstrate the existence of "a termination reflecting on the

merits of the [underlying] action," reflecting "the opinion of the court or the prosecuting

party that the [underlying] action would not succeed." (Sierra Club Foundation v.

Graham (1999) 72 Cal.App.4th 1135, 1149.) Whether the resolution of the underlying

action constitutes a favorable termination is a question of law for the court to decide.

(Ibid.)

          Senior presented evidence that the trial court in the underlying litigation granted

judgment in his favor. Further, in its order granting Senior's motion for summary

judgment, the trial court stated, "[T]he undisputed evidence establishes that the lease

agreement was not signed by [Senior] and he is not a party to the [Lease]." Despite this

ruling, Attorney Merkin argues that the trial court's summary judgment cannot be

15      It is also undisputed that Senior's malicious prosecution claim is a legally
sufficient claim. The parties dispute only whether Senior presented sufficient facts to
state a prima facie case of malicious prosecution.

16     Senior notes that the trial court found that " 'there was a favorable termination,' "
and argues that "the trial court's ruling on 'favorable termination' cannot be reviewed on
this appeal . . . [because] [r]espondent did not [c]ross-[a]ppeal to raise this issue." Senior
is incorrect. A respondent need not file a cross-appeal in order to assert on appeal that
there exists an alternative ground for affirming a trial court's order. (See, e.g., State
Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 828.) Thus, we may
consider Attorney Merkin's argument that the trial court's order may be affirmed on the
ground that the underlying litigation was not terminated on the merits in Senior's favor.
                                                16
considered a ruling on the merits of the underlying action because the Victors agreed that

"they would not oppose [Senior's] motion for summary judgment so long as no damages,

attorney[] fees or costs were sought." Attorney Merkin fails to cite to anything in the

record to support this assertion. His argument fails for this reason alone. (See, e.g.

Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 ["We are not

required to search the record to ascertain whether it contains support for [party]'s

contentions"].) In any event, our own review of the record reveals no admissible

evidence demonstrating that the termination of the underlying litigation was not on the

merits in Senior's favor.17

       Accordingly, in light of the trial court's judgment and summary judgment order in

the underlying litigation in favor of Senior, we conclude that Senior received a favorable

termination of the underlying litigation.

              b.     Probable cause

       In Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 550-551,

this court outlined the law governing the probable cause element of a malicious

prosecution claim:

          "An action is deemed to have been pursued without probable cause
          if it was not legally tenable when viewed in an objective manner as


17      In one portion of his brief, Attorney Merkin states, "In September 2011, all parties
[to the underlying litigation] entered into a stipulation for dismissal of the entire action."
In support of this assertion Attorney Merkin cites to the stipulation entered into between
Senior and the Trust stating that the trial court could decide the motion for summary
judgment based solely on the moving papers. (See pt. II.C, ante.) Contrary to Merkin's
statement in his brief, the stipulation plainly does not constitute a "stipulation for
dismissal of the entire action."
                                              17
          of the time the action was initiated or while it was being prosecuted.
          The court must 'determine whether, on the basis of the facts known
          to the defendant, the institution of the prior action was legally
          tenable.' [Citation.] 'The resolution of that question of law calls for
          the application of an objective standard to the facts on which the
          defendant acted. [Citation.]' [Citation.] The test the court is to
          apply is whether 'any reasonable attorney would have thought the
          claim tenable . . . .' [Citation.] . . .

          " 'In analyzing the issue of probable cause in a malicious prosecution
          context, the trial court must consider both the factual circumstances
          established by the evidence and the legal theory upon which relief is
          sought. A litigant will lack probable cause for his action either if he
          relies upon facts which he has no reasonable cause to believe to be
          true, or if he seeks recovery upon a legal theory which is untenable
          under the facts known to him.' [Citation.]"

       Attorney Merkin's breach of contract claim against Senior was premised on the

theory that Senior was liable on the Lease, either because Senior personally signed the

Lease, or because Senior authorized Junior to sign it on his behalf.18 The evidence in the

record establishes that no reasonable attorney would think that Senior could be liable

pursuant to either theory.

