Filed 9/30/13 Tulare Sag, Inc. v. Keller, Fishback & Jackson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

TULARE SAG, INC.,
                                                                                           F064726
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCU244256)
                   v.

KELLER, FISHBACK & JACKSON, LLP et al.,                                                  OPINION
         Defendants and Appellants.



         APPEAL from an order of the Superior Court of Tulare County. Melinda M.
Reed, Judge.
         McCormick, Barstow, Sheppard, Wayte & Carruth, Marshall C. Whitney,
Todd W. Baxter and Scott M. Reddie for Defendants and Appellants.
         Law Offices of Michael J. Lampe, Michael J. Lampe and Michael P. Smith for
Plaintiff and Respondent.
                                                        -ooOoo-
         Appellants, Keller, Fishback and Jackson, LLP, Stephen M. Fishback, Diran H.
Tashjian, and J. Bruce Jackson (Keller Fishback), challenge the trial court‟s denial of
their motion to strike the malicious prosecution action filed by respondent, Tulare SAG,
Inc., doing business as Lampe Dodge-Chrysler-Jeep (Lampe Dodge), as a strategic
lawsuit against public participation (SLAPP) under Code of Civil Procedure 1 section
425.16. According to Keller Fishback, Lampe Dodge did not meet its burden of
establishing a probability of prevailing on its claim.
       Lampe Dodge‟s malicious prosecution claim arose out of a wrongful death action
prosecuted by Keller Fishback on behalf of the heir of a decedent who died as a result of
asbestos exposure. The asbestos complaint alleged that the decedent was improperly
exposed to asbestos while working as an automobile mechanic and that Lampe Dodge
was directly liable as a seller of asbestos containing automobile parts. On the day before
trial, Keller Fishback stipulated there was no evidence that Lampe Dodge was directly
liable and moved to amend the complaint to state a theory of successor liability. The trial
court denied the motion to amend and dismissed the complaint. Thereafter, Lampe
Dodge filed the underlying complaint for malicious prosecution.
       Keller Fishback contends Lampe Dodge did not establish the elements of a
malicious prosecution claim because: the asbestos action was not terminated on the
merits; Keller Fishback had reasonable cause to continue pursuing the asbestos action;
and Keller Fishback did not act with malice. Contrary to Keller Fishback‟s position,
Lampe Dodge established that its claim has at least minimal merit. Therefore, the order
denying the motion to strike will be affirmed.
                                     BACKGROUND
       In November 2007, Joann Hardeman, individually and as successor-in-interest to
the Estate of Leonard Lee Hardeman, filed a wrongful death action against numerous


1      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.



                                              2.
entities alleging that between 1954 and 1997, Leonard Hardeman was improperly
exposed to asbestos and that this exposure led to his death. Keller Fishback did not
prepare this complaint. Rather, Keller Fishback substituted into the action as attorney of
record in April 2008.
       The complaint named “Lampe Chrysler-Dodge fka Brian Ross Chrysler-Dodge”
as one of the defendants in 15 separate causes of action. These causes of action included
damage claims for direct sales, negligence, strict liability, failure to warn, breach of
warranties, fraud, civil conspiracy, enterprise liability, loss of consortium and wrongful
death. The alleged liability was based on Leonard Hardeman having purchased
automotive parts from Brian Ross Dodge-Chrysler in the 1990‟s.
       However, in 2000, Brian Ross Dodge-Chrysler was sold to Don Groppetti and
became Tulare Chrysler Dodge Jeep. Then, in 2005, through an “Agreement for the
Purchase and Sale of Assets” (Agreement), Lampe Dodge purchased Tulare Chrysler
Dodge Jeep‟s assets from Groppetti.
       The assets purchased by Lampe Dodge included parts and accessories, fixed
assets, new vehicles, and the dealership‟s good will and trade name. The parties also
agreed that the “transfer, purchase, or assumption whatsoever of any asset or liability
other than those specifically enumerated” was not contemplated. It was further agreed
that Groppetti “shall retain all assets and liabilities other than those enumerated” in the
agreement and that Groppetti “shall continue to be liable for and shall indemnify, defend
and hold harmless [Lampe Dodge] from any and all of [Groppetti‟s] obligations and
liabilities other than those which [Lampe Dodge] has agreed herein to assume.”
       In January 2009, counsel for Lampe Dodge requested that Keller Fishback dismiss
Lampe Dodge from the complaint. Keller Fishback responded on January 27 that they
needed to conduct discovery before deciding whether dismissal was warranted. On
January 28, counsel for Lampe Dodge replied. Counsel explained that Lampe Dodge did



