Court of Appeal, Fourth District, Division 1,California.
STAFFPRO, INC., et al., Plaintiffs and Appellants,
v.
ELITE SHOW SERVICES, INC., et al., Defendantsand Respondents.
No. D045755.
Feb. 24, 2006.
*684 Bacalski, Koska & Ottoson, Christopher J.Workman, San Diego, and Paul C. Johnson, Jr., forPlaintiffs and Appellants.
Gordon & Rees, Jan K. Buddingh, Jr., and KennethS. Perri, San Diego, for Defendant and RespondentElite Show Services, Inc., Gus Kontopuls and JohnKontopuls.
Klinedinst PC, Andrew N. Kohn, G. Dale Brittonand Gregor A. Hensrude, San Diego, for Defendantsand Respondents Rutherford & Rybacki and MatthewR. Rutherford.
IRION, J.
**1 A plaintiff in a malicious prosecution actionmust demonstrate that the litigation alleged to havebeen maliciously prosecuted was pursued to a legaltermination in the plaintiff’s favor. The primary issuein this appeal is whether this “favorable termination”element can be established where a plaintiff prevailedon some, but not all, of the causes of action assertedagainst it in the complaint in the underlying litigation. We conclude that in such circumstances, a plaintiffcannot establish favorable termination and isconsequently precluded from maintaining asubsequent malicious prosecution action.
FACTS
In the instant malicious prosecution action, StaffPro,Inc. [FN1] contends that it was the victim of a meritlesscivil action, maliciously prosecuted by Elite ShowServices, Inc. [FN2] The relevant facts are as follows:
FN1. The plaintiffs in the maliciousprosecution action are StaffPro, Inc. and itsowner, Cory Meredith, who were thedefendants in the underlying action. We referto these plaintiffs collectively as “StaffPro.”
FN2. The defendants in the maliciousprosecution action are: Elite Show Services,Inc.; its owners, Gus and John Kontopuls; itslaw firm in the underlying action, Rutherford& Rybacki, LLP (Rutherford LLP); and themanaging partner of Rutherford LLP,Matthew R. Rutherford. Except wherespecificity is required, we refer to thesedefendants collectively as “Elite.”
StaffPro and Elite are competitors in the event-staffingindustry. In May 2001, Elite filed suit against StaffProand two other unrelated defendants in superior court.[FN3] Elite’s complaint (the Complaint) *685 allegedthat StaffPro was engaging in unlawful practicesdesigned to “artificially lower [StaffPro’s] cost of laborand to diminish or destroy competition for securityguard and traffic control services in San Diego.” TheComplaint specifically singled out a number of suchpractices, including using unlicensed personnel toperform security officer functions, utilizing securityguard personnel who did not possess valid “guardcards” as required by state law, allowing unlicensedemployees to direct traffic at events, and staffing eventswith group labor paid by lump-sum payments to thirdparty organizations without required withholdings.
FN3. These other defendants settled Elite’sclaims against them prior to the conclusion ofthe trial and are not parties to this appeal.
The Complaint asserted three causes of action againstStaffPro, alleging that StaffPro: (i) engaged in unlawfulbusiness practices in violation of Business andProfessions Code section 17200; (ii) offeredbelow-cost services in violation of Business andProfessions Code section 17043; and (iii) underbidElite on a number of specifically enumerated contracts,constituting intentional interference with prospectivebusiness advantage. Each of Elite’s causes of action wasbased on StaffPro’s alleged reliance on the unlawfulpractices specified above to obtain a competitiveadvantage. Elite sought injunctive relief, attorney feesand monetary damages.
After filing the Complaint, Elite sought a preliminaryinjunction to immediately preclude StaffPro fromengaging in the allegedly unlawful practices. The trialcourt granted the injunction in part, finding that Elite”established a reasonable probability of prevailing onthe merits of its case” with respect to the group laborallegations. The court’s order stated: “Staffpro isobtaining an unfair advantage by not treating [grouplaborers] as employees and providing workers’compensation and state disability benefits and payingappropriate employment and payroll taxes.”
As the litigation progressed, StaffPro filed a motion forsummary adjudication as to Elite’s second cause ofaction. The trial court denied the motion, finding thatElite had demonstrated “a triable issue” with respect tothe allegations in that cause of action.
**2 Immediately prior to trial, Elite dismissed its thirdcause of action and withdrew its claim for monetarydamages as to its second cause of action, limiting theissues to be resolved at trial to the legality of StaffPro’sbusiness practices and Elite’s requests for injunctiverelief and attorney fees.
