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Murray v. Ney

Murray v. Ney
10/13/08



Murray v. Ney



Filed 9/30/08 Murray v. Ney CA2/8











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION EIGHT



JEAN PIERRE MURRAY,



Plaintiff and Appellant,



v.



PHILIPPE NEY et al.,



Defendants and Respondents.



B198224



(Los Angeles County



Super. Ct. No. SC090208)



APPEAL from a judgment of the Superior Court of Los Angeles County. Richard Neidorf, Judge. Affirmed.



Michael J. Perry for Plaintiff and Appellant.



Law Offices of Perry Roshan-Zamir and Perry Roshan-Zamir for Defendants and Respondents.



_______________________________



Jean Pierre Murray sued Philippe Ney, Jacqueline (Keline) Howard, and Attorney Michael Blaha for malicious prosecution arising out of Ney and Howards previous contract and fraud action against Murray. Ney and Blaha filed a special motion to strike pursuant to Code of Civil Procedure section 425.16.[1] Murray appeals from the trial courts order granting the motion. We conclude that Murray did not establish a probability of prevailing on his malicious prosecution claim and therefore affirm the trial courts order.



FACTUAL AND PROCEDURAL BACKGROUND



We take much of the background from the unpublished opinion issued by Division Three of this court in the proceeding underlying Murrays malicious prosecution action. (Ney v. Murray (Dec. 1, 2005, B174255) [nonpub. opn.].)



I. The Underlying Action



A. Background



The underlying case (the Surf Channel action) stems from a dispute about the ownership interests in the Surf Channelcable programming devoted to surfing and other sports. In 1998, Cyril Viguier and Stephane Attia formed Surf Channel, LLC and other related entities (collectively Surf Channel) for the Surf Channel project, which was already in development. Ney, a film editor, provided editing services for the Surf Channel project through his employer, and in 1998, Ney began working for Surf Channel directly. Ney negotiated with Viguier and Attia for an equity interest in Surf Channel. Although nothing was reduced to writing, Ney believed he, Viguier, and Attia had in fact agreed that Ney would have an equity interest in Surf Channel. Ney provided editing services in reliance on that agreement.



Jacqueline Howard was in a similar position. Howard got involved with Surf Channel in 1997, and for a time Surf Channels production activities took place in her office and home. Howard also believed that she had an agreement for an equity interest in Surf Channel.



In 1998, Jean Pierre Murray invested $200,000 in Surf Channel through Carillo Investments, an entity in which he held an interest. Carillo received a one-third membership interest in Surf Channel in return. On the connection between Murray, Ney, and Howard, Division Three of this court explained:



Howard testified that Murray made no promises to her about equity in a Surf Channel entity. Nor did Howard ever claim to Murray that she had an equity interest in Surf Channel. Likewise, Ney never received a signed document from Murray indicating that Ney held an equity interest in Surf Channel, and Murray never made a promise nor ever entered into an oral or written agreement with Ney about Neys interest in Surf Channel. Nor did Ney ever have a conversation with Murray about how he was being compensated for his editing services for Surf Channel. Still, Ney believed that Murray was aware of Neys claim to equity because not only was Murray in charge of finances, but he was with Viguier and Attia on a daily basis.



In March 1999, Murray sold his interest in Surf Channel for $300,000, to a group of investors headed by a friend of Murrays father. Murrays involvement with Surf Channel ended with the buyout of his interest, and he was unaware of any other transaction involving Surf Channel assets. Viguier and Attia also transferred their interests in Surf Channel to the same group of investors, and they received a 25 percent interest in a new company the investors createdSurf Channel Delaware.



Division Three further summarized the facts: Murray did not learn of Viguiers and Attias interest in the new company until Viguier told him after the sale. The following month, April 1999, Viguier and Attia entered into an agreement with Murray in which the two agreed to convey to Murray a five percent interest each in the net profits of Surf Channel Delaware, provided Murray complied with the terms of the agreement and only in the event the Delaware company were sold to a third party or went public and Viguier and Attia received distributions of their share of the net profits.



