Filed 8/27/14 SFL Paramount v. Friendly Village Mobile Associates CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


SFL PARAMOUNT, LLC,                                                  B249964

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NC058481)
         v.

FRIENDLY VILLAGE MOBILE
ASSOCIATES, LLC,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Michael P.
Vicencia, Judge. Affirmed.
         Edgerton & Weaver, Chad E. Weaver and Jacquelyn M. Mohr for Defendant and
Appellant.
         Smith, Mark T. Kearney and Steven C. Smith for Plaintiff and Respondent.
                                   _______________________________
       Defendant Friendly Village Mobile Associates, LLC (Friendly Village) appeals
from the trial court’s order denying its anti-SLAPP motion under Code of Civil
                            1
Procedure section 425.16 in this malicious prosecution action brought by SFL
Paramount, LLC (SFL). We find, although this action arises from protected activity
within the meaning of the anti-SLAPP statute, SFL has demonstrated its malicious
prosecution action has at least the minimal merit required to demonstrate a probability of
prevailing and to survive the anti-SLAPP motion. Accordingly, we affirm.
                                      BACKGROUND
The Parties and Their Dispute
       Friendly Village and SFL owned neighboring parcels of land in the City of Long
Beach, located on a site formerly used as a garbage dump. Friendly Village used its
property to operate a mobile home park, containing 182 mobile homes, two apartment
buildings, a clubhouse and a pool. Twenty-four of the mobile homes were situated along
the southern border of Friendly Village’s property, adjacent to SFL’s property. The
mobile home park was built on top of the garbage dump. Thus, the soil underneath was
filled with refuse.
       When SFL acquired the property next to the mobile home park in 2005, SFL’s
property was a vacant lot. The prior owners had planned to turn the property into a self-
storage facility. SFL continued with this plan. SFL decided the appropriate way to
develop the property—and to promote stability and avoid subsistence problems at the
property—was to grade and excavate the property by making vertical cuts in the soil,
scraping off the top soil, removing the garbage under the top soil, and removing the waste
from the property. Before beginning the work, SFL had visited Friendly Village’s
property and observed the effects of building on top of garbage: sinking land (or
settlement) and cracking concrete throughout the mobile home park.
       Beginning in 2004, the prior owners and then SFL performed the grading and
excavation work under permits obtained from several governmental agencies, including

       1
           Further statutory references are to the Code of Civil Procedure.

                                               2
the City of Long Beach, County of Los Angeles and Air Quality Management District
(AQMD). Before the work began SFL provided its neighbors, including Friendly
Village, with notice of the work and the dates of public hearings regarding the work.
Representatives of Friendly Village attended the hearings. Friendly Village did not raise
objections regarding the work at these hearings. Nor did Friendly Village complain about
the grading and excavation work which SFL completed prior to late 2007.
        On December 28, 2007, Friendly Village’s counsel sent a letter to SFL’s counsel,
listing damage to its property and the mobile homes it contended was caused by SFL’s
grading, excavation and construction work on the adjacent property. In pertinent part,
this letter states:
        “The vibration of your construction equipment has caused substantial damage to
homes and infrastructure in my client’s mobilehome park, including, but not limited to,
the common area, settling of mobilehomes, cracks in the mobilehomes of tenants, cracks
in the roadway, [fissures] in the ground, etc. Along the southerly border of the property,
about 15 to 18 feet in from the property line, a large [fissure] has occurred running in an
east west direction. It is apparent that this [fissure] is as a result of the grading and
construction activities on your property, and in fact, the [fissure] appears to be created by
land separating and moving in a southerly direction, i.e., towards your property. At one
point during your construction project, the vibration (your construction equipment busted
a water line in the mobilehome park). We suspect that vibration may have been the cause
of this, but, in any event, the breaking of the water line was caused by you or your
contractor’s activities. My client in fact hired plumbers and fixed that break in the water
line. On Christmas eve, an SCE [Southern California Edison] electrical truck line was
severed on your property, and apparently, either [as] a result of the severance, or as a
result of your contractor’s efforts to repair same without SCE presence, transformers in
my client’s mobilehome park blew, causing the families in my client’s mobilehome park
to be without electricity from Christmas eve, through Christmas day, into Christmas
night. It was not before Christmas night that we were finally able to get trucks to fix the
problem.

