Paulus v. Bob Lynch Ford, Inc.

Santa Clara County Superior Court, No. CV027387,Hon. Jamie Jacobs-May.

Sean B. Absher, James M. Brennan, Stradling, Yocca,Carlson & Rauth, for Plaintiff and Appellant.

Timothy C. Davis, Damien P. Lillis, The Davis LawFirm, for Defendants and Respondents.

DUFFY, J.

*1 In an earlier lawsuit brought in 2003 (the prior suit),Timothy Paulus was sued by his competitor in anunsuccessful attempt to prevent him from developing aFord automobile dealership in Morgan Hill, California.That prior suit was brought under Business andProfessions Code section 17200 et seq. (the unfaircompetition law (UCL)) FN1 by an established,Gilroy-based Ford automobile dealership and itspresident/shareholder (Bob Lynch Ford, Inc. and ScottLynch, respectively, and hereafter, collectively, Lynch).FN2 After filing a series of demurrers, Paulusultimately prevailed in the prior suit after the courtsustained his demurrer without leave to amend.

FN1. Although the statute does not bear a legislativetitle, the Supreme Court has referred to Business andProfessions Code section 17200 et seq. most recently asthe unfair competition law or UCL. (See Stop YouthAddiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th553, 558, 71 Cal.Rptr.2d 731, 950 P.2d 1086 & fn. 2(Stop Youth Addiction ).)

FN2. Bob Lynch Ford, Inc. and Scott Lynch areseparate parties. We refer to them throughout thisopinion (as a matter of convenience) collectively asLynch, and we will use the gender-neutral and singular“it” in referring to those parties.

In September 2004, Paulus brought this action againstLynch for claims arising out of the prior suit, includinga cause of action for malicious prosecution. Lynchbrought a special motion to strike Paulus’s complaintunder the anti-SLAPP (strategic lawsuits against publicparticipation) statute, Code of Civil Procedure section425.16. FN3 After granting the motion, the courtawarded Lynch $40,000 and $1,819.96 in attorney feesand costs, respectively.

FN3. All further statutory references are to the Code ofCivil Procedure unless otherwise stated.

Paulus appeals from these two orders. He claims(among other things) that the motion to strike shouldhave been denied because he presented a prima faciecase of malicious prosecution-including showing thatLynch lacked probable cause to bring the prior suit andthat Lynch prosecuted it with malice. We conclude thatPaulus did not meet his burden under section 425.16 ofdemonstrating the probability that he would prevail onthe merits of any of his claims. Specifically, Paulus didnot show that Lynch lacked probable cause to bring theprior suit-an essential element of a maliciousprosecution claim-because (1) malicious prosecution isa disfavored tort that is maintainable only if theunderlying suit was one that no reasonable attorneywould believe to be objectively tenable, (2) the UCL isa broad statute intended to protect both consumers andcompetitors against business practices that are unlawful,unfair or fraudulent, and (3) no authority expresslyprecluded the bringing of Lynch’s UCL claim under thecircumstances alleged in the prior suit. In addition,Paulus forfeited any challenge to the granting of themotion to strike his claims for abuse of process andintentional interference with contractual relations; inany event, he made no prima facie showing below insupport of these claims.

We therefore find no error. Accordingly, we affirm theorder granting the anti-SLAPP motion to strike. Wealso affirm the order awarding attorney fees and coststo Lynch.

PROCEDURAL HISTORY

I. Prior Suit

Lynch filed suit against Paulus and others on July 23,2003. The complaint named the City of Morgan Hill(City) and related City entities and alleged that Lynchwas “[a]cting as [an] injured competitor[ ] and asprivate attorney [ ] general” in bringing suit to enforcethe UCL. In general, the complaint alleged that Paulussought to establish a Ford automobile dealership inMorgan Hill on an 8.65 acre site (Dealership); the CityCouncil approved several land-use applicationssubmitted by Paulus for the Dealership; and thatapproval of the applications violated the Planning andZoning Law (Gov.Code, § 65000 et seq.), the City’sgeneral plan, and the California Environmental QualityAct (CEQA, Pub. Res.Code, § 21000 et seq.). Lynchsought injunctive relief and mandamus to preventdevelopment of the Dealership and to void theland-use-application approvals.

*2 Lynch thereafter filed a first amended complaint.Again alleging that it had brought suit both “as [an]injured competitor[ ] and … as private attorney[ ]general,” Lynch invoked the UCL for alleged violationsof Planning and Zoning Law, the City’s general plan,CEQA, and “[section] 1094.5, the statu [t]e requiringwritten finding[s] for quasi-judicial administrativedecisions.” The first amended complaint soughtinjunctive relief and mandamus.

Paulus, City, and related City entities filed jointly ademurrer to the first amended complaint. Thedemurring defendants argued, inter alia, that (1) Lynchhad no legal standing to challenge the City’s approval ofthe land-use applications for the Dealership, because itwas not a “beneficially interested” party as required foradministrative mandamus proceedings brought undersection 1086 in general and under section 1094.5 inparticular; (2) public entities such as the City areimmune from potential liability under the UCL; and (3)Paulus’s acts taken in obtaining approval of the land-useapplications did not constitute unfair business practicesunder the UCL. The court rejected the first and thirdarguments FN4 of the demurring defendants andadopted the second argument; accordingly, it sustainedthe demurrer of the City and related City entities andotherwise overruled the demurrer.

FN4. The court rejected the demurring defendants’ thirdargument because it found that Lynch’s UCL claimagainst Paulus was “predicated upon his havingallegedly committed ‘unlawful’ business practices,”while Paulus argued only that the first amendedcomplaint failed to allege facts in support of the claimthat Paulus committed “unfair” business practices underthe UCL. The court thus found that Paulus had “failed[in his demurrer] to establish that [Lynch's] claimagainst him fails as a matter of law.”

Lynch filed a second amended complaint. Lynch againalleged that it had brought the action both as an injuredcompetitor and “for the interests of the general publicas private attorney[ ] general … to enforce the [UCL]”for alleged violations of section 1094.5, the Planningand Zoning Law, the City’s general plan, and CEQA.The pleading contained a new allegation that “the CityCouncil authorized the City Manager to do everythingnecessary and appropriate to execute a developmentagreement with the private defendants whichdevelopment agreement may result in the City payingthe private defendants up to $1,225,000.00 of partialsales tax rebates over a period of 10 years,” and thatthese potential rebates significantly threatenedcompetition between Lynch and Paulus. FN5

FN5. The second amended complaint alleged as a newcount that the proposed Paulus/City developmentagreement was “a significant threat to competitionbetween Lynch and Paulus.” The pleading also differedin that it deleted two of the counts alleged in the firstamended complaint. The second amended complaintalso contained a caption that differed from the firstamended complaint (including a different title and theaddition of numerous new parties [apparently all Cityofficials] ). Otherwise, the second amended complaintwas substantially similar to the first amended complaint.

Paulus, the City, and the related City entities filed ademurrer to the second amended complaint, arguingthat (1) the City and its related entities were immunefrom liability under the UCL; and (2) Lynch failed toallege facts that Paulus had engaged in unfaircompetition under the UCL by committing unlawfulbusiness practices-the allegation was merely that Paulushad performed the lawful act of submitting adevelopment application based upon land use approvalsgranted by the City. FN6 The court sustained thedemurrer of the City and related City entities withoutleave to amend and sustained Paulus’s demurrer withleave to amend.

FN6. Before the demurrer to the second amendedcomplaint was considered, Lynch sought a temporaryrestraining order to prevent establishment of theDealership based upon the previously approved landuse applications. That application was denied by thecourt on or about November 21, 2003.

Lynch filed a third amended complaint. It containedsubstantially the same allegations that had appeared inthe second amended complaint. The new pleading didallege more specifically that Lynch had brought theaction under the UCL to address, among other allegedviolations, “[a] discriminatory government subsidysignificantly threatening competition.” The thirdamended complaint also alleged for the first time thatPaulus had conspired with, and aided and abetted the“municipal defendants” through his submission of theland use applications and by obtaining the applicationapprovals that Lynch claimed were unlawful.

*3 Paulus filed a demurrer to the third amendedcomplaint, which Lynch opposed. Paulus argued thatLynch had failed to state a claim under the UCL forunfair competition based upon either alleged unfair orunlawful business acts or practices. The court sustainedthis demurrer without leave to amend. Pursuant to theparties’ stipulation, the court dismissed the action onMarch 30, 2004, following its order sustaining thedemurrer.