                                              3.
not exist at the time of the asbestos exposure and that it was not liable as a successor in
interest because it acquired the dealership through an asset purchase. Lampe Dodge also
stated it might be willing to waive costs and waive its malicious prosecution claim if
Keller Fishback responded with an offer to dismiss. Keller Fishback responded that they
could not rely on counsel‟s bare assertions to evaluate Lampe Dodge‟s liability and
requested that Lampe Dodge produce the relevant documents.
       When Keller Fishback had not received the requested documents by October 21,
2009, they served formal discovery on Lampe Dodge. By letter dated October 22, 2009,
counsel with Keller Fishback explained that they needed to evaluate admissible evidence
establishing that Lampe Dodge had not assumed any liabilities of Brian Ross Dodge “or
other relevant entities, especially in light of the fact that [Lampe Dodge‟s] business
operations continue at the same location in which former Dodge-Chrysler-Jeep
dealerships have been located, and from which asbestos-containing automotive parts
were purchased.”
       Nevertheless, during a telephone conversation with counsel for Lampe Dodge on
October 29, 2009, Keller Fishback offered to dismiss Lampe Dodge in exchange for a
waiver of costs. Counsel with Keller Fishback explained that, although the plaintiff had
potential theories of recovery against Lampe Dodge under a successor in interest and/or
product line theory, a cost benefit analysis indicated it would make the most economic
sense to dismiss Lampe Dodge. Lampe Dodge rejected this offer.
       On January 11, 2010, counsel for Lampe Dodge provided Keller Fishback with a
copy of the Agreement. However, the dollar amounts were redacted and the referenced
exhibits were not provided. Because the copy of the Agreement provided by Lampe
Dodge was incomplete, Keller Fishback felt they could not determine whether the
Agreement supported Lampe Dodge‟s position. Accordingly, Keller Fishback continued
with discovery.



                                              4.
       On January 29, 2010, counsel for Lampe Dodge filed a motion to impose
monetary sanctions against Keller Fishback and the plaintiff under section 128.7 based on
their refusal to dismiss Lampe Dodge. At the March 9, 2010, hearing on this motion, the
trial court observed that the paragraph in the Agreement stating that Lampe Dodge did
not assume any liabilities that were not specifically enumerated “shows that [Lampe
Dodge] couldn‟t possibly have any liability here.” Regarding the missing exhibits, the
court noted it was “not sure anything in those exhibits could possibly be pertinent .…”
Nevertheless, the trial court denied the motion without prejudice on the grounds that the
Agreement was not given to the plaintiff until January 11 and the attachments to the
Agreement were missing. The court then suggested that the attachments be provided to
Keller Fishback. Thereafter, counsel for Lampe Dodge learned that the exhibits
referenced in the Agreement had never been prepared.
       On January 7, 2011, Lampe Dodge moved for summary judgment. The trial court
denied this motion because the Agreement was not authenticated. The court also found
that Lampe Dodge had not met its initial burden on the dates of exposure at the
dealership.
       On August 23, 2011, the day before trial, Keller Fishback stated that they would
not be offering any evidence as to direct liability of Lampe Dodge. Keller Fishback
explained that “the only liability that is claimed as to the defendant Lampe Dodge is by
way of the contention that they are successor of interest.” However, the complaint did
not allege successor liability against Lampe Dodge.
       On August 24, 2011, the first day of trial, Keller Fishback moved to amend the
complaint to conform to proof in order to present evidence on successor in interest
liability claims. Keller Fishback explained that it wanted to proceed on the theory that
Lampe Dodge impliedly agreed to assume Brian Ross Dodge-Chrysler‟s liability. The
trial court denied the motion and dismissed the action.