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       “If all the foregoing were not bad enough, on the 26th, rather than ceasing the
grading and construction activities until appropriate analysis could be undertaken to
understand what needed to be done to stabilize the situation, one of your back hoes
crossed the property line into our property, breaking our water main, causing numerous
of our residents to be without water for a considerable period of time, and further causing
substantial water inundation in and around the area affected.”
       In this letter, Friendly Village’s counsel requested SFL reimburse Friendly Village
and the mobile home residents “for all costs associated with these identified problems,”
including “‘resetting’” and “‘releveling’ of the homes as necessary.” Counsel also
demanded SFL “cease all grading, excavation and construction activities until we can
determine the problems at the site, until we can clearly document the causes of the
problems and concerns at the site, and until we can determine the appropriate measures to
be taken to ensure that when construction, grading, and/or excavation resumes at your
site, it will not undermine the integrity of my client’s property, or cause damage to my
client or my client’s residents’ property.”
       On December 29, 2007, an engineering geologist from GeoSoils, Inc. (GSI)
“performed a visual observation of the south property line area of [Friendly Village],” at
Friendly Village’s request, as stated in a three-page report issued by GSI on January 4,
2008. GSI did not perform any “subsurface exploration.” SFL did not grant GSI
“permission to enter the offsite grading area, to evaluate the vertical cut slopes.” After its
visual inspection, GSI concluded:
       “Based on our observations, it is clear that distress to the site is the direct result of
failures within the offsite vertical cut, and in the case of the water line break at the
storage area, excavation within the [Friendly Village] property with a backhoe. The
distress to the slope has the potential for damaging water, gas, and electrical lines in the
utility corridor along the south fence. There is a very real potential for ruptured gas lines
and fire triggered by broken power lines which now lie on the ground in the utility meter
and control area.



                                               4
       “It is apparent that the slope failures, and many of the ground cracks, which were
observed up to 6 feet inside the [Friendly Village] south property line fence, are the direct
result of excavating near vertical cuts during the offsite grading. Further, such failures
need not have occurred. Construction methods are available which allow construction
along property lines with no, or only very minor distress, to existing properties and
structures. Soldier pile, and slot-cut wall construction methods are commonly used
procedures that could have prevented the observed distress. Continued distress and or
failure of the slope should be expected unless mitigation measures are implemented by
the grading contractor.”
       GSI also noted in its report it “was previously called to the site in May of 2006 to
observe the settlement around pile foundations in the clubhouse and pool area of the
[mobile home] park.” Friendly Village does not contend SFL’s grading and excavation
work caused the settlement in these areas of its property.
       On January 2, 2008, SFL’s counsel responded to the December 28, 2007 letter
from Friendly Village’s counsel, explaining why SFL did not believe it was responsible
for the problems listed in the letter. Counsel asserted the Christmas Eve electrical outage
was not related to SFL’s project as SFL “had no workers on site that day.” According to
SFL’s counsel, Southern California Edison (SCE) informed SFL it “had a problem in
[the] lines servicing” Friendly Village.
       In the letter, SFL’s counsel acknowledged a backhoe driver nicked the water main
“while attempting to bury the conduit for the electrical line.” Counsel explained SCE had
asked SFL “to speed up the placement of conduit” so SCE could pull the electrical lines
servicing Friendly Village out of the refuse and place new lines in conduit to help avoid
future outages like the one that occurred on Christmas Eve. Unbeknownst to SFL,
Friendly Village’s water main was located on SFL’s property. According to SFL’s
counsel, SFL’s “contractor immediately clamped the leak so that there was no long term
loss of water. The clamp was temporary and water pressure was lost on the job for no
more than 15 minutes. Thereafter, the contractor had a plumber come and replace the
nicked pipe. Thereafter, [Friendly Village] had another plumber come out and put in