Neither Ney nor Howard received anything in the sale of Surf Channel.



B. Procedural History



In 2000, Ney retained Michael Blaha and brought a contract and fraud action against Surf Channel, Murray, and 11 other defendants. Later, Howard also filed suit, and eventually the two actions were consolidated. Ney and Howard alleged that the defendants had breached oral and written contracts with them in connection with their equity interests; breached the covenant of good faith and fair dealing; defrauded Ney and Howard by falsely representing that they would have ownership interests in Surf Channel; and fraudulently transferred Surf Channels interests. Ney and Howard also asserted claims for quantum meruit against the defendants, including Murray. Both actions asserted that Murray was an alter ego of Surf Channel.



In May 2003, Murray moved for summary judgment or, in the alternative, summary adjudication. Murray asserted that all of his alleged liability flowed from the complaints alter ego allegations except for the fraudulent transfer cause of action. Murray argued that Ney could not show that he was subject to alter ego liability, and that Ney could not establish a fraudulent transfer claim because there was no evidence that Murray ever transferred any Surf Channel assets or had any relationship to Surf Channel-Delaware. The trial court denied the motion, ruling that triable issues of fact existed as to whether alter ego liability should be imposed on Murray, and whether Murray participated in a fraudulent transfer of assets.



In December 2003, Ney and Howard proceeded to trial with claims against Murray under direct liability and alter ego theories. Before trial, Ney and Howard dismissed their fraudulent transfer claims as the result of a settlement with the investor group. Division Three summarized the proceedings at trial:



The case was tried before a jury except for the alter ego allegations. At the close of plaintiffs case, Murray moved for nonsuit of all four claims brought by both plaintiffs, other than the alter ego claims. Plaintiffs stipulated to nonsuit of the claims for breach of contract and of the implied covenant of good faith and fair dealing. The court granted nonsuit according to the stipulation, and then granted Murrays motion for nonsuit of the fraud and quantum meruit claims. Murray remained a defendant with respect to the alter ego claim.



Turning to Viguier and Surf Channel, the jury returned a verdict finding them liable for fraud and assessing compensatory and punitive damages. Before judgment was entered against Viguier and Surf Channel, plaintiffs dismissed the two from the action.



The court then turned to the alter ego allegations. . . .  [T]he court ruled that plaintiffs had failed to carry their burden to show that alter ego liability should be imposed on Murray. The court found that declining to find alter ego would not work an injustice. Judgment was entered in favor of Murray and against plaintiffs.



Ney and Howard appealed. Although they conceded that Murray had not made any representations to either of them about their equity interests, they defended their fraud claims based on a rule explained in McClung v. Watt (1922) 190 Cal. 155, 161 (McClung): one who accepts the fruits of a fraud, with knowledge of the fraud, inferentially ratifies it and will be liable even though he did not personally perpetrate the fraud. Ney and Howard claimed Murray knew of the fraud since he was a financial advisor for Surf Channel and handled some legal and accounting matters including signing most checks for Surf Channel.



In December 2005, Division Three of this court affirmed the trial courts judgment. The court rejected Murrays argument that the McClung rule was inapplicable as a matter of law. It determined that the ruling on the nonsuit turned on whether the record showed that Murray knew Viguier and Surf Channel had promised Ney and Howard equity in Surf Channel, and then failed to recognize that interest in the sale of the company. The court determined it did not. The court also found that sufficient evidence supported the trial courts ruling that alter ego liability should not be imposed on Murray.



II. The Instant Action



In June 2006, Murray filed a complaint for malicious prosecution against Howard, Ney, and Blaha, their attorney in the Surf Channel action. Murray alleged they lacked probable cause to initiate and prosecute the two actions against him because they did not honestly and reasonably believe that there were grounds for the actions as to Murray, but instead hoped that naming Murray would cause him to use his family wealth to contribute to a settlement unrelated to the merits of the cases or causes of action defendants asserted against him. Murray also alleged that Howard, Ney, and Blaha acted maliciously because there was no probable cause to support the actions and defendants brought them from a desire to annoy and wrong Murray and cause him to use his family wealth to buy his peace in a settlement unrelated to the merits.