Lynch filed a petition for writ of supersedeas and apetition for an emergency stay with this court. Wedenied both petitions on April 16, 2004 (H027269).Lynch sought review by the Supreme Court, which wasdenied on May 19, 2004.

II. The Present Action

On September 21, 2004, Paulus filed the present actionagainst Lynch. The unverified complaint containedthree claims: malicious prosecution, abuse of process,and intentional interference with contractual relations.Paulus alleged that the prior suit was filed by Lynchagainst Paulus; was concluded in his favor; was broughtand prosecuted without probable cause; and wasbrought and prosecuted by Lynch maliciously. Paulusalso alleged that Lynch “misused the legal system bybringing and prosecuting” the prior suit and that bydoing so, Lynch interfered with Paulus’s contract topurchase land to establish the Dealership.

Lynch filed a special motion to strike the complaintunder section 425.16. It contended that (1) Paulus’s suitarose out of Lynch’s protected activity (i.e., petitioningthe court through the prior suit); (2) Paulus bore theburden under the anti-SLAPP statute of presentingadmissible evidence showing a reasonable probabilitythat he would prevail on his claims; (3) the maliciousprosecution claim was without merit because Lynch hadprobable cause for maintaining the prior action; and (4)the abuse of process and interference with contractclaims were without merit because they were barred bythe litigation privilege. FN7

FN7. Lynch filed a request for judicial notice inconnection with its anti-SLAPP motion. The motionrequested that the court take judicial notice of numerouspleadings (three volumes) filed in the prior suit. Thecourt below granted the request for judicial notice.

In his opposition to the motion to strike, Paulus focusedon the sufficiency of his malicious prosecution claim.Paulus argued that (1) the prior suit was undeniablyterminated in Paulus’s favor, thereby satisfying onemalicious prosecution element; (2) the prior suit wasfounded upon legal theories that were patently withoutmerit and Lynch therefore lacked probable cause inprosecuting the prior suit; (3) Lynch acted with malicein initiating and prosecuting the prior suit; and (4)because the motion to strike was frivolous, Paulusshould be awarded attorney fees and costs.

Paulus filed two declarations with his opposition to theanti-SLAPP motion. Paulus declared that (1) he hadsustained damages as a result of the prior suit, includinglost profits and expenses associated with delay incompleting the transaction in which he acquired theproperty for the Dealership; (2) Lynch’s Ford dealershipin Gilroy was in direct competition with Paulus’sDealership; (3) an existing automobile dealership maychallenge the creation of a new dealership within a10-mile radius by filing a protest with the New MotorVehicle Board; (4) Paulus had established theDealership outside of this 10-mile radius so that itwould not be subject to such a protest by Lynch; and (5)he believed that Lynch had brought the prior suit as asubterfuge because it was unable to challenge Paulus’sDealership through an administrative protest. Attachedto his attorney’s declaration were copies of two letterswritten to Lynch’s counsel requesting that the prior suitbe dismissed, along with a copy of one letter inresponse from Lynch’s counsel.

*4 On January 25, 2005, the court heard argument andtook the matter under submission. It thereafter grantedthe motion to strike the complaint. In striking thecomplaint, the court reasoned that Paulus had failed tomeet his burden of showing a probability that he wouldprevail on his complaint. Specifically, the court heldthat Paulus had not established by competent evidencethat Lynch lacked probable cause and acted with malicein prosecuting the prior action. The court also held thatLynch was entitled to its attorney fees and costsassociated with the motion pursuant to section 425.16,subdivision (c).

Lynch filed a motion for attorney fees and costs,seeking an award of $60,786 in fees and $1,694.96 incosts. FN8 Paulus filed opposition to the motion, notingthat he did not dispute Lynch’s entitlement to an awardof attorney fees, but that he objected to a claimed “lackof documentation supporting the award.” The courtgranted Lynch’s motion and awarded it $40,000 inattorney fees and $1,819.96 in costs. Paulus filed atimely notice of appeal from the orders striking thecomplaint and awarding attorney fees and costs.

FN8. Lynch later amended its request, asking that thecourt award it $62,556 in attorney fees and $1,819.96in costs.

DISCUSSION

I. Issues On Appeal

Paulus raises the following issues in this appeal:

1. Whether the trial court erred by granting Lynch’santi-SLAPP motion because Paulus presented a primafacie case of malicious prosecution.

2. Whether the trial court erred by granting the motionto strike as to Paulus’s abuse of process claim.

3. Whether the trial court erred by granting the motionto strike as to Paulus’s intentional interference withcontractual relations claim. FN9

FN9. Paulus raises for the first time in his reply briefthe contentions that the motion to strike should havebeen denied to his claims for abuse of process andinterference with contractual relations. As we willdiscuss (see pt. IV, sec. B, post ), Paulus forfeited theseclaims of error but, in any event, they are without merit.

4. Whether the trial court erred by awarding Lynchattorney fees and costs as the party prevailing on theanti-SLAPP motion.

We address each of these claims of error below.

II. Anti-SLAPP Motions

[1] A “SLAPP” suit is “a meritless suit filed primarilyto chill the defendant’s exercise of First Amendmentrights. [Citation.]” (Wilcox v. Superior Court (1994) 27Cal.App.4th 809, 815, fn. 2, 33 Cal.Rptr.2d 446,disapproved on other grounds in Equilon Enterprises v.Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, 124Cal.Rptr.2d 507, 52 P.3d 685 (Equilon ).) In otherwords, a lawsuit that is a SLAPP arises fromconstitutionally protected speech or petitioning activitythat “lacks even minimal merit.” (Navellier v. Sletten(2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d703 (Navellier ).)

SLAPP suits may be disposed of summarily by a specialmotion to strike under section 425.16, commonlyknown as an “anti-SLAPP motion.” The statuteprovides: “A cause of action against a person arisingfrom any act of that person in furtherance of theperson’s right of petition or free speech under theUnited States or California Constitution in connectionwith a public issue shall be subject to a special motionto strike, unless the court determines that the plaintiffhas established that there is a probability that theplaintiff will prevail on the claim.” (§ 425.16, subd.(b)(1).) As is relevant to this appeal, the statute defines“ ‘act in furtherance of a person’s right of petition orfree speech under the United States or CaliforniaConstitution in connection with a public issue’ “ to“include[ ]:(1) any written or oral statement or writingmade before a legislative, executive, or judicialproceeding, or any other official proceeding authorizedby law; (2) any written or oral statement or writingmade in connection with an issue under consideration orreview by a legislative, executive, or judicial body, orany other official proceeding authorized by law….” (Id.,subd. (e).)

*5 [2] A motion to strike under section 425.16 isanalyzed and resolved by “the court … engag[ing] in atwo-step process. First, the court decides whether thedefendant has made a threshold showing that thechallenged cause of action is one arising from protectedactivity. The moving defendant’s burden is todemonstrate that the act or acts of which the plaintiffcomplains were taken ‘in furtherance of the[defendant]‘s right of petition or free speech under theUnited States or California Constitution in connectionwith a public issue,’ as defined in the statute. (§ 425.16,subd. (b)(1).) If the court finds such a showing has beenmade, it then determines whether the plaintiff hasdemonstrated a probability of prevailing on the claim.” (Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d507, 52 P.3d 685Thus, “[o]nly a cause of action thatsatisfies both prongs of the anti-SLAPP statute-i.e., thatarises from protected speech or petitioning and lackseven minimal merit-is a SLAPP, subject to beingstricken under the statute.” (Navellier, supra, 29Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

The anti-SLAPP statute, as specified in a 1997amendment, “shall be construed broadly.” (§ 425.16,subd. (a), as amended by Stats.1997, ch. 271, § 1.) Inkeeping with this policy, the Supreme Court hasrejected a number of arguments deemed to have beenunwarranted, narrow constructions of section 425.16. (See, e.g., Jarrow Formulas, Inc. v. LaMarche (2003)31 Cal.4th 728, 3 Cal.Rptr.3d 636, 74 P.3d 737 (JarrowFormulas ) [malicious prosecution claim potentiallysubject to anti-SLAPP statute, rejecting contention thatsuch a construction of section 425.16 would deprivemalicious prosecution victims of a remedy]; Equilon,supra, 29 Cal.4th at pp. 66-67, 124 Cal.Rptr.2d 507, 52P.3d 685 [defendant making anti-SLAPP motion neednot demonstrate that plaintiff brought action claimed tobe SLAPP with intent of chilling defendant's exercise offree speech or petition rights]; City of Cotati v.Cashman (2002) 29 Cal.4th 69, 75, 124 Cal.Rptr.2d519, 52 P.3d 695 [defendant not required to show thataction claimed to be SLAPP had actual effect ofchilling defendant's exercise of free speech or petitionrights]; Briggs v. Eden Council for Hope & Opportunity(1999) 19 Cal.4th 1106, 1109, 81 Cal.Rptr.2d 471, 969P.2d 564 [anti-SLAPP statute does not requiredefendant to show separately that its constitutionallyprotected activity “concern[s] an issue of publicsignificance”].)