Trial commenced on December 17, 2002. At theconclusion of Elite’s presentation of evidence, StaffPromoved for judgment under Code of Civil Proceduresection 631.8. (See id., subd. (a) [“After a party hascompleted his presentation of evidence in a trial by thecourt, the other party … may move for a judgment”].) The motion was granted as to Elite’s second cause ofaction but denied as to the first; trial proceeded onElite’s first cause of action. At the conclusion of trial,the court granted relief to Elite, ordering StaffPro totake the following remedial measures: (1) “To ensureWorkers’ Compensation coverage is afforded to ‘grouplabor’ personnel, either by ensuring that each nonprofitorganization certifies such coverage or providing suchcoverage itself”; and (2) “To utilize only thosepersonnel licensed pursuant to Business [and]Professions Code section 7583.11 for the followingactivities: 1. Restraints upon or limitation of movementof the general public which, if escalated, requires forceand physical restraint; 2. Pat-downs requiring physicalintrusion into the personal space of a member of thegeneral public; 3. Car searches requiring physicalintrusion into the personal space of a *686 member ofthe general public.” With respect to StaffPro’s allegeduse of employees without proper “guard cards,” thecourt ruled that there was evidence supporting theallegations, but that “[n]eed for relief concerning theseestablished practices is rendered moot” by regulatorydevelopments that had become effective after trialcommenced. The court also recognized that there wasevidence that StaffPro unlawfully utilized uncertifiedpersons to control traffic, but relying in part onStaffPro’s contention that “it has recently becomelicensed to certify traffic control employees and isutilizing the license to certify those assigned to trafficcontrol duties,” the court declined to order relief. Concerning Elite’s allegations of other unlawfulpractices with respect to events staffed on schoolproperty, the court noted that the evidence, “whilesignificant, is insufficient … to warrant injunction.”
In addition to ordering the relief described above, thetrial court made a number of findings relevant to thedetermination of whether Elite’s lawsuit wasmeritorious. The court found that Elite “was informedand believed in good faith that the alleged unfairbusiness practices and unfair competitive practices hada serious negative impact upon plaintiff’s business inSan Diego County.” The court stated that “there is adearth of published opinion, definitions or case lawdealing with” the event staffing industry and a numberof “differing … opinions by members of the industry asto what is legal or illegal, fair or unfair.” Consequently,the court found the lawsuit provided a benefit to thepublic which “stands to benefit from a clarification ofthe use of licensed and unlicensed personnel who bothmanage and control them.” Finally, the court specifiedthat neither party was a prevailing party and each wouldbear its own costs and fees. [FN4]
FN4. Despite the court’s determination thatthere was no prevailing party, StaffPro wasable to recover costs pursuant to a pretrialCode of Civil Procedure section 998 offer ofsettlement. An appeal of the trial court’sdetermination of that issue resulted in apublished opinion of this Court, Elite ShowServices, Inc. v. Staffpro, Inc. (2004) 119Cal.App.4th 263, 266, 14 Cal.Rptr.3d 184. Contrary to various arguments of the parties inthis case, our opinion in that case offers nosupport for either party with respect to theissues now presented. (See People v. Banks(1993) 6 Cal.4th 926, 945, 25 Cal.Rptr.2d524, 863 P.2d 769 [“It is well settled thatlanguage contained in a judicial opinion is ‘”to be understood in the light of the facts andissue then before the court, and an opinion isnot authority for a proposition not thereinconsidered” ‘ “].)
**3 In April 2004, StaffPro filed the instant lawsuitalleging that Elite’s prosecution of the above-describedlawsuit, specifically the second and third causes ofaction of that lawsuit, constituted the tort of maliciousprosecution. Elite responded by moving under Code ofCivil Procedure section 425.16 (section 425.16) tostrike StaffPro’s malicious prosecution cause of action. The trial court granted Elite’s motion, ruling thatStaffPro failed to carry its burden under section 425.16of establishing a probability that it would prevail. Thecourt subsequently entered judgment in favor of Elite.
DISCUSSION
StaffPro appeals the trial court’s ruling that StaffProfailed to establish a probability that it would prevail ontwo of the elements of its malicious prosecution causeof action, namely, favorable termination and lack ofprobable case. We conclude that the trial court wascorrect with respect to the favorable terminationelement. As this is a sufficient ground for dismissal ofStaffPro’s action, we need not address the correctness ofthe trial court’s ruling *687 with respect to the probablecause element.