                                            5.
        Thereafter, Lampe Dodge filed the underlying complaint for malicious prosecution
against Keller Fishback. Keller Fishback filed a motion to dismiss the complaint as a
SLAPP. Lampe Dodge conceded that the malicious prosecution action was subject to the
anti-SLAPP law. The court then concluded that Lampe Dodge had met its burden of
showing a probability of prevailing on its claim and denied the motion.
                                      DISCUSSION
1.      The anti-SLAPP statute.
        Section 425.16 was enacted in 1992 to provide a procedure for expeditiously
resolving “nonmeritorious litigation meant to chill the valid exercise of the constitutional
rights of freedom of speech and petition in connection with a public issue.” (Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It is California‟s
response to meritless lawsuits brought to harass those who have exercised these rights.
(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644, disapproved on
another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
68.) This type of suit, referred to under the acronym SLAPP, or strategic lawsuits against
public participation, is generally brought to obtain an economic advantage over the
defendant, not to vindicate a legally cognizable right of the plaintiff. (Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921,
927.)
        When served with a SLAPP suit, the defendant may immediately move to strike
the complaint under section 425.16. To determine whether this motion should be
granted, the trial court must engage in a two-step process. (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 76.)
        The court first decides “whether the defendant has made a threshold showing that
the challenged cause of action is one „arising from‟ protected activity.” (City of Cotati v.
Cashman, supra, 29 Cal.4th at p. 76.) The moving defendant must demonstrate that the



                                             6.
act or acts of which the plaintiff complains were taken “in furtherance of the
[defendant‟s] right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue .…” (§ 425.16, subd. (b)(1);
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the court
concludes that such a showing has been made, it must then determine whether the
plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88.)
        To establish the requisite probability of prevailing, the plaintiff need only have
“„“stated and substantiated a legally sufficient claim.”‟” (Navellier v. Sletten, supra, 29
Cal.4th at p. 88.) “„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.”‟” (Id.
at pp. 88-89.) The plaintiff need only establish that his or her claim has minimal merit to
avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 291 (Soukup).) The court neither weighs credibility nor evaluates the weight
of the evidence. Instead, the court accepts as true all evidence favorable to the plaintiff
and assesses the defendant‟s evidence only to determine if it defeats the plaintiff‟s
submission as a matter of law. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007)
151 Cal.App.4th 688, 699-700.) Nevertheless, a plaintiff cannot simply rely on his or her
pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible
evidence. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-
614.)
        The questions of whether the action is a SLAPP suit and whether the plaintiff has
shown a probability of prevailing are reviewed independently on appeal.
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)




                                              7.
       Here, the parties do not dispute that the malicious prosecution action arose from a
protected activity. Thus, this appeal turns on whether Lampe Dodge presented evidence
that, if believed by the trier of fact, is sufficient to support a judgment in its favor.
2.     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 or continued without probable
cause; and (3) was initiated with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965,
970 (Zamos).) Keller Fishback asserts that Lampe Dodge did not demonstrate a
probability of prevailing on any of these elements.
       a.      Lampe Dodge demonstrated that it achieved a favorable termination.
       To determine whether the malicious prosecution plaintiff received a favorable
termination, the court considers the judgment as a whole in the prior action. (Casa
Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341 (Casa Herrera).) However, victory
following a trial on the merits is not required. Rather, the termination simply must reflect
the merits of the action and indicate that the plaintiff is innocent of the alleged
misconduct. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 741.)
       Where, as here, a termination is by dismissal, it is favorable when it reflects the
opinion of either the trial court or the prosecuting party that the action lacked merit or if
pursued would result in a decision in favor of the defendant. (Contemporary Services
Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1056.) Thus, the reasons for the
dismissal must be examined. For example, a voluntary dismissal may be an implicit
concession that the dismissing party cannot maintain the action. (JSJ Limited
Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524.) However, a technical or
procedural termination, reflecting on neither innocence of nor responsibility for the
alleged misconduct, is not favorable for purposes of a malicious prosecution claim.