III. Appellate Review Of Order GrantingAnti-SLAPP Motion

[3] An order granting an anti-SLAPP motion to strike isa proper subject for appeal. (§ 425.16, subd. (i ); seealso Kyle v. Carmon (1999) 71 Cal.App.4th 901, 906,84 Cal.Rptr.2d 303.) We review de novo a trial court’sruling on a motion to strike under section 425.16 by“conducting an independent review of the entire record.[Citations .]” (HMS Capital, Inc. v. Lawyers Title Co.(2004) 118 Cal.App.4th 204, 212, 12 Cal.Rptr.3d 786;see also Siam v. Kizilbash (2005) 130 Cal.App.4th1563, 1569, 31 Cal.Rptr.3d 368.)

[4] Thus, our review is conducted in the same manneras the trial court in considering an anti-SLAPP motion.In determining whether the defendant (Lynch) has metits initial burden of establishing that the plaintiff’s(Paulus’s) action arises from protected activity, weconsider “the pleadings, and supporting and opposingaffidavits stating the facts upon which the liability ordefense is based.” (§ 425.16, subd. (b)(2); see also Cityof Cotati v. Cashman, supra, 29 Cal.4th at p. 79, 124Cal.Rptr.2d 519, 52 P.3d 695; Navellier, supra, 29Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)The second prong-i.e., whether the plaintiff (Paulus)has shown a probability of prevailing on the merits-isconsidered under a standard similar to that employed indetermining nonsuit, directed verdict or summaryjudgment motions. (ComputerXpress, Inc. v. Jackson(2001) 93 Cal.App.4th 993, 1010, 113 Cal.Rptr.2d 625.) “[I]n order to establish the requisite probability ofprevailing [citation], the plaintiff need only have ‘“stated and substantiated a legally sufficient claim.” ‘[Citations.] ‘Put another way, the plaintiff “mustdemonstrate that the complaint is both legally sufficientand supported by a sufficient prima facie showing offacts to sustain a favorable judgment if the evidencesubmitted by the plaintiff is credited.” ‘ [Citations.]”(Navellier, supra, at pp. 88-89, 124 Cal.Rptr.2d 530, 52P.3d 703.)

*6 [5][6][7] As is true with summary judgment motions,the issues in an anti-SLAPP motion are framed by thepleadings. (Church of Scientology v. Wollersheim(1996) 42 Cal.App.4th 628, 655, 49 Cal.Rptr.2d 620,disapproved on other grounds in Equilon, supra, 29Cal.4th at p. 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d685.) The plaintiff may not rely solely on its complaint,even if verified; instead, its proof must be made uponcompetent admissible evidence. (ComputerXpress, Inc.v. Jackson, supra, 93 Cal.App.4th at p. 1010, 113Cal.Rptr.2d 625.) In reviewing the plaintiff’s evidence,the court does not weigh it; rather, it simply determineswhether the plaintiff has made a prima facie showing offacts necessary to establish its claim at trial. (Ibid.)

We review the court’s order granting Lynch’s motion tostrike Paulus’s complaint as a SLAPP suit with theabove standard of review in mind.

IV. The Order Striking Paulus’s Complaint

A. Paulus’s Malicious Prosecution Claim

Paulus does not dispute that the malicious prosecutionaction arose from an “act … in furtherance of [a]person’s right of petition or free speech under theUnited States or California Constitution in connectionwith a public issue,” within the meaning of theanti-SLAPP statute. (§ 425.16, subd. (b)(1); see alsoid., subd. (e).) He therefore concedes that Lynch met itsinitial burden of proof in the motion to strike. Theburden thus shifted to Paulus to establish that he had aprobability of prevailing on his claim. (Equilon, supra,29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)

[8] A malicious prosecution claim requires that theplaintiff “demonstrate ‘that the prior action (1) wascommenced by or at the direction of the defendant andwas pursued to a legal termination in his, plaintiff’s,favor [citations]; (2) was brought without probablecause [citations]; and (3) was initiated with malice[citations].’ [Citations.]” (Sheldon Appel Co. v. Albert& Oliker (1989) 47 Cal.3d 863, 871-872, 254 Cal.Rptr.336, 765 P.2d 498 (Sheldon Appel ), quoting Bertero v.National General Corp. (1974) 13 Cal.3d 43, 50, 118Cal.Rptr. 184, 529 P.2d 608.) The parties do notdispute that Lynch’s prior suit terminated in Paulus’sfavor. Accordingly, our focus here is upon the secondand third elements.

Paulus contends that the court below erred in findingthat he had not met his burden of establishing a primafacie claim of malicious prosecution. He asserts that hepresented evidence sufficient to establish that Lynchhad prosecuted the prior suit without probable causeand with malice; Paulus having thus met his burden (heargues), the anti-SLAPP motion should have beendenied.

Before addressing these arguments, we must first takea brief detour to set forth basic principles concerningmalicious prosecution claims and claims brought underthe UCL. These principles are essential for us toproperly evaluate Paulus’s contentions on appeal.

1. Malicious prosecution claims generally

[9] It is a long-recognized fact that claims for maliciousprosecution are viewed with disfavor due to theirpotential to exert an “undue ‘chilling effect’ on theordinary citizen’s willingness to report criminal conductor to bring a civil dispute to court.” (Sheldon Appel,supra, 47 Cal.3d at p. 872, 254 Cal.Rptr. 336, 765 P.2d498; but see Casa Herrera, Inc. v. Beydoun (2004) 32Cal.4th 336, 349, 9 Cal.Rptr.3d 97, 83 P.3d 497[malicious prosecution claim will not be barred simplybecause of tort's disfavored status].) It is for this reason,as our Supreme Court has observed, that “the elementsof the tort have historically been carefullycircumscribed [in California] so that litigants withpotentially valid claims will not be deterred frombringing their claims to court by the prospect of asubsequent malicious prosecution claim.” (SheldonAppel, supra, at p. 872, 254 Cal.Rptr. 336, 765 P.2d498.) Acknowledging that the flood of litigation inrecent years has caused a reassessment of the “‘disfavored’ status of the malicious prosecution tort”(ibid.), our high court declined the invitation to“abandon or relax the traditional limitations onmalicious prosecution recovery.” (Id. at p. 874, 254Cal.Rptr. 336, 765 P.2d 498; see also Wilson v. Parker,Covert & Chidester (2002) 28 Cal.4th 811, 816-817,123 Cal.Rptr.2d 19, 50 P.3d 733 (Wilson ).)

*7 [10][11] With these policy considerations asbackground, the court in Sheldon Appel enunciated adefinition of the probable cause element of maliciousprosecution that the Supreme Court later characterizedas a “rather lenient standard for bringing a civil action.”(Wilson, supra, 28 Cal.4th at p. 817, 123 Cal.Rptr.2d19, 50 P.3d 733.) Under this test, probable cause forhaving brought the prior action will be found where“any reasonable attorney would have thought the claimtenable.” (Sheldon Appel, supra, 47 Cal.3d at p. 886,254 Cal.Rptr. 336, 765 P.2d 498.) FN10 The issue ofprobable cause is always one for the court to decide (id.at pp. 868, 875, 881, 254 Cal.Rptr. 336, 765 P.2d 498),and “resolution of that question of law calls for theapplication of an objective standard to the facts onwhich the [malicious prosecution] defendant acted.”(Id. at p. 878, 254 Cal.Rptr. 336, 765 P.2d 498.) Thecourt explained that this determination “requires asensitive evaluation of legal principles and precedents”(id. at p. 875, 254 Cal.Rptr. 336, 765 P.2d 498), and“that in evaluating whether or not there was probablecause for malicious prosecution purposes, a court mustproperly take into account the evolutionary potential oflegal principles. [Citation.]” (Id. at p. 886, 254Cal.Rptr. 336, 765 P.2d 498.) And as explained by theSupreme Court more recently, under this “ratherlenient” probable cause standard, “[a] litigant orattorney who possesses competent evidence tosubstantiate a legally cognizable claim for relief doesnot act tortiously by bringing the claim, even if alsoaware of evidence that will weigh against the claim.Plaintiffs and their attorneys are not required, onpenalty of tort liability, to attempt to predict how a trierof fact will weigh the competing evidence, or toabandon their claim if they think it likely the evidencewill ultimately weigh against them. They have the rightto bring a claim they think unlikely to succeed, so longas it is arguably meritorious. [Citation.]” (Wilson,supra, 28 Cal.4th at p. 822, 123 Cal.Rptr.2d 19, 50P.3d 733, citing Sheldon Appel, supra, at p. 885, 254Cal.Rptr. 336, 765 P.2d 498, fn. omitted.) FN11

FN10. The Supreme Court explained that this standardwas adapted from the related issue of determiningwhether an appeal is frivolous. (Sheldon Appel, supra,47 Cal.3d at pp. 885-886, 254 Cal.Rptr. 336, 765 P.2d498.) Under that test, an appeal is deemed to befrivolous only where “any reasonable attorney wouldagree that the appeal is totally and completely withoutmerit.” (In re Marriage of Flaherty (1982) 31 Cal.3d637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.)