                                              5
valves on one side or the other of the repair job to accommodate his desire to turn off the
water main if he wanted to do so. That would be unrelated to the 15 minutes of downed
water time.”
       SFL’s counsel also asserted in the letter that the settling of, and cracks in, the
mobile homes on Friendly Village’s property was “a result of the condition of the soil
upon which the trailers are located,” not a result of SFL’s project. Simply put, the mobile
homes were “placed on trash.” While disclaiming responsibility for the damage, counsel
stated SFL had “work[ed] with the homeowners immediately adjacent to [SFL’s]
property [who had] made complaints to [SFL] . . . to try to level their trailers.” SFL
expressed a willingness to continue to work with Friendly Village to determine if SFL
should assist in releveling.
       SFL’s counsel explained in the letter that SFL expected the grading phase of the
project to last for 30 more days. SFL believed the work was being performed in
accordance with the permits issued by the County of Los Angeles and the City of Long
Beach and “obligations which are generally required by law.”
Underlying Action
       On January 8, 2008, Friendly Village filed the underlying action against SFL,
asserting causes of action for injunctive relief, trespass, nuisance, negligence, conversion
and negligent interference with prospective economic advantage (Case No. NC050697).
Friendly Village alleged SFL’s grading and excavation work caused “damage to the soils,
hardscape and structures” at Friendly Village’s property, including fissures, cracks, and a
sinkhole 18 inches in diameter and three feet deep at the property line. Friendly Village
also alleged SFL’s construction work caused (1) a water pipe to break, resulting in
flooding of Friendly Village’s property and loss of water supply, (2) an electrical outage
at the mobile home park, resulting from a fire in a transformer on SFL’s property, (3) a
water main to break, and (4) “significant dirt, noise and vibration.” In its conversion
cause of action, Friendly Village asserted SFL “wrongfully interfered with its possession
and control of the piping and utilities” located on its property. In its negligent
interference with prospective economic advantage cause of action, Friendly Village

                                              6
alleged SFL interfered with its “prospective business advantage in operating a
mobilehome park and in conducting business with its tenants with whom it has a
continuing relationship.”
       Friendly Village sought an injunction requiring SFL “to cease and desist all
construction work, including grading and excavation work, which continues to damage
[Friendly Village]’s property,” and “to maintain its property and refrain from causing
damage to [Friendly Village’s] property or interfering with [Friendly Village]’s business
and economic relationship with its tenants.” Friendly Village also sought an award of
punitive damages against SFL.
       On January 9, 2008, Friendly Village filed an ex parte application for a temporary
restraining order prohibiting SFL from performing further construction work until after
the trial court held a hearing on Friendly Village’s request for a preliminary injunction.
The court did not issue the temporary restraining order.
       On or about January 10, 2008, the parties and their experts met at the site to
inspect the properties and discuss their dispute. Although SFL already had installed some
shoring along the property line to support the vertical cuts it had made during its grading
and excavation efforts, Friendly Village did not believe the shoring was adequate and
asserted the lack of adequate shoring was causing the settlement and cracking along the
property line. SFL did not believe it was required to provide any shoring at all, as no
governmental entity had required it. Nonetheless, SFL agreed to install even more
shoring along the property line, wherever the cut was four feet high or greater, at a cost to
SFL of $400,000. SFL installed the additional shoring before trial.
       About 10 days before trial, SFL learned Friendly Village was going to seek
$5,000,000 in damages to construct a shoring wall along the property. Friendly Village
continued to assert the shoring SFL had installed was inadequate. Moreover, Friendly
Village anticipated SFL might remove the temporary shoring it had installed. At oral
argument in this appeal, Friendly Village conceded it knew before trial commenced that
SFL had secured a permit to build a permanent retaining wall along the property line.
Also before trial, SFL informed Friendly Village the permanent retaining wall would