                                               8.
(Casa Herrera, supra, 32 Cal.4th at pp. 341-342.) Examples of technical or procedural
dismissals include dismissals on statute of limitations grounds, pursuant to a settlement,
or based on laches. (Ibid.)
       Keller Fishback argues the dismissal of its complaint was procedural. According
to Keller Fishback, Lampe Dodge did not achieve a favorable termination on the merits
because the dismissal was based on the trial court‟s refusal to permit Keller Fishback to
amend its complaint to state a claim based on successor liability on the first day of trial.
The trial court concluded Keller Fishback‟s motion to amend the complaint was untimely
and prejudicial to Lampe Dodge.
       However, Keller Fishback had been prosecuting the underlying action against
Lampe Dodge for approximately 3 years and 4 months. The day before trial, Keller
Fishback informed the court that they would be proceeding on only two of the 15 causes
of action against Lampe Dodge. Those two remaining causes of action were for
negligence and strict products liability. The court commented that Keller Fishback would
be dismissing the other 13 causes of action with prejudice the next day at the beginning
of trial. The complaint did not state a cause of action against Lampe Dodge based on
successor liability.
       The day of trial, Keller Fishback conceded that they had no evidence of direct
liability against Lampe Dodge. Accordingly, the trial court dismissed the complaint.
Thus, the entire action was terminated in Lampe Dodge‟s favor. This dismissal was not
procedural but, rather, reflected the opinion of both Keller Fishback and the court that the
action as it stood lacked merit. Keller Fishback‟s argument that their successor liability
claim would have been tenable goes to the issue of probable cause, not whether the prior
action was terminated favorably. (Crowley v. Katleman (1994) 8 Cal.4th 666, 686.)




                                              9.
       In sum, the judgment was in Lampe Dodge‟s favor on the merits and reflects that
Lampe Dodge was innocent of the alleged misconduct. Thus, Lampe Dodge has met the
favorable termination requirement.

      b.    Lampe Dodge established a prima facie showing that Keller Fishback
lacked probable cause to prosecute the asbestos action against it.
       In a malicious prosecution case, the existence or nonexistence of probable cause is
a legal question to be resolved by the court. (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 817.) This determination is made objectively, i.e., without
reference to whether the attorney bringing the prior action believed the case was tenable.
(Ibid.) The standard of probable cause to bring a civil suit is equivalent to that for
determining the frivolousness of an appeal. Accordingly, “probable cause exists if „any
reasonable attorney would have thought the claim tenable.‟” (Ibid.) Malicious
prosecution also includes “continuing to prosecute a lawsuit discovered to lack probable
cause.” (Zamos, supra, 32 Cal.4th at p. 973.)
       In analyzing probable cause in a malicious prosecution context, the court must
consider both the factual circumstances established by the evidence and the legal theory
upon which relief is sought. (Sycamore Ridge Apartments LLC v. Naumann (2007) 157
Cal.App.4th 1385, 1402 (Sycamore Ridge).) Litigants will lack probable cause for their
action either if they rely upon facts that they have no reasonable cause to believe to be
true, or if they seek recovery upon a legal theory that is untenable under the facts known
to them. (Ibid.) Thus, to make a prima facie case of a lack of probable cause in response
to the anti-SLAPP motion, Lampe Dodge must show no reasonable attorney would have
thought the asbestos related action against Lampe Dodge was tenable in light of the facts
known to Keller Fishback at the time Keller Fishback began prosecuting the case or that
Keller Fishback continued pursuing the lawsuit after they discovered facts that would




                                             10.
lead a reasonable attorney to conclude the action was not tenable. (Mendoza v.
Wichmann (2011) 194 Cal.App.4th 1430, 1449.)
       Keller Fishback argues they had probable cause to pursue the asbestos action
based on a successor in interest theory. According to Keller Fishback, it was reasonable
for them to conclude that Lampe Dodge impliedly assumed the liabilities of Brian Ross
Dodge-Chrysler for injuries related to the sale of asbestos containing products. Keller
Fishback further contends that a product line theory of successor liability under Ray v.
Alad Corp. (1977) 19 Cal.3d 22 (Ray) and Kaminski v. Western MacArthur Co. (1985)
175 Cal.App.3d 445 (Kaminski) was legally tenable.
       The facts known to Keller Fishback were that: the decedent purchased the
allegedly defective automobile parts from Brian Ross Dodge-Chrysler; in 2000, Brian
Ross Dodge-Chrysler was sold to Groppetti and became Tulare Chrysler Dodge Jeep; in
2005, Lampe Dodge purchased Tulare Chrysler Dodge Jeep‟s assets from Groppetti; the
agreement between Groppetti and Lampe Dodge provided that Groppetti “shall retain all
assets and liabilities other than those enumerated” in the agreement and that Groppetti
“shall continue to be liable for and shall indemnify, defend and hold harmless [Lampe
Dodge] from any and all of [Groppetti‟s] obligations and liabilities other than those
which [Lampe Dodge] has agreed herein to assume”; and the agreement between Lampe
Dodge and Groppetti did not specifically mention, and Lampe Dodge did not agree to
assume, liabilities related to the sale of asbestos containing products.
       In general, when a corporation purchases the principal assets of another
corporation, the purchaser does not assume the seller‟s liabilities unless “(1) there is an
express or implied agreement of assumption, (2) the transaction amounts to a
consolidation or merger of the two corporations, (3) the purchasing corporation is a mere
continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent
purpose of escaping liability for the seller‟s debts.” (Ray, supra, 19 Cal.3d at p. 28.) In