FN11. In the same vein, the Supreme Court has recentlystated: “ ‘Probable cause may be present even where asuit lacks merit. Favorable termination of the suit oftenestablishes lack of merit, yet the plaintiff in a maliciousprosecution action must separately show lack ofprobable cause. Reasonable lawyers can differ, someseeing as meritless suits which others believe havemerit, and some seeing as totally and completelywithout merit suits which others see as only marginallymeritless. Suits which all reasonable lawyers agreetotally lack merit-that is, those which lack probablecause-are the least meritorious of all meritless suits.Only this subgroup of meritless suits present[s] noprobable cause.’ [Citations.]” (Jarrow Formulas,supra, 31 Cal.4th 728, 743, fn. 13, 3 Cal.Rptr.3d 636,74 P.3d 737, quoting Roberts v. Sentry Life Insurance(1999) 76 Cal.App.4th 375, 382, 90 Cal.Rptr.2d 408.)

[12][13][14][15][16] The element of malice in amalicious prosecution claim-in contrast to the probablecause element decided by the court under an objectivestandard-is one that “relates to the subjective intent orpurpose with which the defendant acted in initiating theprior action, and … the defendant’s motivation is aquestion of fact to be determined by the jury.[Citations.]” (Sheldon Appel, supra, 47 Cal.3d at p.874, 254 Cal.Rptr. 336, 765 P.2d 498.) Factors relevantto malice include the defendant’s subjective beliefregarding the validity of the claim, and (in the case ofmalicious prosecution against the attorney) the extent ofany research or investigation by the attorneyprosecuting the prior suit. (Id. at p. 883, 254 Cal.Rptr.336, 765 P.2d 498.) Malice may not only consist of illwill or hostility toward the malicious-prosecutionplaintiff, but may also result where the prior suit was“instituted primarily for an improper purpose.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 383, 295P.2d 405; see also Downey Venture v. LMI Ins. Co.(1998) 66 Cal.App.4th 478, 499, 78 Cal.Rptr.2d 142[malice in malicious prosecution claim consists of suitbrought “for the intentionally wrongful purpose ofinjuring another person”].) FN12 Typically-since it israre that there will be a “smoking gun” admission ofimproper motive-malice is established “bycircumstantial evidence and inferences drawn from theevidence.” (HMS Capital, Inc. v. Lawyers Title Co.,supra, 118 Cal.App.4th 204, 218, 12 Cal.Rptr.3d 786.)Malice cannot be established simply by a showing ofthe absence of probable cause, although the fact that theprior suit was objectively untenable is a factor that maybe considered on the issue of malice. (Ibid.)

FN12. In Albertson, the court noted that four instancesdemonstrating malice in a civil malicious prosecutioncase were where the prior suit was commenced (1) bya party who did not believe the claim to be valid; (2)chiefly as a result of hostility or ill will; (3) solely todeprive the party being sued of the beneficial use of thatparty’s property; or (4) for the purpose of extracting asettlement bearing no relationship to the claim.(Albertson v. Rabott, supra, 46 Cal.2d at p. 383, 295P.2d 405.)

2. Unfair competition law claims generally

*8 [17][18][19] Business and Professions Code section17200 provides: “As used in this chapter, unfaircompetition shall mean and include any unlawful, unfairor fraudulent business act or practice and unfair,deceptive, untrue or misleading advertising and any actprohibited by Chapter 1 (commencing with Section17500) of Part 3 of Division 7 of the Business andProfessions Code.” As our high court has stated, “[t]heLegislature intended this ‘sweeping language’ toinclude ‘ “anything that can properly be called abusiness practice and that at the same time is forbiddenby law.” ‘ [Citation.]” (Bank of the West v. SuperiorCourt (1992) 2 Cal.4th 1254, 1266, 10 Cal.Rptr.2d 538,833 P.2d 545, quoting Barquis v. Merchants CollectionAssn. (1972) 7 Cal.3d 94, 111, 113, 101 Cal.Rptr. 745,496 P.2d 817 (Barquis ).) The purpose of the UCL “isto protect both consumers and competitors bypromoting fair competition in commercial markets forgoods and services. [Citation.]” (Kasky v. Nike, Inc.(2002) 27 Cal.4th 939, 949, 119 Cal.Rptr.2d 296, 45P.3d 243, citing Barquis, supra, at p. 110, 101Cal.Rptr. 745, 496 P.2d 817.) Thus, the scope of theUCL (Bus. & Prof.Code, § 17200 et seq.) is “broad.”(Cel-Tech Communications, Inc. v. Los AngelesCellular Telephone Co. (1999) 20 Cal.4th 163, 180, 83Cal.Rptr.2d 548, 973 P.2d 527 (Cel-Tech ).) FN13 It“covers a wide range of conduct.” (Korea Supply Co. v.Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143,131 Cal.Rptr.2d 29, 63 P.3d 937.) But “an action underthe UCL ‘is not an all-purpose substitute for a tort orcontract action.’ [Citation.]” (Id. at p. 1150, 131Cal.Rptr.2d 29, 63 P.3d 937.)

FN13. California’s electorate narrowed the scope of theUCL in 2004 by passing Proposition 64. Its intent was,inter alia, “to eliminate frivolous [UCL] lawsuits whileprotecting the right of individuals to retain an attorneyand file an action for relief pursuant to Chapter 5”(Ballot Pamp., Gen. Elec. (Nov. 2, 2004) text of Prop.64, § 1(d), p. 109); “to prohibit private attorneys fromfiling lawsuits for unfair competition where they haveno client who has been injured in fact under thestanding requirements of the United StatesConstitution” (id., § 1(e)); and to provide “that only theCalifornia Attorney General and local public officialsbe authorized to file and prosecute actions on behalf ofthe general public.” (id., § 1(f).) Proposition 64′sprovisions included-by amendment to Business andProfessions Code section 17204-the elimination of theright of a person “acting for the interests of itself, itsmembers or the general public” to bring a UCL suit,changing the language of the statute to read that aperson could bring suit only if the person “has sufferedinjury in fact and has lost money or property as a resultof such unfair competition.” (Ballot Pamp., Gen. Elec.(Nov. 2, 2004) text of Prop. 64, § 3, p. 109.) Theproposition took effect on “the day after the electionunless the measure provides otherwise.” (Cal. Const.art. II, § 10, subd. (a).) Since Proposition 64 containedno specific provision for its effectiveness, it took effecton November 3, 2004. There is a presentcontroversy-which is pending resolution by ourSupreme Court-as to whether Proposition 64 hasretroactive application to any case pending as ofNovember 3, 2004. (Cf. Californians for DisabilityRights v. Mervyn’s, LLC, review granted Apr. 27, 2005,S131798 [First District Court of Appeal, Division Four,holding proposition not retroactive], with Branick v.Downey Savings & Loan Assn., review granted April27, 2005, S132433 [Second District Court of Appeal,Division Five, holding proposition retroactive] ). Butsince Lynch’s UCL action was concluded in June 2004with the Supreme Court’s denial of Lynch’s petition forreview, the prior suit was therefore governed byBusiness and Professions Code section 17200 as itexisted before the passage of Proposition 64.