       With respect to the agency theory, there is no evidence in the record from which a

reasonable attorney could conclude that Senior authorized Junior to sign the Lease on his

behalf. While Attorney Merkin presented evidence that Junior may have provided some

credit information that Attorney Merkin reasonably believed pertained to Senior,19



18     As noted previously, in the breach of contract cause of action, the Trust alleged,
"[Senior] either signed the lease or authorized his son, [Junior], to sign for him."

19      As noted in part II.D.2., ante, Attorney Merkin supported his special motion to
strike with four pages of financial documents that Junior submitted to Napierala in an
effort to secure the lease: a bank account summary page, an income statement for
                                            18
Attorney Merkin presented no evidence tending to show that Senior authorized Junior to

provide such information. Further, even assuming that Senior did authorize Junior to

submit his credit information to the Victors, we are aware of no authority, and Attorney

Merkin has cited none, that would support the conclusion that such an act would render

Senior potentially liable on a breach of contract action premised on the Lease—the only

cause of action alleged against Senior in the cross-complaint in the underlying

litigation.20




Hurricane Motor Sports, and one page of a credit report. Attorney Merkin had
reasonable grounds to believe that a bank account listed on the bank account summary
page belonged to Senior, and also could have reasonably believed that Senior had an
ownership interest in Hurricane Motor Sports.
        However, Attorney Merkin failed to demonstrate that he had any reasonable cause
to believe that the credit report belonged to Senior. Attorney Merkin provided only one
of eight pages of the credit report to the trial court. On the page supplied by Attorney
Merkin, the credit bureau represented the first five digits of the subject's social security
number with X's and Attorney Merkin redacted the last four digits such that the report
appeared as follows: "XXX-XX-[redacted digits]." During the hearing on the special
motion to strike, Attorney Merkin stated, "I never blocked out any social security
numbers for any reason other than privacy."
        In opposing the motion to strike, Senior supplied the same page of the credit
report, unredacted, as well as additional pages of the credit report. The additional
information demonstrates that the credit report belonged to Junior rather than Senior.

20        Even assuming that there was evidence that Senior authorized Junior to sign the
agreement on his behalf, there was no evidence that Senior provided such authorization in
writing, as would be required in order to enforce the Lease against Senior on the theory
that Junior had signed the lease on Senior's behalf. (See Civ. Code, § 1624, subd. (a)(3)
["(a) The following contracts are invalid, unless they, or some note or memorandum
thereof, are in writing and subscribed by the party to be charged or by the party's agent:
[¶] . . . [¶] (3) An agreement for the leasing for a longer period than one year . . . of real
property, or of an interest therein; such an agreement, if made by an agent of the party
sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed
by the party sought to be charged"].)
                                             19
       Attorney Merkin suggests that it was proper to sue Senior for breach of contract

because, he maintains, he had probable cause to believe that Senior and Junior "conspired

together." (Italics added.) However, a party may not be held liable for breach of

contract based on a conspiracy theory, and Attorney Merkin did not bring any tort claims

against Senior. (See Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 823

["civil conspiracy requires an underlying tort because it merely extends liability for the

tort to individuals who shared in the tortfeasor's plan or design, but did not actually

commit the tort" (italics added)].)

       Further, the theory that Senior personally signed the Lease was not legally tenable

under the facts known to Merkin when he filed the cross-complaint. At the time Merkin

filed the cross-complaint, he knew that the Trust had filed an unlawful detainer action

against Junior in which the Trust had alleged that Junior had entered into the Lease.21

Junior filed an answer in the unlawful detainer action in which he admitted having

entered into the Lease. In admitting this allegation, Junior bound both himself and the

Trust to the truth of the factual allegation in the Trust's complaint that Junior had entered

into the Lease. (See, e.g., Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446,

452 [noting that "a judicial admission is ordinarily a factual allegation by one party that is

admitted by the opposing party," and that "[a] judicial admission is . . . conclusive both as

to the admitting party and as to that party's opponent" (italics omitted)].) As Attorney

Merkin alleged in the cross-complaint against Senior, the Trust and Junior had entered


21     Attorney Merkin referred to the unlawful detainer action in his cross-complaint
against Senior and Junior.
                                             20
into a stipulated judgment in February 2011, settling the unlawful detainer case. Finally,

it is undisputed that only one individual signed the Lease. Thus, under the facts known to

Attorney Merkin at the time he filed the cross-complaint, the Trust had no viable claim

against anyone other than Junior for breach of the Lease.