                                             7
serve as the rear wall of the buildings SFL was constructing on its property. In
opposition to the anti-SLAPP motion, SFL presented evidence demonstrating, without
construction of the permanent retaining wall, there would be no storage facility—the sole
planned use for SFL’s property.
       Trial commenced on February 2, 2009. After Friendly Village’s opening
statement, the trial court granted SFL’s motion for nonsuit as to Friendly Village’s
conversion cause of action. After SFL presented its defense case, the court granted
nonsuit as to Friendly Village’s cause of action for negligent interference with
prospective economic advantage, and entered directed verdict on Friendly Village’s
trespass and nuisance causes of action. Thus, the only cause of action that went to the
jury was negligence, and the jury found in favor of SFL on that cause of action. After the
jury returned its verdict, the court heard evidence on Friendly Village’s cause of action
for injunctive relief, which the court had previously bifurcated. The court denied the
request for a permanent injunction.
       At trial in the underlying action, Friendly Village presented statements supporting
two items of damages, a plumbing invoice in the amount of $786.05 for work on the
nicked water line, and a $4-5 million estimate for building a retaining wall along the
southern property line. SFL’s witnesses conceded its construction work caused two or
three small fissures on Friendly Village’s side of the property line. The fissures were
filled in with dirt and repaired at no cost to Friendly Village. SFL’s witnesses denied the
fissures had caused any damage to Friendly Village’s property.
       Friendly Village appealed the judgment in the underlying action, contending “the
trial court improperly limited the evidence in support of its case when the trial court
erroneously granted five motions in limine.” (Friendly Village Mobile Associates v. SFL
Paramount (Dec. 29, 2010, B216049) [nonpub. opn.], p. 2.) Division Five of this
appellate district concluded the trial court did not err and affirmed the judgment.
Present Action
       On December 28, 2012, SFL filed this malicious prosecution action against
Friendly Village, based on Friendly Village’s filing and continued pursuit of the

                                              8
underlying action. In its complaint, SFL asserts: “Prior to and during the litigation [in
the underlying action], it was patently clear that the problems with the Mobile Home Park
had been occurring long before SFL began construction work and that [Friendly Village]
knew that the problems could not have been caused by SFL. [Friendly Village] saw an
opportunity to try to collect money from SFL for damage to the Mobile Home Park that
existed before SFL began construction.”
       On March 29, 2013, Friendly Village filed an answer to the complaint, and also
filed an anti-SLAPP motion under section 425.16, asking the trial court to strike SFL’s
complaint. In the motion, Friendly Village argued SFL’s malicious prosecution cause of
action arises from protected activity within the meaning of the anti-SLAPP statute, and
SFL cannot demonstrate a probability of prevailing on the cause of action because it
cannot show Friendly Village brought the prior action without probable cause and with
malice.
       In its written opposition to the anti-SLAPP motion, SFL conceded its malicious
prosecution cause of action arises from protected activity but urged the trial court to deny
the anti-SLAPP motion because it can demonstrate a probability of prevailing on that
cause of action. SFL argued, “The fact that SFL’s construction may have caused a
couple of minor problems common with any construction project, does not justify a
$5,000,000.00 lawsuit against SFL for damage that [Friendly Village] knew SFL had not
caused.”
       On May 29, 2013, the trial court heard oral argument on Friendly Village’s anti-
SLAPP motion, and issued an order denying the motion and ruling on SFL’s objections
to Friendly Village’s evidence. On appeal, Friendly Village does not challenge the ruling
sustaining some of SFL’s evidentiary objections.
                                      DISCUSSION
Standard of Review
       “Review of an order granting or denying a motion to strike under section 425.16 is
de novo.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3
(Soukup).) “We consider ‘the pleadings, and supporting and opposing affidavits . . . upon

                                             9
which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, 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 the defendant’s evidence
only to determine if it has defeated that submitted by the plaintiff as a matter of law.’”
(Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
Section 425.16
       Under section 425.16, a party may move to dismiss “certain unmeritorious claims
that are brought to thwart constitutionally protected speech or petitioning activity.”
(Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421.) Section 425.16
provides: “A cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).)
       In evaluating an anti-SLAPP motion, we conduct a two-step analysis. First, we
must decide whether the defendant “has made a threshold showing that the challenged
cause of action arises from protected activity.” (Taheri Law Group v. Evans (2008) 160
Cal.App.4th 482, 488.) For these purposes, protected activity “includes: (1) any written
or oral statement or writing made before a legislative, executive, or judicial proceeding,
or any other official proceeding authorized by law, (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)
       Second, if the defendant makes this threshold showing, we decide whether the
plaintiff “has demonstrated a probability of prevailing on the claim.” (Taheri Law Group