In October 2006, Blaha filed a special motion to strike Murrays complaint under section 425.16, commonly known as the anti-SLAPP statute. Ney later joined in the motion.[2] Blaha and Ney asserted that Murray could not establish a probability of prevailing on his malicious prosecution claim because there was no evidence the original action was filed without probable cause or with malice.



As evidence, Blaha filed a supporting declaration, which stated that when Ney first retained him in July 2000, he filed his complaint against the Surf Channel entities alone. He said it was only after learning about Viguier and Attias interactions with Ney and finding that the entities were woefully undercapitalized and run in an exceedingly informal fashion, that he amended the complaint to add alter ego allegations, and add Viguier and Attia as individual defendants. Even then, he did not name Murray as a defendant at that time.



Blaha stated that when Howard retained him in 2001, he learned that she was present for much of the transaction of [Surf Channels] business (unlike Ney, who did much of his editing elsewhere), and Howard had more interaction with the companies and with Viguier, Attia and Murray. Based on information and documents [Blaha] obtained as a result of [his] retention by Howard, it became clear to [him] that Murray was a Member of [Surf Channel] as well as an investor, [and] was much more involved in running the company than previously thought, [in that he] signed checks on Surf Channels behalf, and was very involved in negotiating contracts for Surf Channel and selling Surf Channels assets to Surf Channel Delaware. As a result of this information, Blaha decided to add Murray as a defendant. Blaha said he never knew Murray was personally wealthy, and he did not name [Murray] as a defendant in the [Surf Channel actions] because he was rich, in hopes of forcing him to buy his peace; rather, he was named because it appeared he could legitimately be found liable for [his] clients damages.



Regarding the nonsuit, Blaha said that he agreed to it on the breach of contract and breach of the implied covenant causes of action to avoid further attorney fees and court costs. In addition, for strategic reasons, he preferred to concentrate on the fraud and quantum meruit claims against Murray.



Ney submitted a declaration offering similar statements and indicated that he did not bear ill will or malice toward Murray. He said he heard Murray came from a wealthy family in France, but he did not know with any certainty whether he was personally wealthy.



In opposition to the anti-SLAPP motion, Murray argued he had prima facie evidence to support the malicious prosecution suit because the original action brought against him lacked probable cause and demonstrated malice. He argued that the evidence adduced in discovery showed that Howard never had a verbal or written agreement with him regarding an equity interest in Surf Channel. Thus, Howards testimony did not provide a basis for adding him into the suit. Further, he argued that Ney also testified that he had never entered into a contract with Murray for an equity interest in Surf. Murray argued that he did not make false representations, and that his success in his nonsuit motion at trial demonstrated the lack of probable cause.



Murray submitted a declaration stating that he spoke with Ney and Howard in November 2003 during a break in Howards deposition, and that he asked Ney and Howard why they had sued him. According to Murray, Ney admitted that Murray never made any promises to him or entered into a contract with him. However, Ney told Murray that he was named as a defendant because Defendant Blaha told [Ney] that it was better to have [Murray] in the lawsuit as a defendant. According to Murray, Ney exhibited a hostile tone in his voice when he said this. Murray claimed Ney said it costs him no more monies to include me [Murray] in the lawsuit, than to proceed with[out] me. Murray stated that at the Santa Monica courthouse, immediately before the trial began, he asked Ney and Howard to let him out of the lawsuit and that Ney responded with a hostile no. Finally, Murray declared that it is public information that his father is wealthy.



The trial court granted the anti-SLAPP motion, finding that although the malicious prosecution action arose from protected activity, Murray failed to demonstrate a probability of prevailing on it. To win his malicious prosecution action, Murray had to prove there was a termination of the prior action in his favor, no probable cause for bringing it, and malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup).) The trial court found prima facie evidence that Ney and Blaha maintained the Surf Channel actions against Murray in his individual capacity without probable cause, but that they did not act with malice in doing so. As to the alter ego allegations, the trial court found they were supported by probable cause and not initiated with malice.