[20] A UCL action “ ‘to redress an unlawful businesspractice “borrows” violations of other laws and treatsthese violations, when committed pursuant to businessactivity, as unlawful practices independently actionableunder [Business and Professions Code] section 17200et seq. and subject to the distinct remedies providedthereunder.’ “ (Farmers Ins. Exchange v. SuperiorCourt (1992) 2 Cal.4th 377, 383, 6 Cal.Rptr.2d 487,826 P.2d 730.) The UCL states that “[u]nless otherwiseexpressly provided, the remedies or penalties providedby this chapter are cumulative to each other and to theremedies or penalties available under all other laws ofthis state.” (Bus. & Prof.Code, § 17205.) Thus, ourSupreme Court has held that even though a particularact is proscribed by another statute in which no privateright of action is specifically provided, this does notpreclude the “borrowing” of a violation of that otherstatute by a private UCL plaintiff. (Stop YouthAddiction, supra, 17 Cal.4th 553, 565-567, 71Cal.Rptr.2d 731, 950 P.2d 1086; see also Kasky v. Nike,Inc., supra, 27 Cal.4th at p. 950, 119 Cal.Rptr.2d 296,45 P.3d 243.) For example, the fact that Penal Codesection 308 criminalized the knowing sale of tobacco tominors was held not to have “impliedly preempted” thebringing of a private UCL suit against various retailersto enjoin that activity. (Stop Youth Addiction, supra, atp. 572, 71 Cal.Rptr.2d 731, 950 P.2d 1086; but seeRubin v. Green (1993) 4 Cal.4th 1187, 1204, 17Cal.Rptr.2d 828, 847 P.2d 1044 [litigation privilegeconstituted absolute bar to UCL suit]; Safeco Ins. Co.v. Superior Court (1990) 216 Cal.App.3d 1491,1493-1494, 265 Cal.Rptr. 585 [UCL could not be usedto circumvent prohibition against direct action againstinsurer under decision in Moradi-Shalal v. Fireman'sFund Ins. Companies (1988) 46 Cal.3d 287].)

*9 At the time of Lynch’s initiation and prosecution ofthe prior suit, there was broad standing to sue under theUCL; a UCL action could be brought not only by publicenforcement officials (i.e., the Attorney General orcounty district attorney), but also “by any person actingfor the interest of itself, its members or the generalpublic.” (Former Bus. & Prof.Code, § 17204; seeStats.1993, ch. 926, § 2, amended by Initiative Measure(Prop. 64, § 3, approved Nov. 2, 2004).) FN14 TheUCL defines “person” to “mean and include naturalpersons, corporations, firms, partnerships, joint stockcompanies, associations and other organizations ofpersons.” (Bus. & Prof.Code, § 17201.) Our courts“have consistently upheld the right of both individualpersons and organizations under the [UCL] to sue onbehalf of the public for injunctive relief as ‘privateattorney[s] general,’ even if they have not themselvesbeen personally harmed or aggrieved. [Citations.]”(Consumers Union of United States, Inc. v. FisherDevelopment, Inc. (1989) 208 Cal.App.3d 1433, 1439,257 Cal.Rptr. 151; see also AICCO, Inc. v. InsuranceCo. of North America (2001) 90 Cal.App.4th 579, 592,109 Cal.Rptr.2d 359 [“broad language” of Bus. &Prof.Code, § 17204 permits suit by nonaggrievedparties on behalf of others].) FN15

FN14. Prior to November 2004, the statute read asfollows: “Actions for any relief pursuant to this chaptershall be prosecuted exclusively in a court of competentjurisdiction by the Attorney General or any districtattorney or by any county counsel authorized byagreement with the district attorney in actions involvingviolation of a county ordinance, or any city attorney ofa city, or city and county, having a population in excessof 750,000, and, with the consent of the districtattorney, by a city prosecutor in any city having afull-time city prosecutor or, with the consent of thedistrict attorney, by a city attorney in any city andcounty in the name of the people of the State ofCalifornia upon their own complaint or upon thecomplaint of any board, officer, person, corporation orassociation or by any person acting for the interests ofitself, its members or the general public.” (Stats.1993,ch. 926, § 2, pp. 5198-5199.) As we have noted (see fn.13, ante ), one of the chief results of the passage ofProposition 64 was the elimination of standing by aprivate UCL plaintiff except where that person hassuffered direct injury as a result of the act of unfaircompetition complained of.

FN15. But see Stop Youth Addiction, supra, 17 Cal.4that pp. 584-598, 71 Cal.Rptr.2d 731, 950 P.2d 1086,dissenting opinion of Brown, J.: “[A] judicialconstruction of [Business and Professions Code] section17204 that confers universal citizen standing to enforcethe UCL threatens the constitutional separation ofpowers.” (Id. at p. 593, 71 Cal.Rptr.2d 731, 950 P.2d1086 (dis. opn. of Brown, J.).) “[A] citizen suit underthe UCL based upon [the ‘borrowed’ criminal statute]is not a private, civil analogue to a criminalprosecution. Instead, it is a kind of private usurpation ofa criminal enforcement power conferred exclusively ona class of executive officers.” (Id. at p. 594, 71Cal.Rptr.2d 731, 950 P.2d 1086 (dis. opn. of Brown,J.).)

[21][22][23] Under the broad scope of the UCL, “[t]hestatutory language referring to ‘any unlawful, unfair orfraudulent’ practice (italics added) makes clear that apractice may be deemed unfair even if not specificallyproscribed by some other law. ‘Because Business andProfessions Code section 17200 is written in thedisjunctive, it establishes three varieties of unfaircompetition-acts or practices [that] are unlawful, orunfair, or fraudulent. “In other words, a practice isprohibited as ‘unfair’ or ‘deceptive’ even if not‘unlawful’ and vice versa.” ‘[Citations.]” (Cel-Tech,supra, 20 Cal.4th at p. 180, 83 Cal.Rptr.2d 548, 973P.2d 527.) “ ‘[T]he Legislature … intended by thissweeping language to permit tribunals to enjoinon-going wrongful business conduct in whatevercontext such activity might occur. Indeed, … the sectionwas intentionally framed in its broad, sweepinglanguage, precisely to enable judicial tribunals to dealwith the innumerable “ ‘new schemes which the fertilityof man’s invention would contrive.’ “ (AmericanPhilatelic Soc. v. Claibourne (1935) 3 Cal.2d 689, 698,46 P.2d 135.)’ “ (Id. at p. 181, 46 P.2d 135.) And aUCL plaintiff ordinarily need not show defendant’sintent to injure or harm: “The UCL imposes strictliability when property or monetary losses areoccasioned by conduct that constitutes an unfairbusiness practice. [Citation.]” (Cortez v. Purolator AirFiltration Products Co. (2000) 23 Cal.4th 163, 181, 96Cal.Rptr.2d 518, 999 P.2d 706.)

[24] The Supreme Court has explained that a UCLaction is not barred simply because there is noparticular law that specifically prohibits the conductcomplained of. (Cel-Tech, supra, 20 Cal.4th at pp.182-183, 83 Cal.Rptr.2d 548, 973 P.2d 527.) Rather, aUCL action is barred only if another law specificallybars the subject UCL action or specifically permits theconduct complained of. (Id. at p. 183, 83 Cal.Rptr.2d548, 973 P.2d 527; see also id . at p. 184, 83Cal.Rptr.2d 548, 973 P.2d 527: “[C]ourts may not usethe unfair competition law to condemn actions theLegislature permits. Conversely, the Legislature’s merefailure to prohibit an activity does not prevent a courtfrom finding it unfair. Plaintiffs may not ‘plead around’a ‘safe harbor,’ but the safety must be more than theabsence of danger.”) (Fn.omitted.)

*10 [25] Where the UCL plaintiff alleges that thedefendant (who is a competitor) has committed an“unfair” act or practice, the test of whether the UCL’s“unfair” prong has been satisfied is whether the“conduct … threatens an incipient violation of anantitrust law, or violates the policy or spirit of one ofthose laws because its effects are comparable to or thesame as a violation of the law, or otherwise significantlythreatens or harms competition.” (Cel-Tech, supra, 20Cal.4th at p. 187, 83 Cal.Rptr.2d 548, 973 P.2d 527, fn.omitted.) FN16

FN16. Justice Kennard decried the Cel-Tech court’s testfor determining whether the conduct of a directcompetitor to a plaintiff is “unfair” under the UCL asbeing vague and one that would “magnify theuncertainty that businesses face in trying to comply withthe unfair competition law.” (Cel-Tech, supra, 20Cal.4th at p. 192, 83 Cal.Rptr.2d 548, 973 P.2d 527(conc. & dis. opn. of Kennard, J.).) “I can imagine nogreater recipe for confusion and uncertainty than themajority’s penumbral antitrust threat standard. It isdifficult enough for courts and businesses alike todetermine whether a business practice amounts to anactual violation of the antitrust laws prohibitingrestraint of trade or exclusionary monopolistic conduct.A business seeking to guide its competitive conduct bythe majority’s standard will be put to the impossible taskof deciding whether its conduct, even though not aviolation of the antitrust laws, violates the ‘spirit’ of theantitrust laws or is an ‘incipient’ violation of those lawsor is a threat to competition.” (Id. at p. 200, 83Cal.Rptr.2d 548, 973 P.2d 527 (conc. & dis. opn. ofKennard, J.).)