       Accordingly, we conclude that the trial court erred in determining that Senior

failed to establish that Attorney Merkin lacked probable cause in filing the breach of

contract claim against Senior in the underlying action.

              c.     Malice

       In Jay v. Mahaffey (2013) 218 Cal.App.4th 1522 at page 1543 (Jay), the court

outlined the law governing the malice element of a malicious prosecution claim:

          " '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. [Citation.]' [Citation.]

          "The lack of probable cause is one factor in determining the
          presence of malice, but alone it is insufficient. [Citation.] 'Merely
          because the prior action lacked legal tenability, as measured
          objectively (i.e., by the standard of whether any reasonable attorney
          would have thought the claim tenable [citation]), without more,
          would not logically or reasonably permit the inference that such lack
          of probable cause was accompanied by the actor's subjective
          malicious state of mind. In other words, the presence of malice must
          be established by other, additional evidence.' [Citation.]"

       " 'For purposes of a malicious prosecution claim, malice "is not limited to actual

hostility or ill will toward [appellant]. Rather, malice is present when proceedings are

instituted primarily for an improper purpose." [Citation.]' " (Oviedo v. Windsor Twelve

                                            21
Properties, LLC (2012) 212 Cal.App.4th 97, 113 (Oviedo).) For example, evidence

suggesting that " ' "the proceedings are initiated for the purpose of forcing a settlement

which has no relation to the merits of the claim" ' " (ibid.), and evidence that an attorney

failed to conduct an adequate investigation before filing a lawsuit (Sycamore Ridge

Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407) supports a finding of

malice.

       "[T]he defendant's motivation is a question of fact to be determined by the jury."

(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874.) "Because direct

evidence of malice is rarely available, 'malice is usually proven by circumstantial

evidence and inferences drawn from the evidence.' [Citation.]" (Jay, supra, 218

Cal.App.4th at p. 1543.)

       In this case, in his special motion to strike, Attorney Merkin stated that he had

spent "three weeks investigating . . . before agreeing to take the case," and in his

supporting declaration, Merkin stated that his initial contact pertaining to the case was a

February 8, 2011 meeting with the Victors.

       In opposing the special motion to strike, Senior lodged a February 14, 2011 letter

that Attorney Merkin sent to Senior in which Merkin stated the following:

          "This office represents Kenneth and Beverly Victor and the Victor
          Family Trust . . . .

          "I will be answering and cross-complaining on or before March 2,
          2011. I am writing this to give you an opportunity to settle before I
          file. [¶] . . . The Victors will accept $8,500 in full settlement on
          behalf of you and your son on condition that the premises are
          vacated on or before March 2, 2011. . . . [¶] If you do not agree to
          this offer, which sounds pretty good to me, the Victors will cross-

                                             22
              complain against your son—and against you, since you are a
              signatory on the lease."22

       Thus, contrary to Merkin's assertion that he conducted a three-week long

investigation prior to taking the case, Senior presented evidence that Attorney Merkin

was representing the Victors just six days after his initial meeting with the Victors. In

addition, the February 14 demand letter constitutes evidence that Attorney Merkin filed

the cross-complaint against Senior for the " ' "the purpose of forcing a settlement which

has no relation to the merits of the claim." [Citation.]' " (Oviedo, supra, 212 Cal.App.4th

at p. 113.)

       Further, while Attorney Merkin stated in his declaration that he had undertaken

"thorough due diligence" prior to agreeing to represent the Victors in the underlying

litigation, the vast majority of that investigation focused on learning the allegations

related to the Arizona case, rather than attempting to learn the basic facts pertaining to the

leasing of the Property. For example, Attorney Merkin did not state that he spoke with,

or attempted to speak with, the attorney representing the Trust in the unlawful detainer

action against Junior premised on the Lease.23 Nor did Attorney Merkin state that he




22      Although the letter is dated February 14, 2010, it is clear from the remainder of the
letter that the Merkin intended to date the letter February 14, 2011.