                                              11.
Ray, the court announced an exception to these traditional rules in the context of
imposing strict tort liability on a successor manufacturer. The court found that imposing
strict liability is justified where (1) the plaintiff‟s remedies against the original
manufacturer are virtually destroyed by the successor‟s acquisition of the business, (2)
the successor has the ability to assume the original manufacturer‟s risk-spreading role,
and (3) it is fair to require the successor to assume responsibility for defective products
that were a burden necessarily attached to the original manufacturer‟s good will that the
successor is enjoying in the continued operation of the business. (Ray, supra, 19 Cal.3d
at p. 31.) This theory has been referred to by some subsequent courts as the “„product
line theory‟ or the „product line continuation theory.‟” (Phillips v. Cooper Laboratories
(1989) 215 Cal.App.3d 1648, 1654 (Phillips).)
       In Kaminski, the court imposed successor liability under Ray on a distributor of
defective products. There, the predecessor corporation was completely taken over by the
successor. The successor assumed the predecessor‟s contracts, continued to supply the
same products and services, employed the same personnel, and used the predecessor‟s
customer lists in conducting its new business. When it was formed, the successor
corporation sent a letter to the predecessor‟s customers “asking if it may „continue to
serve‟ them, stressing that the new company had „the same experienced personnel‟ and
offered „the same products, engineering and contracting services.‟” (Kaminski, supra,
175 Cal.App.3d at p. 453.) The court concluded that, given the policies underlying strict
liability, “the „stream of commerce‟ approach to liability should extend to successor
entities. When a distributor or retailer acquires a corporation and takes advantage of its
goodwill and other corporate assets and facilities to inject the predecessor‟s product line
into the stream of commerce, it continues „the overall producing and marketing enterprise
that should bear the cost of injuries resulting from defective products.‟” (Id. at p. 456.)




                                               12.
        The successor does not have to “cause” the destruction of the plaintiff‟s remedies
before it will be held liable. A causal connection between the successor‟s acquisition and
the unavailability of the predecessor as a potential defendant is all that is required.
(Stewart v. Telex Communications, Inc. (1991) 1 Cal.App.4th 190, 198-199.) “The
successor need only have „played some role in curtailing or destroying the [plaintiff‟s]
remedies.‟” (Kaminski, supra, 175 Cal.App.3d at p. 458.) Nevertheless, successor
liability has generally been denied in situations showing no contributory cause on the part
of the successor in the predecessor‟s demise. (Ibid.) Moreover, in order to impose
liability upon a successor corporation, all three of the Ray prongs must be met. (Phillips,
supra, 215 Cal.App.3d at p. 1657.)
        Here, based on the facts submitted by Lampe Dodge, the first element under Ray,
i.e., the virtual destruction of the plaintiff‟s remedies against Brian Ross Dodge-Chrysler
caused by Lampe Dodge‟s acquisition, is missing. It was Groppetti who purchased the
Brian Ross Dodge-Chrysler assets, not Lampe Dodge. Thus, Lampe Dodge did not
contribute to Brian Ross Dodge-Chrysler‟s demise.
        Keller Fishback also could not proceed with the asbestos action on the theory that
Lampe Dodge impliedly assumed liability for asbestos related injuries. The Agreement
under which Lampe Dodge acquired the business assets expressly excluded the transfer
of liabilities.
        Keller Fishback additionally argues that the trial court‟s denial of Lampe Dodge‟s
motion for summary judgment establishes that the successor liability claim was arguably
tenable. While denial of a defendant‟s summary judgment motion may provide evidence
that a suit does not totally lack merit, a denial on procedural or technical grounds, rather
than for the existence of triable issues of material fact, says nothing regarding the
potential merit of the action and thus does not establish probable cause for its initiation.
(Wilson, supra, 28 Cal.4th at p. 823.)