But where the act or practice under the UCL arises outof a consumer matter, the definition of “unfair” is lessclear, as the Cel-Tech test was limited to UCL actionsalleging unfair acts or practices against a competitor ofthe plaintiff. (Cel-Tech, supra, 20 Cal.4th at p. 187, fn.12, 83 Cal.Rptr.2d 548, 973 P.2d 527.) Some caseshave applied the Cel-Tech test to UCL consumer casesas well. For instance, in Schnall v. Hertz Corp. (2000)78 Cal.App.4th 1144, 1166, 93 Cal.Rptr.2d 439, theappellate court-in a UCL class action by a car renteragainst a rental car company-after noting that the casediffered from Cel-Tech because it was not an actionbetween competitors, applied the Cel-Tech test “thatany claims of unfairness under the UCL should bedefined in connection with a legislatively declaredpolicy,” and concluded that the test was satisfied in thatinstance. (See also Gregory v. Albertson’s, Inc. (2002)104 Cal.App.4th 845, 854, 128 Cal.Rptr.2d 389.) Othercourts have noted that the court in Cel-Tech, whilecritical of existing standards for determining unfairnessin consumer cases under the UCL, declined to providea definitive test. (See Walker v. Countrywide HomeLoans, Inc. (2002) 98 Cal.App.4th 1158, 1170, 121Cal.Rptr.2d 79.) As the Walker court put it: “No cleartest to determine what constitutes an unfair businesspractice has been established in California. One courthas said that an unfair business practice is one that‘offends an established public policy or when thepractice is immoral, unethical, oppressive, unscrupulousor substantially injurious to consumers’ (People v. CasaBlanca Convalescent Homes, Inc. (1984) 159Cal.App.3d 509, 530, 206 Cal.Rptr. 164), and anothercourt has stated that to determine whether a businesspractice is unfair, courts must ‘ “weigh the utility of thedefendant’s conduct against the gravity of the harm tothe alleged victim….” ‘ (State Farm Fire & CasualtyCo. v. Superior Court (1996) 45 Cal.App.4th 1093,1104, 53 Cal.Rptr.2d 229.)” (Ibid.; see also Smith v.State Farm Mutual Automobile Ins. Co. (2001) 93Cal.App.4th 700, 718-719, 113 Cal.Rptr.2d 399.)

3. Merits of Paulus’s malicious prosecution claim

[26] We now apply the above principles to evaluatePaulus’s contention that he made a prima facie showingbelow to support his claim of malicious prosecutionagainst Lynch. We focus first on the element ofprobable cause.

Lynch alleged a UCL claim both on its own behalf asPaulus’s competitor and as a private attorney general.The essence of its claim was that the proposedDealership was based upon unlawful land-use approvalsby the City and, further, that Paulus would receive, ineffect, an illegal public subsidy of over 1.2 milliondollars to establish and operate the Dealership. Throughthis public subsidy (Lynch alleged), Paulus would gainan unfair competitive advantage in the marketplace tothe detriment of Lynch. The proposed Dealershipallegedly threatened both Lynch and competition ingeneral.

*11 As we discuss below, irrespective of whetherLynch’s UCL claim is evaluated under the “unlawful” or“unfair” prong, it was objectively tenable. Because theprior suit was not one that “ ‘all reasonable lawyers[would] agree totally lack[ed] merit’ “ (JarrowFormulas, supra, 31 Cal.4th 728, 743, fn. 13, 3Cal.Rptr.3d 636, 74 P.3d 737), the element of absenceof probable cause essential to Paulus’s maliciousprosecution claim was missing.

First, Lynch’s claim, on its face, appeared to have beenconsistent with the UCL’s broad purpose of“protect[ing] both consumers and competitors bypromoting fair competition in commercial markets forgoods and services.” (Kasky v. Nike, Inc., supra, 27Cal.4th at p. 949, 119 Cal.Rptr.2d 296, 45 P.3d 243.)At least superficially, the prior suit alleged that theproposed Dealership threatened competition becausethe allegedly illegal public subsidy to Paulus wouldpromote an unlevel playing field. Lynch averred that thepublic would be harmed by development of theDealership because it would have the effect ofeliminating Lynch as a competitor; as a result of theallegedly illegal public subsidy, Paulus would be ableto significantly undercut Lynch’s prices.

[27] Second, “[v]irtually any law or regulation-federalor state, statutory or common law-can serve as [a]predicate for a [Business and Professions Code section]17200 ‘unlawful’ violation.” (Stern, Bus. & Prof.Code,§ 17200 Practice (The Rutter Group 2006) ¶ 3:56, p.3-13.) Thus, examples of UCL claims properly alleging“unlawful” conduct, while not boundless, are seeminglyso. As may be relevant here, for instance, violations ofenvironmental statutes may serve as predicates for aUCL claim based on “unlawful” business acts orpractices. (See, e.g., Southwest Marine, Inc. v. Triple AMach. Shop, Inc. (N.D.Cal.1989) 720 F.Supp. 805,807-808 (Southwest Marine ) [violation of HazardousWaste Control Act, Health & Saf.Code, § 25189.5];Hewlett v. Squaw Valley Ski Corp. (1997) 54Cal.App.4th 499, 520-525, 63 Cal.Rptr.2d 118 (Hewlett) [violations of Z'berg-Nejedly Forest Practice Act, Pub.Res.Code, § 4511 et seq .]; People v. K. Sakai Co. (1976) 56 Cal.App.3d 531, 128 Cal.Rptr. 536 [violationof Endangered Species Act, Pen.Code, §§ 653o-653r].)FN17 Likewise, a UCL “unlawful” claim may befounded on the allegation of a secret rebate or unearnedprice discount. (Saunders v. Superior Court (1994) 27Cal.App.4th 832, 840-841, 33 Cal.Rptr.2d 438.)Moreover, violations of local ordinances may be“borrowed” to establish a UCL claim based upon“unlawful” acts or practices. (City and County of SanFrancisco v. Sainez (2000) 77 Cal.App.4th 1302, 92Cal.Rptr.2d 418 [building and housing code violations];Hewlett, supra, at p. 532, 63 Cal.Rptr.2d 118 [violationof zoning ordinance, specifically, a conditional usepermit]; Consumers Union of U.S., Inc. v. Alta-DenaCertified Dairy (1992) 4 Cal.App.4th 963, 6Cal.Rptr.2d 193 [violation of county ordinanceregulating sale of unpasteurized milk products].)

FN17. The Southwest Marine case involved a rathernovel theory. There, the plaintiff-the defendant’scompetitor and an unsuccessful bidder on a Navycontract-alleged that the defendant had been awardedthe Navy contract because he was able to submit a lowbid solely because of his illegal (but economical)disposal of hazardous wastes. (Southwest Marine,supra, 720 F.Supp. at p. 808.) The court concluded thatthe plaintiff thereby stated a claim for relief under theUCL because it “fit [ ] within [the] historical conceptionof the law.” (Ibid.)

Lynch’s UCL claim was based upon “unlawful” conductwith respect to an allegedly illegal public subsidy, andland-use approvals that purportedly constitutedviolations of CEQA, of section 1094.5, the ZoningVariance Statute (Gov.Code, § 65906 et seq.), and localCity ordinances. FN18 Under these circumstances, weare loath to conclude that Lynch’s claim under theUCL’s “unlawful” prong was not objectively tenable.(Cf. Hewlett, supra, 54 Cal.App.4th at p. 532, 63Cal.Rptr.2d 118 [violation of conditional use permit];Saunders v. Superior Court, supra, 27 Cal.App.4th atpp. 840-841, 33 Cal.Rptr.2d 438 [allegations that courtreporters charged disparate rates for services and thatparties charged higher rates were not informed ofdisparity sufficient to support UCL claim under eitherthe “unlawful” or “unfair” prong].) FN19

FN18. Paulus makes much of the fact that Lynchbrought the UCL action against the City and relatedCity entities, which parties were clearly immune fromsuit. (See, e.g., People for the Ethical Treatment ofAnimals, Inc. v. California Milk Producers AdvisoryBd. (2005) 125 Cal.App.4th 871, 22 Cal.Rptr.3d 900;Community Memorial Hosp. v. County of Ventura(1996) 50 Cal.App.4th 199, 209-211, 56 Cal.Rptr.2d732; Santa Monica Rent Control Bd. v. Bluvshtein(1991) 230 Cal.App.3d 308, 318, 281 Cal.Rptr. 298.)The fact that Lynch joined parties that were immunefrom suit has no bearing on whether the prior suit wasobjectively tenable as to Paulus (a private individual).