Murrays appeal timely followed.



DISCUSSION



I. Applicable Legal Principles



A. Section 425.16: The Anti-SLAPP Statute



As explained by our Supreme Court in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen), a strategic lawsuit against public participation (SLAPP) seeks to chill or punish a partys exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Ibid.) A court must undertake a two-step process in evaluating an anti-SLAPP motion. First, the court must determine whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. . . .  [] If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Rusheen, supra, 37 Cal.4th at p. 1056; Hutton v. Hafif (2007) 150 Cal.App.4th 527, 537.)



Murray does not dispute that his malicious prosecution action arises from Ney and Blahas protected activity, as defined by section 425.16. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 741 (Jarrow).) However, the parties differ on whether Murray demonstrated a probability of prevailing on his claims. To succeed on this second prong, a plaintiff must   state[] and substantiate[] a legally sufficient claim. [Citation.] 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.  [Citation.] [Citation.] (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos).) A plaintiff opposing an anti-SLAPP motion cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.] (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 (HMS Capital); Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289.)



In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; 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 defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. [Citation.] (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson).)



We review the trial courts ruling de novo. (Rusheen, supra, 37 Cal.4th at p. 1055; HMS Capital, supra, 118 Cal.App.4th at p. 212.)



B. 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. [Citation.] [] The question of probable cause is whether, as an objective matter, the prior action was legally tenable or not. [Citation.] 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.] In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim. [Citation.] Probable cause, moreover, must exist for every cause of action advanced in the underlying action. [A]n action for malicious prosecution lies when but one of alternate theories of recovery is maliciously asserted . . . . [Citation.] (Soukup, supra, 39 Cal.4th at p. 292.) [A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause. (Zamos, supra,32 Cal.4th at p. 970.)



 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. [Citations.] Malice may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause. [Citation.] (Soukup, supra,39 Cal.4th at p. 292.)



II. Murray Did Not Make a Prima Facie Showing of Malice



In order to defeat Ney and Blahas anti-SLAPP motion, Murray was required to establish a probability of prevailing in the malicious prosecution litigation. He therefore had to make a prima facie showing as to each of the three elements of a malicious prosecution cause of action: termination of the action in his favor, lack of probable cause, and malice. Murray contends on appeal that the first two elements are undisputed; Ney and Blaha disagree. As an initial matter, we determine that Murray established a probability of prevailing on the favorable termination prong. The judgment as a whole resolved the action, on the merits, in Murrays favor. (StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1406.)



Ney and Blaha also dispute Murrays assertion that he established a prima facie showing of lack of probable cause on the underlying action. However, even if Murray made such a showing he could not defeat the anti-SLAPP motion without also making a prima facie showing of malice. We find that element dispositive, and therefore focus on it.



Malice concerns the malicious prosecution defendants motive. Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence. [Citation.] (HMS Capital, supra, 118 Cal.App.4th at p. 218.) Malice may exist where proceedings are initiated or maintained for an improper purpose, such as forcing a settlement unrelated to the merits of the claim. (Ibid.; Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.) While objective lack of probable cause is considered in determining malice, it is only one factor and must be supplemented by other evidence that proves either actual hostility or ill will, or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant. [Citation.] [Citation.] (HMS Capital, supra,118 Cal.App.4th at p. 218.)