I
Applicable Legal Standards
We begin by summarizing the applicable legalstandards. Under section 425.16, the trial court wasrequired to strike StaffPro’s malicious prosecution causeof action unless StaffPro established “a probability” thatit would prevail on that claim. (§ 425.16, subd. (b)(1).) [FN5]
FN5. Section 425.16 provides, inter alia, that”[a] cause of action against a person arisingfrom any act of that person in furtherance ofthe person’s right of petition or free speechunder the United States or CaliforniaConstitution in connection with a public issueshall be subject to a special motion to strike,unless the court determines that the plaintiffhas established that there is a probability thatthe plaintiff will prevail on the claim.” (§425.16, subd. (b)(1).) StaffPro concedes thatthe instant malicious prosecution claimsatisfies the threshold requirement undersection 425.16 that “the challenged cause ofaction is one arising from protected activity.”(§ 425.16, subd. (b)(1); see Jarrow Formulas,Inc. v. LaMarche (2003) 31 Cal.4th 728, 741,3 Cal.Rptr.3d 636, 74 P.3d 737.)
[1] To make this showing, StaffPro had to demonstratea probability of prevailing with respect to each of theelements of its malicious prosecution action, namely,that Elite’s underlying action was (1) brought (orcontinued) without probable cause, (2) initiated withmalice, and (3) pursued to a legal termination inStaffPro’s favor. (See Zamos v. Stroud (2004) 32Cal.4th 958, 965-966, 12 Cal.Rptr.3d 54, 87 P.3d 802(Zamos ).) If a plaintiff cannot establish any one ofthese three elements, its malicious prosecution actionwill fail. (Ibid.; Sheldon Appel Co. v. Albert & Oliker(1989) 47 Cal.3d 863, 871-872, 254 Cal.Rptr. 336, 765P.2d 498 (Sheldon Appel ).)
[2] We review the trial court’s ruling on a section425.16 motion de novo (Zamos, supra, 32 Cal.4th at p.965, 12 Cal.Rptr.3d 54, 87 P.3d 802; HMS Capital, Inc.v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212,12 Cal.Rptr.3d 786 [“We review the trial court’s rulingson an anti-SLAPP motion de novo, conducting anindependent review of the entire record”] ); thesubstantive ground upon which we rule here, theelement of favorable termination in a maliciousprosecution action, is also a legal question for the courtto decide. (Sierra Club Foundation v. Graham (1999)72 Cal.App.4th 1135, 1149, 85 Cal.Rptr.2d 726 (SierraClub ) [“The element of favorable termination is for thecourt to decide; thus, our review is de novo”].)
II
StaffPro Failed to Demonstrate a Probability ofPrevailing on Its Malicious
Prosecution Action
The trial court ruled that StaffPro could not establishfavorable termination of the underlying lawsuit becauseElite was successful on its first cause of action andElite’s other two causes of action were not “severable”from that cause of action. StaffPro contends that thisruling was erroneous for two reasons. First, StaffProargues that the remedial order issued against it in theunderlying action should be considered a termination inStaffPro’s favor because the order was not as broad asan earlier settlement offer made by StaffPro. Second,StaffPro argues that even if Elite was successful on itsfirst cause of action, Elite’s second and third causes ofaction are severable from the first, and therefore canserve as an independent basis for StaffPro’s maliciousprosecution action. As discussed below, *688 we findno merit in either of StaffPro’s contentions.
The Favorable Termination Element
**4 [3][4][5] Prior to analyzing StaffPro’s contentions,we first define the concept of favorable termination. Tobe considered “favorable” for purposes of a maliciousprosecution action, a termination in the underlyingaction “must reflect the merits of the action and theplaintiff’s innocence of the misconduct alleged in thelawsuit.” (Pender v. Radin (1994) 23 Cal.App.4th1807, 1814, 29 Cal.Rptr.2d 36 (Pender ), italics added,citing Lackner v. LaCroix (1979) 25 Cal.3d 747, 750,159 Cal.Rptr. 693, 602 P.2d 393 (Lackner ).) “The keyis whether the termination reflects on the underlyingdefendant’s innocence. [Citations.] If the resolution ofthe underlying litigation ‘leaves some doubt as to thedefendant’s innocence or liability[, it] is not a favorabletermination, and bars that party from bringing amalicious prosecution action against the underlyingplaintiff.’ ” (Eells v. Rosenblum (1995) 36 Cal.App.4th1848, 1855, 43 Cal.Rptr.2d 323 (Eells ), alteration anditalics in original.) [FN6] Favorable termination “is anessential element of the tort of malicious prosecution,and it is strictly enforced.” (Ferreira v. Gray, Cary,Ware & Freidenrich (2001) 87 Cal.App.4th 409, 413,104 Cal.Rptr.2d 683 (Ferreira ).)