FN19. We do not suggest that either Hewlett, supra, 54Cal.App.4th 499, 63 Cal.Rptr.2d 118, or Saunders v.Superior Court, supra, 27 Cal.App.4th 832, 33Cal.Rptr.2d 438, may be considered to be definitiveauthority for the proposition that the allegations inLynch’s suit against Paulus established a claim underthe UCL. Those cases are factually dissimilar from thecase before us. Nonetheless, they may be relied upon asfurnishing some basis for finding Lynch’s claim to havebeen objectively tenable.

*12 [28] Third, “[t]he ‘unfair’ prong of the UCL[citation] intentionally provides courts with broaddiscretion to prohibit new schemes to defraud[citation].” (Rushing et al., Matthew Bender PracticeGuide: California Unfair Competition and BusinessTorts (2006) Unfair Competition, § 2.11[1], p. 2-32;see also Motors, Inc. v. Times Mirror Co. (1980) 102Cal.App.3d 735, 740, 162 Cal.Rptr. 543.) FN20 Thus,the fact that the challenged practice or act was notpreviously condemned by statute or case authoritypresents no impediment to a finding that it is “unfair”under the UCL. (See, e.g., Allied Grape Growers v.Bronco Wine Co. (1988) 203 Cal.App.3d 432, 450-451,249 Cal.Rptr. 872; People v. James (1981) 122Cal.App.3d 25, 35-36, 177 Cal.Rptr. 110 (James ).)

FN20. In an oft-quoted passage (see, e.g., Ford DealersAssn. v. Department of Motor Vehicles (1982) 32Cal.3d 347, 368-369, 185 Cal.Rptr. 453, 650 P.2d 328),an appellate court over four decades ago explained thebreadth of the “unfair” prong of the UCL as follows:“[I]t would be impossible to draft in advance detailedplans and specifications of all acts and conduct to beprohibited [citations], since unfair or fraudulentbusiness practices may run the gamut of humaningenuity and chicanery.” (People ex rel. Mosk v.National Research Co. of Cal. . (1962) 201 Cal.App.2d765, 772, 20 Cal.Rptr. 516.)

In James, the defendants-a liquor store owner and theproprietor of a towing company-allegedly engaged inunfair practices, namely, towing vehicles parked at theliquor store without adequately warning patrons of thepossibility that their vehicles would be towed, andcharging excessive towing and related fees. (James,supra, 122 Cal.App.3d at pp. 29-31, 177 Cal.Rptr.110.) The appellate court specifically rejected the storeowner’s contention that he could not be held liable forunfair business practices under the UCL because nocourt had previously denounced the specific practicesat issue: “When we apply the principles enunciated inBarquis [, supra, 7 Cal.3d 94] to the instant case, thebusiness practices which defendants were shown to beengaged in were manifestly ‘unlawful, unfair, andfraudulent.’ Vehicles were hoisted or towed awaywithout sufficient warning; drivers were subjected topayment of fees to have their cars ‘let-down’ in theparking lot; they were coerced into paying either byphysical intimidation or misrepresentation concerningthe existence of liens or other rights of the tower; theywere charged unconscionable fees to retrieve theirvehicles from hoisting and impoundment; and they wereforced to waive claims for damage to their property inorder to get it back. There was also evidence that[defendant store owner] participated in these practicesby authorizing the impounds and taking kickbacks onfees. The fact that defendants’ scheme had never beendealt with by the appellate court does not render it anyless fundamentally dishonest, unfair, or unlawful.[Citation.]” (Id. at pp. 35-36, 101 Cal.Rptr. 745, 496P.2d 817.)

Here, Paulus’s contention that Lynch lacked probablecause to bring the underlying UCL suit implies theargument specifically rejected in Allied Grape Growersv. Bronco Wine Co., supra, 203 Cal.App.3d 432, 249Cal.Rptr. 872, and James, supra, 122 Cal.App.3d 25,177 Cal.Rptr. 110: That, because the alleged conduct ofacting on illegally approved land-use applications andaccepting improper public subsidies had never beendeclared “unfair” under the UCL by any court, it wastherefore a legally untenable claim under the UCL. Wereject that implicit contention. Further, while we cannotsay definitively that the alleged conduct challenged inthe prior suit was “unfair” under the UCL, we cannotconclude that no reasonable attorney-utilizing any ofthe various tests for “unfairness” (see pt. IV, sec. A 2,ante )-would reach that conclusion.

*13 Fourth, no cases have held that matters of thenature alleged by Lynch in the prior suit cannot as amatter of law serve as a basis for a UCL claim. We findthis fact to be also relevant on the question of whetherthe prior suit was objectively tenable. Paulus arguesthat, to the contrary, Saad v. City of Berkeley (1994) 24Cal.App.4th 1206, 30 Cal.Rptr.2d 95 (Saad ), is directauthority that Lynch’s UCL claim was not maintainable.That case did hold that administrative mandamus“under … section 1094.5 is the exclusive remedy forjudicial review of the quasi-adjudicatory administrativeaction of local level agencies,” such as action on aland-use permit or variance. (Id. at p. 1211, 30Cal.Rptr.2d 95.) But Saad concerned a direct challengeby the permittee to municipal action. It did not involvea claim by a third party alleging that it was adverselyaffected by a municipality granting allegedly illegalland-use applications. And the plaintiff in Saad did notallege that any actions taken constituted a violation ofthe UCL. Accordingly, we disagree with Paulus thatSaad precluded an action under the UCL of the kindfiled by Lynch. FN21

FN21. Paulus also cites State of California v. SuperiorCourt (1974) 12 Cal.3d 237, 115 Cal.Rptr. 497, 524P.2d 1281, and City of Santee v. Superior Court (1991)228 Cal.App.3d 713, 279 Cal.Rptr. 22, in support of theassertion that Lynch’s prior suit was not objectivelytenable. But like Saad, supra, 24 Cal.App.4th 1206, 30Cal.Rptr.2d 95, these cases merely held thatadministrative mandamus, not declaratory relief, is theappropriate remedy for a party aggrieved by anadministrative decision. Neither case involved a UCLclaim asserted by a third party. Accordingly, these casesdid not preclude the filing of the prior suit.

[29] In evaluating the probable cause element in amalicious prosecution claim, we are mindful that wemust render “a sensitive evaluation of legal principlesand precedents” (Sheldon Appel, supra, 47 Cal.3d at p.875, 254 Cal.Rptr. 336, 765 P.2d 498), and we “mustproperly take into account the evolutionary potential oflegal principles.” (Id. at p. 886, 254 Cal.Rptr. 336, 765P.2d 498.) Because of (1) the disfavored status ofmalicious prosecution claims, (2) the “rather lenientstandard” of probable cause (Wilson, supra, 28 Cal.4that p. 817, 123 Cal.Rptr.2d 19, 50 P.3d 733), (3) thebroad scope of the UCL, and (4) the UCL’s intendedpurpose of addressing, among other things, unfairconduct that “may run the gamut of human ingenuityand chicanery” (People ex rel. Mosk v. NationalResearch Co. of Cal., supra, 201 Cal.App.2d at p. 772,20 Cal.Rptr. 516), we conclude that Paulus failed tomake a prima facie showing that Lynch’s UCL claim(under either the “unlawful” or “unfair” prongs) lackedprobable cause. FN22

FN22. Our conclusion rejecting Paulus’s contention thatLynch lacked probable cause to bring the prior UCLsuit does not imply a view that the acts and practicesalleged in the prior suit, if proved, constituted unfaircompetition under the UCL. Under the “rather lenientstandard” of probable cause, we simply conclude herethat Lynch’s prior suit met the threshold of a successfuldefense against a malicious prosecution claim, i.e., thatit was not a suit that “ ‘all reasonable lawyers agreetotally lack[ed] merit.” (Jarrow Formulas, supra, 31Cal.4th at p. 743, fn. 13, 3 Cal.Rptr.3d 636, 74 P.3d737.)