                                                10
v. Evans, supra, 160 Cal.App.4th at p. 488.) To satisfy its burden, 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.’” (Soukup, supra, 39 Cal.4th at p. 291.) The trial court must
deny an anti-SLAPP motion if “‘“the plaintiff presents evidence establishing a prima
facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff.
[Citation.]”’” (Robinzine v. Vicory, supra, 143 Cal.App.4th at p. 1421.) At this stage of
the proceedings, the plaintiff “need only establish that his or her claim has ‘minimal
merit’ [citation] . . . .” (Soukup, supra, 39 Cal.4th at p. 291.) Although “‘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.’”
(Ibid.)
Malicious Prosecution Cause of Action
          SFL does not dispute its malicious prosecution cause of action arises from
protected activity within the meaning of the anti-SLAPP statute. (See Jarrow Formulas,
Inc. v. LaMarche (2003) 31 Cal.4th 728, 736-741.) The issue on appeal is whether SFL
has demonstrated a probability of prevailing on its malicious prosecution claim.
          To establish a malicious prosecution cause of action, a plaintiff must demonstrate
a prior action “‘(1) was commenced by or at the direction of the defendant and was
pursued to a legal termination in [its], plaintiff’s, favor [citations]; (2) was brought
without probable cause [citations]; and (3) was initiated with malice [citations].’
[Citations.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.) A
party may be held liable on a malicious prosecution cause of action not only for
commencing an action without probable cause, but also for “continuing to prosecute a
lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958,
973.)
          Friendly Village argues SFL cannot demonstrate a probability of prevailing on its
malicious prosecution claim because it cannot establish Friendly Village brought the

                                               11
prior action without probable cause and with malice. Friendly Village does not dispute
SFL can establish the first element of its malicious prosecution claim—that Friendly
Village commenced the underlying action and pursued that action until it terminated in
SFL’s favor.
       As explained more fully below, we find SFL has presented evidence establishing a
prima facie case of malicious prosecution and if that evidence is credited by the trier of
fact a judgment in favor of SFL will result. Friendly Village’s evidence does not defeat
SFL’s attempt to establish evidentiary support for its malicious prosecution claim as a
matter of law. (See Soukup, supra, 39 Cal.4th at p. 291.)
Lack of probable cause
       “Probable cause is a low threshold designed to protect a litigant’s right to assert
arguable legal claims even if the claims are extremely unlikely to succeed. ‘[T]he
standard of probable cause to bring a civil suit [is] equivalent to that for determining the
frivolousness of an appeal [citation], i.e., probable cause exists if “any reasonable
attorney would have thought the claim tenable.” [Citation.] This rather lenient standard
for bringing a civil action reflects “the important public policy of avoiding the chilling of
novel or debatable legal claims.” [Citation.] Attorneys and litigants . . . “‘have a right to
present issues that are arguably correct, even if it is extremely unlikely that they will
win . . . .’” [Citation.] Only those actions that “‘any reasonable attorney would agree
[are] totally and completely without merit’” may form the basis for a malicious
prosecution suit. [Citation.]’ [Citation.]” (Plumley v. Mockett (2008) 164 Cal.App.4th
1031, 1047-1048.) “[A] malicious prosecution suit may be maintained where only one of
several claims in the prior action lacked probable cause” or “where most but not all of the
amount sought [in damages] in the prior action was claimed without probable cause.”
(Citi-Wide Preferred Couriers, Inc. v. Golden Eagle Ins. Corp. (2003) 114 Cal.App.4th
906, 914.)
       SFL presented evidence demonstrating: The mobile home park on Friendly
Village’s property was built on top of a garbage dump. The effects of building on top of
garbage—settlement and cracking concrete—were open and obvious throughout Friendly