                                             13.
       Here, Lampe Dodge‟s summary judgment motion was denied because the
Agreement was not authenticated and Lampe Dodge had not met its initial burden on the
dates of exposure at the dealership, not because there were triable issues of material fact.
Thus, the denial of Lampe Dodge‟s summary judgment motion does not demonstrate that
Keller Fishback had probable cause to prosecute the asbestos action.
       Therefore, viewing the evidence in the light most favorable to Lampe Dodge,
Lampe Dodge‟s claim that Keller Fishback lacked probable cause to continue to
prosecute the asbestos action has at least minimal merit.

      c.     Lampe Dodge made a prima facie showing that Keller Fishback acted
with malice.
       The malice element goes to the defendant‟s subjective intent in initiating the prior
action or continuing to prosecute the prior action after becoming aware that it lacks
probable cause. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407; Daniels v. Robbins
(2010) 182 Cal.App.4th 204, 226 (Daniels).) “For purposes of a malicious prosecution
claim, malice „is not limited to actual hostility or ill will toward the plaintiff. Rather,
malice is present when proceedings are instituted primarily for an improper purpose.‟”
(Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407.) Liability can attach based on
attitudes that range from “„“open hostility to indifference.”‟” (Cole v. Patricia A. Meyer
& Associates, APC (2012) 206 Cal.App.4th 1095, 1113-1114 (Cole).)
       Malice may be inferred from circumstantial evidence, such as the defendants‟ lack
of probable cause, supplemented with evidence of an improper purpose. (Cole, supra,
206 Cal.App.4th at p. 1114.) Hallmarks of an improper purpose include evidence that the
plaintiff does not believe his claim may be held valid and that the proceeding was
initiated for the purpose of forcing a settlement unrelated to the merits of the claim.
(Ibid.) Further, although lack of probable cause standing alone does not support an
inference of malice, malice may still be inferred when a party either knowingly brings an



                                              14.
action without probable cause or continues to prosecute an action after becoming aware
that the action lacks probable cause. (Daniels, supra, 182 Cal.App.4th at p. 226.)
       Here, the individual Keller Fishback attorneys filed declarations stating that they
harbored no hostility or ill will toward Lampe Dodge, that they believed their actions
were reasonable, appropriate and within the applicable standard of care, and that they at
all times believed their client had a viable and legitimate claim for damages against
Lampe Dodge. However, parties rarely admit to an improper motive. (Daniels, supra,
182 Cal.App.4th at p. 225.) Accordingly, we must determine if there is circumstantial
evidence, and inferences that can be drawn from that evidence, of malice. (Ibid.)
       On the first day of trial, Keller Fishback conceded that they had no evidence of
direct liability against Lampe Dodge but, rather, wanted to proceed on a successor in
interest theory. But, over 17 months earlier, the trial court questioned the viability of
such a successor liability theory. The court noted that, based on the Agreement between
Lampe Dodge and Groppetti, Lampe Dodge “couldn‟t possibly have any liability here.”
Keller Fishback responded that they had not seen the attachments to the Agreement and
therefore could not yet make that determination. The court then observed that the
missing exhibits, i.e., lists describing the parts and accessories inventory, work in
progress sublet repairs, the fixed assets, the vehicle deposits, and the lease agreement,
had nothing to do with Lampe Dodge‟s liability to Keller Fishback‟s clients. The court
questioned whether anything in those documents “could possibly be pertinent.”
Thereafter, counsel for Lampe Dodge discovered that those exhibits had never been
prepared. Nevertheless, despite the trial court‟s input, Keller Fishback did not dismiss
Lampe Dodge from the case.
       From this evidence it can be inferred that Keller Fishback continued to prosecute
the asbestos action after becoming aware that the action lacked probable cause. Thus,
viewing the evidence in the light most favorable to Lampe Dodge, Lampe Dodge‟s claim



                                             15.
that Keller Fishback acted with malice has at least minimal merit. (Soukup, supra, 39
Cal.4th at p. 291.)
       In sum, in opposing the anti-SLAPP motion, Lampe Dodge met its burden of
showing that its malicious prosecution action had sufficient merit to survive the motion.
By our conclusion, we express no opinion on the ultimate merit of Lampe Dodge‟s
claim.2
                                     DISPOSITION
       The order is affirmed. Costs on appeal are awarded to respondent.


                                                                _____________________
                                                                              LEVY, J.
WE CONCUR:


_____________________
WISEMAN, Acting P.J.


 _____________________
KANE, J.




2      Respondent‟s motion for judicial notice is denied.



                                           16.