In light of our conclusion that Paulus did not make aprima facie showing that the prior suit lacked probablecause, we hold that the trial court properly grantedLynch’s special motion to strike the maliciousprosecution claim under section 425.16. FN23

FN23. Because we find that Paulus did not meet hisburden of establishing that he would probably prevailon the merits (in that the element of the absence ofprobable cause is found wanting), we need not examinewhether Paulus presented sufficient evidence of maliceto support his malicious prosecution claim. (See Hiserv. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th640, 655, 4 Cal.Rptr.3d 249.)

B. Abuse of Process and Intentional InterferenceWith Contract Claims

[30] Paulus offered no opposition below to Lynch’santi-SLAPP motion to strike the claims for abuse ofprocess and for intentional interference with contractualrelations. The court therefore granted the motion tostrike as to those causes of action, noting that Paulusmade “no independent factual or legal argumentsregarding the strength of these claims.” Similarly,Paulus did not argue in his opening brief that the courterred in striking the abuse of process and interferencewith contract claims. The opening brief says nothingabout these claims beyond the conclusory statement inits penultimate sentence: “Paulus has met his burden toshow a prima [facie] case for malicious prosecution,abuse of process and intentional interference withcontract.”

*14 [31] We deem Paulus to have abandoned anychallenge to the order striking these two claims becauseof his failure to address the matter in his opening brief.Courts will ordinarily treat the appellant’s failure toraise an issue in his or her opening brief as a waiver ofthat challenge. (Tisher v. California Horse Racing Bd.. (1991) 231 Cal.App.3d 349, 361, 282 Cal.Rptr. 330.)Paulus’s conclusory statement at the end of his openingbrief does not preserve the issue for appeal. (SeeOsornio v. Weingarten (2004) 124 Cal.App.4th 304,316, 21 Cal.Rptr.3d 246, fn. 7: “ ‘Issues do not have alife of their own: if they are not raised or supported byargument or citation to authority, we consider the issueswaived.’ ”) And Paulus’s belated attempt to address theabuse of process and interference with contract claimsin his reply brief-after the respondents’ brief noted hisfailure to address the striking of these claims-did notsalvage these abandoned issues. (Shade Foods, Inc. v.Innovative Products Sales & Marketing, Inc. (2000) 78Cal.App.4th 847, 894-895, fn. 10, 93 Cal.Rptr.2d 364[arguments raised by appellant for first time in replybrief generally not considered, absent good reason forfailing to present them earlier]; Reichardt v. Hoffman(1997) 52 Cal.App.4th 754, 764, 60 Cal.Rptr.2d 770[issue raised for first time in reply brief generally notconsidered, “ ‘because such consideration woulddeprive the respondent of an opportunity to counter theargument’ “].) FN24

FN24. In so holding, we do not mean to imply thatPaulus’s contentions-were we not to find themforfeited-have any merit. In opposing the anti-SLAPPmotion, Paulus was required both to plead a legallysufficient cause of action and to make a prima facieshowing of facts by admissible evidence sufficient tosustain a favorable judgment. (1-800 Contacts, Inc. v.Steinberg (2003) 107 Cal.App.4th 568, 584, 132Cal.Rptr.2d 789.) As to the abuse of process andinterference with contract claims, he did neither. (SeeVogel v. Felice (2005) 127 Cal.App.4th 1006, 26Cal.Rptr.3d 350 [finding that the plaintiff opposinganti-SLAPP motion neither pleaded nor established byadmissible evidence valid defamation claim].) Theabuse of process claim clearly appears to have beenbarred. (See Oren Royal Oaks Venture v. Greenberg,Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157,1168-1169, 232 Cal.Rptr. 567, 728 P.2d 1202 [abuse ofprocess does not lie for filing and maintenance of priorlawsuit, even if done for an improper purpose].)Likewise, the interference with contract claim appearsbarred by the litigation privilege of Civil Code section47, subdivision (b). (Rubin v. Green, supra, 4 Cal.4th1187, 1202-1203, 17 Cal.Rptr.2d 828, 847 P.2d 1044[litigation privilege rendered the defendants' conduct“absolutely immune from civil tort liability, includingplaintiff's interference with contract and relatedclaims”]; see also Rusheen v. Cohen (2006) 37 Cal.4th1048, 39 Cal.Rptr.3d 516, 128 P.3d 713.)

V. Order Awarding Attorney Fees and Costs

[32] The anti-SLAPP statute requires an award ofattorney fees to a prevailing defendant: “In any actionsubject to subdivision (b), a prevailing defendant on aspecial motion to strike shall be entitled to recover hisor her attorney’s fees and costs.” (§ 425.16, subd. (c);see also Ketchum v. Moses (2001) 24 Cal.4th 1122,1131, 104 Cal.Rptr.2d 377, 17 P.3d 735 [attorney feesaward to prevailing defendant on granting ofanti-SLAPP motion is mandatory].) An appellate courtreviews the amount of mandatory attorney fees awardedby the trial court to a defendant who successfully bringsan anti-SLAPP motion for abuse of discretion.(Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400,1426, 103 Cal.Rptr.2d 174.)

[33] Here, Paulus filed a notice of appeal from both theorder granting the motion to strike complaint undersection 425.16 and the order granting attorney fees andcosts to Lynch. FN25 But he makes no argument in hisopening brief that the court erred in its award ofattorney fees and costs. The statement in the brief’sintroduction-that “[t]he order granting the anti-SLAPPmotion and award of attorneys’ fees should berever[s]ed”-does not constitute a sufficient argument topreserve the issue for appeal. (See Schoendorf v. U.D.Registry, Inc. (2002) 97 Cal.App.4th 227, 237, 118Cal.Rptr.2d 313 [conclusory statement by the plaintiffin appellate brief that the defendant did not makerequisite showing in anti-SLAPP motion insufficient topreserve issue].)

FN25. Paulus’s record designation did not include thereporter’s transcript from the hearing on that motion forattorney fees. Accordingly, the record on appeal doesnot include this transcript. (See Maria P. v. Riles (1987)43 Cal.3d 1281, 1295-1296, 240 Cal.Rptr. 872, 743P.2d 932 [burden on party challenging attorney feeaward to provide adequate record on appeal in order toassess claim of error].)

Because Paulus did not adequately preserve the issuefor appeal, we affirm the award of attorney fees andcosts in its entirety. (See Tuchscher DevelopmentEnterprises, Inc. v. San Diego Unified Port Dist. (2003)106 Cal.App.4th 1219, 1248, 132 Cal.Rptr.2d 57: “Theassertion [that there was “irregularity” in billing by thedefendants' attorneys] is unaccompanied by any citationto the record or any explanation of which fees wereunreasonable or duplicative. With this cursoryargument, [the plaintiff] has given us no basis to disturbthe trial court’s discretionary ruling on the attorney feesmotion.”) FN26 Moreover, as Lynch has prevailed inthis appeal, it is also entitled to an award of costs andattorney fees incurred in this proceeding. (Dove Audio,Inc. v. Rosenfeld, Meyer & Susman (1996) 47Cal.App.4th 777, 785, 54 Cal.Rptr.2d 830.)

FN26. Paulus argues in his reply brief-based on theassumption that the order granting the anti-SLAPPmotion must be reversed as to the malicious prosecutionclaim-that the attorney fee award should be reversedand the matter remanded to the trial court to assess theamount of fees incurred by Lynch solely in connectionwith moving to strike the abuse of process andinterference with contract claims. Because we haveconcluded that the order granting the anti-SLAPPmotion should be affirmed as to all three causes ofaction of Paulus’s complaint, we obviously reject thisuntimely contention.

DISPOSITION

*15 The order granting Lynch’s special motion to strikeis affirmed. The order awarding attorney fees and coststo Lynch is likewise affirmed. Lynch shall recover itsattorney fees and costs on appeal pursuant to section425.16, subdivision (c), the amounts of which shall bedetermined by the trial court. (See Huntingdon LifeSciences, Inc. v. Stop Huntingdon Animal Cruelty USA,Inc. (2005) 129 Cal.App.4th 1228, 1267, 29Cal.Rptr.3d 521.)

WE CONCUR: RUSHING, P.J., and PREMO, J.

Cal.App. 6 Dist.,2006.

Paulus v. Bob Lynch Ford, Inc.

— Cal.Rptr.3d —-, 2006 WL 1330865 (Cal.App. 6Dist.)