                                              12
Village’s property before SFL began grading and excavating the adjacent property. For
example, water hydrants on Friendly Village’s property stuck out of the ground two to
three feet or more because the ground underneath the hydrants had settled. The mobile
homes near the southern property line Friendly Village shared with SFL had a sewer line
running underneath them which pushed the center of those homes up as the soil around
the sewer line settled or dropped, causing the concrete to crack.
       SFL performed the grading and excavation work on its property in accordance
with permits issued by several governmental agencies including the City of Long Beach,
County of Los Angeles and the AQMD. None of the permits required SFL to install
shoring or a retainer wall along the property line. After Friendly Village complained
about the lack of shoring during construction, however, SFL installed at its own expense
temporary shoring along the entire property line except where the cut was less than four
feet. Minor construction problems SFL caused on Friendly Village’s property, such as
two or three small fissures along the property line, were repaired at no cost to Friendly
Village with no lingering damage to Friendly Village’s property.
       As SFL’s experts testified at trial in the underlying action, all of the mobile homes
on Friendly Village’s property were outside the “zone of influence” of SFL’s grading and
excavation work, therefore the work could not damage the mobile homes even if there
were a total and complete slope failure, which did not occur. Nonetheless, before trial,
SFL offered to pay each homeowner along the property line $10,000 to pay for the re-
leveling of the home and to landscape the back of the home, at a total cost to SFL of
approximately $125,000. Friendly Village rejected SFL’s offer.
       Although SFL conveyed to Friendly Village the reasons its claims lacked merit,
Friendly Village filed the underlying action and continued to pursue it, seeking
$5,000,000 in damages. As evidence, Friendly Village produced a plumbing invoice for
$786.05 and a $4-5 million estimate to build a retaining wall along the southern property
line. Friendly Village asserted, to build the wall, it would need to temporarily relocate
the mobile homes along the property line, remove the garbage from the soil, erect the
retaining wall, and then replace the mobile homes. As discussed above, Friendly Village

                                            13
concedes it knew before trial commenced that SFL had obtained a permit to build a
permanent retaining wall along the property line. Moreover, before trial, SFL informed
Friendly Village the permanent retaining wall would serve as the rear wall of the
buildings SFL was constructing on its property.
       Based on the evidence SFL presented in opposition to the anti-SLAPP motion, we
find SFL has shown a probability of proving Friendly Village filed the underlying action
and/or continued to pursue it without probable cause. SFL presented evidence
demonstrating Friendly Village knew the problems for which it sought to recover
damages from SFL in the underlying action—damage to the soils, hardscape and
structures at Friendly Village’s property—were the result of the mobile home park being
built on refuse, not SFL’s grading and excavation work. To the extent Friendly Village
had sustained minor damage for which SFL was responsible—e.g., the $786.05 plumbing
invoice—SFL still presented evidence demonstrating the vast majority of Friendly
Village’s damages claim was brought without probable cause. By the time the case went
to the jury, Friendly Village was asking for $4-5 million to build a permanent retaining
wall when it knew before trial even commenced that SFL had obtained a permit to build a
permanent retaining wall, planned to build the rear walls of the storage facility as a
permanent retaining wall, and had installed a temporary retaining wall at a cost of
$400,000.
       In support of its anti-SLAPP motion, Friendly Village did not present evidence
which defeats SFL’s attempt to establish evidentiary support for the lack of probable
cause element as a matter of law. We acknowledge Friendly Village presented
competing evidence (e.g., the three-page report from GeoSoils, Inc., discussed above,
concluding based upon a visual inspection that “distress to the site” was caused by SFL’s
grading and excavation work). But we do not “‘weigh the credibility or comparative
probative strength of competing evidence’” in deciding an anti-SLAPP motion. (Soukup,
supra, 39 Cal.4th at p. 291.)
       Friendly Village argues its reliance on the advice of counsel defeats SFL’s attempt
to establish its malicious prosecution claim as a matter of law. “‘Probable cause may be