23      In his brief on appeal, Attorney Merkin states, without any citation to the record,
that he did have a telephone conversation with the attorney representing the Trust in the
unlawful detainer action prior to agreeing to take the case. However, Attorney Merkin's
declaration contains no such statement. Further, Attorney Merkin fails, even in his brief,
to state any facts that he purportedly learned from this telephone conversation that would
have supported filing a breach of contract claim against Senior. As noted previously, the
                                             23
had attempted to speak with Napierala, the broker whose name was listed on the Lease, in

an attempt to determine the proper defendant for a breach of contract cause of action

premised on the Lease. Under these circumstances, a reasonable fact finder could

conclude that Attorney Merkin failed to conduct an adequate investigation prior to filing

a breach of contract claim against Senior.

       In sum, there is evidence in the record from which a fact finder could find both

that Attorney Merkin failed to conduct an adequate investigation before filing the breach

of contract cause of action against Senior, and that Attorney Merkin filed the claim in an

attempt to force a settlement from Senior without any prospect of prevailing on the merits

of the claim. When combined with evidence of the objective unreasonableness of the

breach of contract claim against Senior (see pt. III.A.4.b., ante), we conclude that there is

sufficient evidence from which a trier of fact could infer that Attorney Merkin

maliciously filed the cross-complaint against Senior.

B.     The trial court's order granting Merkin's special motion to strike Senior's
       intentional infliction of emotional distress claim must be affirmed because
       Senior failed to carry his burden of demonstrating a probability of prevailing on
       this claim

       Although Senior appears to contend that the trial court erred in granting Merkin's

special motion to strike his intentional infliction of emotional distress claim, Senior fails

to present any argument on appeal specifically addressing this claim. Senior does not

contend on appeal that the trial court erred in concluding that Merkin carried his burden

of demonstrating that the claim arose from protected activity. Nor does Senior maintain

Trust sued Junior in the unlawful detainer action, so it is far from clear how such a
conversation would support filing an action against Senior.
                                              24
that he carried his burden of demonstrating a probability of prevailing on this claim.

Further, in opposing Merkin's special motion to strike, Senior failed to present any

argument or evidence demonstrating that he would be able to establish the elements of his

intentional infliction of emotional distress claim.

       While it is true that in his brief in support of his special motion to strike, Merkin

cited Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 188 (Martinez),

and argued that the malicious prosecution and intentional infliction of emotional distress

claims could "be considered together within the framework of [section 425.16]," we read

this portion of Merkin's brief as merely arguing that both claims arose from protected

activity because the principal thrust or gravamen of each cause of action was Merkin's

filing a lawsuit against Senior. (See Martinez, supra, at p. 188 ["We conclude it is the

principal thrust or gravamen of the plaintiff's cause of action that determines whether the

anti-SLAPP statute applies"].) Merkin's argument that both claims are within the scope

of the anti-SLAPP statute because they were both premised on the same petitioning act

did not relieve Senior of his burden of demonstrating the probability of prevailing on

each claim.

       Claims for malicious prosecution and intentional infliction of emotional distress

have distinct elements. (Compare Jay, supra, 218 Cal.App.4th at p. 1539 [" '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]' "] with So v. Shin (2013) 212 Cal.App.4th 652, 671 [listing

                                             25
elements of a cause of action for intentional infliction of emotional distress as "(1) the

defendant engages in extreme and outrageous conduct with the intent to cause, or with

reckless disregard for the probability of causing, emotional distress; (2) the plaintiff

suffers extreme or severe emotional distress; and (3) the defendant's extreme and

outrageous conduct was the actual and proximate cause of the plaintiff's extreme or

severe emotional distress"].) Senior's presentation of evidence establishing a probability

of prevailing on his malicious prosecution claim does not constitute evidence

demonstrating a probability of prevailing on his intentional infliction of emotional

distress claim.

       Accordingly, we conclude that the trial court properly granted Merkin's special

motion to strike Senior's intentional infliction of emotional distress claim.




                                             26
                                             IV.

                                       DISPOSITION

       The order granting Merkin's special motion to strike is reversed with respect

Senior's malicious prosecution claim and affirmed as to his intentional infliction of

emotional distress claim. In the interests of justice, the parties shall bear their own costs

on appeal.




                                                                                  AARON, J.

WE CONCUR:



         O'ROURKE, Acting P. J.



                          IRION, J.




                                              27