FN6. In its reply brief, StaffPro contends thatthe requirement that a termination reflect onthe plaintiff’s innocence “means only that theunderlying action must have been terminatedon the merits, and not on a procedural mattersuch as the statute of limitations.” This isincorrect. The requirement that a favorabletermination reflect on “the merits of theaction,” is simply one step in the broaderinquiry into whether that termination ” ‘tendsto indicate the innocence of the accused.’ “(Lackner, supra, 25 Cal.3d at p. 750, 159Cal.Rptr. 693, 602 P.2d 393 [the ” ‘theoryunderlying the requirement of favorabletermination is that it tends to indicate theinnocence of the accused’ “].) Consequently, atermination that “reflect[s] the merits” is not asubstitute for, but rather a prerequisite to afinding that termination reflects “the plaintiff’sinnocence of the misconduct alleged.” (Pender, supra, 23 Cal.App.4th at p. 1814, 29Cal.Rptr.2d 36.)
B. Elite’s First Cause of Action Did Not Terminatein StaffPro’s Favor
[6] On appeal, StaffPro first seeks to blunt thesignificance of the court’s order in the underlyinglitigation with respect to Elite’s first cause of action–anorder that required StaffPro to take a number ofremedial actions. StaffPro argues that this remedialorder should be considered a result favorable toStaffPro because it was “more limited in scope than theactions StaffPro agreed to undertake” as part of anearlier settlement offer. We disagree with StaffPro’sanalysis.
Well-established case law requires that a maliciousprosecution plaintiff demonstrate that thecomplained-of action was ” ‘pursued to a legaltermination in [the] plaintiff’s [ ] favor.’ ” (Crowley v.Katleman (1994) 8 Cal.4th 666, 676, 34 Cal.Rptr.2d386, 881 P.2d 1083 (Crowley ), italics added.) Wehave found no authority, and StaffPro cites none, tosuggest that there is an exception to the aboveformulation where an action is pursued to a terminationin the defendants’ favor, but the termination is lessfavorable than an earlier settlement proposal. In fact,the case law regarding settlements in the maliciousprosecution context strongly suggests that StaffPro’soffer to stipulate to what it characterizes as “the preciseinjunctive relief that Elite prayed for in its complaint”weakens rather than strengthens its case for favorabletermination, as it implies that StaffPro was not innocentof the conduct *689 alleged by Elite. (See, e.g.,Ferreira, supra, 87 Cal.App.4th at pp. 413-414, 104Cal.Rptr.2d 683 [“where both sides give up anything ofvalue in order to end the litigation, a party cannot laterclaim he received a favorable termination”].)
Thus, StaffPro’s contention is not an argument basedon existing case law, but an invitation, without statutoryor case authority, to broaden the malicious prosecutiontort to encompass a new category of lawsuits–those thatwere favorably terminated solely by reference to theparties’ earlier settlement positions. We decline thisinvitation. An expansion of the tort along the linessuggested by StaffPro would contradict our SupremeCourt’s pronouncement that “the tort of maliciousprosecution ‘should not be expanded,’ ” but containedwithin its already established boundaries. (Brennan v.Tremco Inc. (2001) 25 Cal.4th 310, 314, 105Cal.Rptr.2d 790, 20 P.3d 1086 (Brennan ) [relying on”trend against creating or expanding derivative tortremedies, including malicious prosecution” to supportruling that favorable termination of arbitration could notsupport malicious prosecution claim]; Crowley, supra,8 Cal.4th at p. 680, 34 Cal.Rptr.2d 386, 881 P.2d 1083[contours of right to bring malicious prosecution action”should not be expanded”]; cf. Sheldon Appel, supra,47 Cal.3d at p. 872, 254 Cal.Rptr. 336, 765 P.2d 498[malicious prosecution is “a disfavored cause of action”and consequently “the elements of the tort havehistorically been carefully circumscribed”].) Theseestablished boundaries leave no room for StaffPro’scontention that even where the favorable terminationelement cannot be established by a legal termination inthe malicious prosecution plaintiff’s favor (Crowley, atp. 676, 34 Cal.Rptr.2d 386, 881 P.2d 1083), it can stillbe shown by comparing a legal termination in thedefendant’s favor with the plaintiff’s earlier settlementoffer.