                                             14
established by the defendants in a malicious [prosecution] proceeding when they prove
that they have in good faith consulted a lawyer, have stated all the facts to him, have been
advised by the lawyer that they have a good cause of action and have honestly acted upon
the advice of the lawyer.’ [Citations.]” (DeRosa v. Transamerica Title Ins. Co. (1989)
213 Cal.App.3d 1390, 1397-1398.) SFL has presented evidence indicating Friendly
Village knew before filing the underlying action that the claimed problems at its property
were not the result of SFL’s grading and excavation work, but the pre-existing condition
of the soil on which the mobile home park was built. Again, Friendly Village presented
competing evidence (e.g., declarations from a principal of Friendly Village and counsel
for Friendly Village in the underlying action supporting the advice of defense counsel).
On the record before us, however, we cannot find as a matter of law that Friendly Village
consulted its lawyers in good faith and honestly acted upon the advice of its lawyers in
filing and continuing to pursue the underlying action.
       Friendly Village also argues the denial of SFL’s motion for nonsuit, made at the
conclusion of Friendly Village’s opening statement, establishes probable cause as a
matter of law. Friendly Village cites cases indicating the denial of a motion on the merits
(summary judgment or nonsuit), after a presentation of evidence, establishes probable
cause as a matter of law. (See, e.g., Hutton v. Hafif (2007) 150 Cal.App.4th 527, 546-
547.) Here, the trial court partially denied SFL’s motion for nonsuit before either party
had presented any evidence. This did not establish probable cause as a matter of law
because it did not show Friendly Village could substantiate its claims. (See ibid.) In any
event, the trial court granted SFL’s motion for nonsuit as to the cause of action for
conversion at the conclusion of Friendly Village’s opening statement. As discussed
above, “a malicious prosecution suit may be maintained where only one of several claims
in the prior action lacked probable cause [citation] . . . .” (Citi-Wide Preferred Couriers,
Inc. v. Golden Eagle Ins. Corp., supra, 114 Cal.App.4th at p. 914.)
Malice
       “For purposes of a malicious prosecution tort, malice relates to the subjective
intent or purpose with which the defendant acted in initiating the prior action.” (Padres

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L.P. v. Henderson (2003) 114 Cal.App.4th 495, 522.) To establish malice, the plaintiff
must show the defendant “had an improper motive in bringing the prior action[].” (Ibid.)
“Although a lack of probable cause, standing alone, does not support an inference of
malice, malice may still be inferred when a party knowingly brings an action without
probable cause.” (Id. at p. 522.) Malice also may “be inferred when a party continues to
prosecute an action after becoming aware that the action lacks probable cause.” (Daniels
v. Robbins (2010) 182 Cal.App.4th 204, 226.)
       Settlement discussions may be used in a malicious prosecution action to show that
the plaintiff had an improper motive in bringing or continuing to litigate the prior action.
(See HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 219.) An
improper motive may be shown where “‘the proceedings are initiated for the purpose of
forcing a settlement which has no relation to the merits of the claim.’ [Citation.]”
(Albertson v. Raboff (1956) 46 Cal.2d 375, 383.)
       As discussed above, in opposition to the anti-SLAPP motion SFL presented
evidence indicating Friendly Village filed and continued to pursue the underlying action,
seeking damages for problems at its property it knew were not caused by SFL’s grading
and excavation work. SFL tried to work with Friendly Village, installing shoring along
the property line at a cost to SFL of $400,000, even though it did not believe the shoring
was necessary or required, and offering to pay a total of $125,000 to the homeowners
along the property line to re-level and landscape their homes, even though it did not
believe its work had caused any damage to their homes. Friendly Village rejected SFL’s
offer, instead seeking $5,000,000 in the underlying action. At the time the case went to
the jury, Friendly Village claimed it was asking for $5,000,000 to build a permanent
retaining wall although it knew before trial that SFL planned to build a permanent
retaining wall.
       Based on the evidence SFL presented, we find SFL has shown a probability of
proving Friendly Village filed the underlying action with malice. Friendly Village did
not present evidence which defeats SFL’s attempt to establish evidentiary support for the
malice element as a matter of law.

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       The trial court did not err in denying Friendly Village’s anti-SLAPP motion. SFL
established its malicious prosecution cause of action has at least the minimal merit
required to demonstrate a probability of prevailing and survive an anti-SLAPP motion.
(Soukup, supra, 39 Cal.4th at p. 291.)
                                     DISPOSITION
       The order is affirmed. Respondent is entitled to recover costs on appeal.
       NOT TO BE PUBLISHED.




                                                        CHANEY, Acting P. J.

We concur:



              JOHNSON, J.



              MILLER, J.*




       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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