Malice has been illustrated by, for example: a malicious prosecution defendants threats to make trouble for the plaintiff, his attempts to bring others into the dispute, and the institution of an adverse media campaign to interfere with plaintiffs business (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157); and a defendants threat to go all the way in the litigation, compounded by the defendants attorneys admission that he argu[ed] a weak point in his brief . . . not because of any high hopes of now winning it, but because [he] wanted to show the Appellate Court what a bastard [plaintiff] was. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 54; see also Padres L.P v. Henderson (2003) 114 Cal.App.4th 495, 522 [plaintiff made prima facie showing of malice where it introduced evidence that a defendant repeatedly filed actions to interfere with or derail a city ballpark project, permitting the inference that defendant knowingly brought the action without probable cause]; HMS Capital, supra, 118 Cal.App.4th at p. 218 [malice was demonstrated where, in addition to an objective lack of probable cause, defendant took no depositions in the underlying litigation, propounded only one set of form interrogatories, and refused to dismiss the underlying case unless the plaintiff paid $25,000].).



Here, Murray primarily argues that malice can be inferred from a lack of probable cause. Murray argues that Blaha and Ney exhibited malice in that: (1) according to a third person, now deceased, Ney called Murray a deceitful person, a crook, and dishonest; (2) Ney admitted Murray did not make promises to him or enter into a contract with him, but Blaha had told Ney it was better to have Murray in the suit than not, and it cost Ney no more money to include Murray as a defendant; (3) Ney responded with a hostile no  when Murray asked Ney to dismiss him from the suit immediately before trial; and (4) Ney sued Murray to try to extract a settlement because he knew Murrays family is wealthy.



Malice must be established by other evidence in addition to an objective lack of probable cause, evidence that permits an inference as to the defendants subjective malicious state of mind. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 495, 498 (Downey).) Murrays evidence falls short of meeting this burden. We consider his points in turn.[3]



The evidence that Ney called Murray deceitful and dishonest came from a third person, Jacques Peterson. Murray submitted Petersons signed but undated declaration in opposition to the anti-SLAPP motion. The declaration itself is defective because it is neither signed under penalty of perjury under the laws of California, nor does it indicate that Peterson executed it in California. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610-612.)



Neither do Neys statements to Murray permit a reasonable inference of malice. The comment that Blaha said it was better to have Murray in the suit reflects Blahas legal strategy, which included pursuing an alter ego theory of liability against Murray, rather than a statement from which a reasonable factfinder could infer ill will or an improper purpose. Further, Neys additional comment that it cost Ney no more money to keep Murray in the action would only permit a reasonable inference of malice if it suggested Ney or Blaha were aware that Ney had no viable claims against Murray. No other facts support such an inference. Neys refusal to agree to dismiss Murray from the case, even if expressed in a hostile tone, does not reasonably suggest that he knew his claims were invalid; that he initiated or continued the proceedings out of hostility or ill will; or that Ney was pursuing the litigation in an attempt to extract a meritless settlement from Murray. His refusal to dismiss Murray could reasonably be considered a demonstration of a strong belief in the validity of the claim. Even considering Neys alleged statements cumulatively does not lead to a reasonable inference that Ney or Blaha instituted or prosecuted the Surf Channel action against Murray primarily for the intentionally wrongful purpose of injuring Murray. (Downey, supra,66 Cal.App.4th at p. 499.)



Murrays additional assertion that Ney and Blaha were trying to extract a meritless settlement from him is entirely unsupported by any admissible evidence. Murray offered no evidence that Ney and Blaha ever proposed settlement, and on appeal he asserts that Ney and Blahas malice was evidenced by their failure to attempt to resolve any issues with him. Murray also did not present any evidence even suggesting that Ney or Blahas



purported knowledge of his family wealth had anything to do with their decision to initiate or continue the Surf Channel action against him.[4]



Moreover, while facts establishing a lack of probable cause may create an inference of malice, nothing in the facts Murray has set forth relating to probable cause suggest that Ney and Blaha acted primarily with an improper purpose, with hostility, ill will, indifference, or with the subjective intent to deliberately misuse the legal system for personal gain or satisfaction at Murrays expense. (Downey, supra,66 Cal.App.4th at pp. 495, 498-499; Soukup, supra, 39 Cal.4th at p. 292.)



