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Madrid v. Schreiber9/14/2005
ther the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Madrid and Parkside concede that this first prong of the two-part test had been met because the Malicious Prosecution Action arose out of the filing and prosecution of the Harassment Action. (See id. at p. 741; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 893; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 213 (HMS Capital).) We thus focus on the second prong of the test.
Under the second prong, the court determines whether the plaintiff has presented evidence sufficient to "establish that there is a probability that the plaintiff will prevail on the claim." (Code Civ. Proc., ยง 425.16, subd. (b)(1).) In making this determination, " he court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to 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. [Citations.] The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward." (HMS Capital, supra, 118 Cal.App.4th at p. 212.)
We independently review the trial court's rulings on an anti-SLAPP motion, including whether the plaintiffs have shown a probability of prevailing. (HMS Capital, supra, 118 Cal.App.4th at p. 212; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
The sole cause of action asserted in Madrid and Parkside's complaint is for malicious prosecution. Prior to Zamos v. Stroud (2004) 32 Cal.4th 958 (Zamos), a plaintiff asserting a malicious prosecution claim was required to "`"prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." [Citations.]' [Citations.]" (Id. at pp. 965-966.) In Zamos, our state Supreme Court modified these elements by holding that the tort exists when an action, though properly commenced, continues to be prosecuted after the attorney learns it is not supported by probable cause. (Id. at pp. 960, 973.) The Zamos holding applies retroactively. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 23.)
When, as here, an underlying complaint charges multiple theories of liability, a subsequent action alleging malicious prosecution for prosecuting the underlying complaint will lie if some, but not all, of the theories were asserted without probable cause and with malice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 671, 679.) That is, if a plaintiff in an underlying action asserted three c
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