Further, Murray ignores the fact that he sought summary judgment on the alter ego theory and the fraudulent transfer claim, but did not prevailbecause the trial court determined that triable issues existed on those claims. In Wilson, our Supreme Court approved the proposition established in Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383: for purposes of a subsequent malicious prosecution action, denial of a defense summary judgment motion on grounds that a triable issue exists establishes that there was probable cause for the action.[5](Wilson, supra, 28 Cal.4th at pp. 819-820, 824.) Thus, Murrays argument of lack of probable cause fails, at least with respect to the alter ego theory and fraudulent transfer claim.[6]



Murray has also failed to show that the facts establishing a lack of probable cause would permit a reasonable inference of malice in this case as to the other causes of action as well. Murray claims there is evidence of malice as shown by Neys concession that Murray made no false representations to him, that Murray did not personally enter into any contract with him, and that Murray was not present during his conversations with Viguier and Attia. He is mistaken. Although Ney conceded that Murray did not make any false representations to him personally, he and Blaha had legal theories that would render Murray liable despite this fact, including the alter ego allegation and the McClung argument. These theories turned at least in part on circumstantial evidence that would be adduced at trial through Murrays testimony, and perhaps that of other witnesses as well. Although Ney did not prevail, it was not because his legal theories were per se inapplicable as Murray argued. It was instead because the evidence at trial did not bear out that Murray was as involved in Surf Channel as Ney and Blaha believed.



Murrays argument that Blaha failed to conduct a reasonable investigation of Neys claims is equally unavailing. The extent of counsels research may be a factor relevant to malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 883 (Sheldon). But, here, the record does not suggest that Blahas research was so lacking as to demonstrate indifference or hostility. Blaha offered evidence of his investigation, and the record reflects that he conducted at least some discovery.[7]This investigation apparently revealed some factual weaknesses in Neys case, but Blahas strategy was to pursue the legal theories against Murray in view of what he learned about Murrays involvement in Surf Channel.



That a theory is a long shot does not mean that a litigant acts without probable cause in pursuing it, or that the litigant acts with malice by pursuing it. [A] claim that appears arguably correct or tenable when filed with the court may nevertheless fail . . . for reasons having to do with the sufficiency of the evidence actually adduced as the litigation unfolds. (Jarrow, supra, 31 Cal.4th at p. 742.)  Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . . [Citation.]  (Sheldon, supra, 47 Cal.3d at p. 885.) While Neys contract and quasi-contract claims asserted against Murray as an individual seemed more obviously doomed to fail, Murray still does not present evidence suggesting that Neys action was initiated or prosecuted with a subjective malicious intent.



Murray encourages us to follow the ruling and reasoning of Ross v. Kish (2006) 145 Cal.App.4th 188, but Ross is distinguishable on its facts. In Ross, an attorney (Ross) represented a client in a real estate matter, which settled at a mediation. (Id. at p. 191.) Ross later sued the client in small claims court for unpaid legal fees. (Ibid.) The client responded by suing Ross in superior court for breach of contract and legal malpractice, but he refused to participate in discovery, and eventually the suit was dismissed as a discovery sanction. Ross then sued the client for malicious prosecution, and the client filed an anti-SLAPP motion. (Ross, at p. 191.) The court found that Ross made a prima facie showing of malice based on evidence that suggested the client knew his claims for breach of contract and legal malpractice lacked factual and legal support, and were filed only after Ross attempted to recover his unpaid legal fees. (Id. at p. 204.) Rosss showing in opposition to the anti-SLAPP motion included evidence that the clients claims were directly contradicted by written documents, the mediation resulted in a favorable outcome for the client, and the client refused to submit to a deposition in his action against Ross, which suggested he knew his claims lacked merit. (Ross, at pp. 199-200.) Moreover, the evidence permitted an inference that the client acted with an improper purpose in that he filed suit only after Ross attempted to collect his unpaid legal fees. (Id. at p. 204.)



Murray has failed to make a similar showing in this case. Murray narrows his argument to focus on only the claims asserted against him in his individual capacity, but the argument is essentially the same, which is that the claims were untenable, therefore a trier of fact could infer malice. But even if that were so, Murray lacks evidence indicating that Blaha and Ney subjectively believed the claims to be meritless and pursued them anyway. (Jarrow, supra, 31 Cal.4th at p. 743.) Unlike the Ross plaintiff who presented evidence that the defendant had an improper purpose in the underlying litigationretaliation against Ross for trying to recover unpaid feesMurray has presented no facts from which a reasonable trier of fact could find that Ney or Blaha had a similar improper purpose.



In sum, Murray has failed to make a prima facie showing of malice and has therefore not established a probability of prevailing on his malicious prosecution claim. The trial court properly granted Ney and Blahas anti-SLAPP motion.



III. The Trial Court Did Not Err By Failing to Issue a Statement of Decision.



Murray also states that the trial court failed to issue a statement of decision. Assuming this statement is an argument that the trial court erred by failing to issue a statement of decision, we disagree. In support of his statement, Murray cites DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 564, in which the Court of Appeal indicated that the trial court should issue a statement of decision if it granted an anti-SLAPP motion on remand in that case. At least one other court has expressly found that a statement of decision is not required for an order on an anti-SLAPP motion, and further concluded that the statement to the contrary in DuPont is dicta. (Lien v. Lucky United Properties Investment (2008) 163 Cal.App.4th 620.) We need not decide this issue because the trial court here issued a written tentative order describing in detail the basis for its proposed ruling, and following oral argument it adopted it as its final ruling. Murray fails to explain why this order is inadequate, and there is no evidence that any party in this case requested a statement of decision. ( 632 [upon the trial of a question of fact, the trial court must issue a statement of decision upon the request of any party.] We therefore reject Murrays argument.













DISPOSITION



The judgment is affirmed. Respondents are to recover their costs on appeal.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



BIGELOW, J.



We concur:



COOPER, P. J.



RUBIN, J.



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



[2] Howard did not join in the anti-SLAPP motion and is not a party to this appeal. However, because she played a role in the underlying action, we refer to her where necessary.



[3] Murray also points to Howards actions as evidence of malice, specifically that she said nothing in the two conversations Murray had with both Ney and Howard in which he asked why they sued him and requested that they dismiss him from the action, and Howards deposition testimony that she was unhappy with Murray because he knew about the sale of Surf Channel and did not tell her about it, even though her equity interest was involved. However, Howard did not participate in the anti-SLAPP motion, and is not a party to this appeal. Even if her actions were indicative of malice (which we need not decide), Murray does not contend that Howards subjective intentions are attributable to Ney or Blaha.



[4] Indeed, Murray did not present any evidence that Ney and Blaha knew he was wealthy. Ney declared that he knew Murray came from a wealthy family, but asserted that he did not know whether Murray was personally wealthy.



[5] An exception to this rule is when the summary judgment ruling was obtained by fraud or perjury. (Wilson, supra, 28 Cal.4th at p. 820.) Murray has not invoked this exception, and the record before us does not suggest that the exception would apply here.



[6] Apparently, an early iteration of Neys complaint also included a claim for unfair competition, which was later dismissed on demurrer. Murray sporadically references the unfair competition claim in his opening brief, but the record does not include the complaint that pleaded the unfair competition claim, the demurrer, any opposition, or any ruling on the demurrer. Neither the record nor the briefs describe the factual or legal basis for the unfair competition claim or the demurrer. We therefore are unable to draw any conclusions from the unfair competition claim or its dismissal on demurrer.



[7] No party has provided a detailed description of the extent or scope of discovery in the underlying proceeding.





Description Jean Pierre Murray sued Philippe Ney, Jacqueline (Keline) Howard, and Attorney Michael Blaha for malicious prosecution arising out of Ney and Howards previous contract and fraud action against Murray. Ney and Blaha filed a special motion to strike pursuant to Code of Civil Procedure section 425.16. Murray appeals from the trial courts order granting the motion. Court conclude that Murray did not establish a probability of prevailing on his malicious prosecution claim and therefore affirm the trial courts order.

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