**5 In sum, we reject StaffPro’s contention that thefavorable termination element of the maliciousprosecution tort can be established by reference to theparties’ prior settlement positions. We conclude insteadthat Elite’s first cause of action, which resulted in acourt order requiring StaffPro to take remedial action,did not terminate in StaffPro’s favor. [FN7] (Eells,supra, 36 Cal.App.4th at p. 1855, 43 Cal.Rptr.2d 323[favorable termination cannot be established if “theresolution of the underlying litigation ‘leaves somedoubt as to the defendant’s innocence or liability’ “].) [FN8]
FN7. In its reply brief, StaffPro makes theadditional argument that the trial court, in itsorder, found “against Elite personally in everyrespect.” This somewhat misleading statementis based on the trial court’s determination thatthe “[t]he court finds that [Elite] has standingto proceed with this litigation,” but only as arepresentative plaintiff under Business andProfessions Code section 17200. From thisruling, StaffPro argues that dictum in CasaHerrera, Inc. v. Beydoun (2004) 32 Cal.4th336, 9 Cal.Rptr.3d 97, 83 P.3d 497 (CasaHerrera ) requires a finding of favorabletermination. (Id. at p. 342, 9 Cal.Rptr.3d 97,83 P.3d 497 [stating that favorable terminationcan be shown in a number of ways, includingwhere the trial court has “held that thedefendant, as a matter of law, violated no dutyto the plaintiff”].) We do not believe the CasaHerrera dictum, which did not consider thisissue, was meant to apply in this context. Acontrary conclusion would lead to the absurdresult that all representative actions would besubject to malicious prosecution claimsregardless of the result of the underlyinglitigation and the plaintiff’s guilt or innocenceof the allegations considered therein. (Ibid.[stating that focus of favorable terminationinquiry is the malicious prosecution “plaintiff’sinnocence of the misconduct alleged in thelawsuit”].)
FN8. StaffPro also emphasizes that the trialcourt ruled in the form of an order rather thanan injunction. We assign little significance tothis distinction as there was no suggestion thatthe court’s order was anything other than amandatory decree that StaffPro alter itspractices; the court stated that its decision torely on an order rather than the “drasticmeasure of regulation by injunction” was”premised heavily upon the pledges bycounsel of Staff Pro in the presence of its CEOand major stockholder to comply with the …order[ ] without the issuance of an injunction[–t]hese pledges were made on numerousoccasions on the record and were backed bythe extreme credibility of its counsel earnedby his performance during the trial.”
*690 B
Severability Is Not the Touchstone of theFavorable Termination Element
of a Malicious Prosecution Cause of Action
[7] Alternatively, StaffPro contends that its inability todemonstrate favorable termination of Elite’s first causeof action does not bar it from establishing that Elitemaliciously prosecuted its second and third causes ofaction. In making this argument, StaffPro contends thatthe favorable termination element of the maliciousprosecution tort must be determined with respect toeach “severable” cause of action, and that Elite’s secondand third causes of action, which terminated inStaffPro’s favor, are severable from the first.
StaffPro premises its argument on a statement fromSingleton v. Perry (1955) 45 Cal.2d 489, 497, 289P.2d 794 (Singleton ), that for a viable maliciousprosecution action, ” ‘ “it is not necessary that the whole[underlying] proceeding be utterly groundless, for, ifgroundless charges are maliciously and withoutprobable cause, coupled with others which are wellfounded, they are not on that account the lessinjurious.” ‘ ” This reliance on Singleton is unavailingand demonstrates the flaw that lies at the core ofStaffPro’s analysis, namely, the failure to distinguishbetween cases evaluating the probable cause element ofthe tort of malicious prosecution (such as Singleton )and those that concern the distinct element at issuehere–favorable termination.
[8][9] As we stated in Dalany v. American PacificHolding Corp. (1996) 42 Cal.App.4th 822, 829, 50Cal.Rptr.2d 13 (Dalany ), a case not cited by any of theparties to this appeal, our Supreme Court’s decision inCrowley, supra, 8 Cal.4th 666, 34 Cal.Rptr.2d 386, 881P.2d 1083, dictates that the severability analysisimplicit in Singleton is inapplicable to the favorabletermination element of the malicious prosecution tort. (Dalany, at p. 829, 50 Cal.Rptr.2d 13 [holding that”[t]he Supreme Court [in Crowley ] has recentlyemphasized that although for purposes of determiningprobable cause each theory asserted in a prior actionmust be separately considered, separate considerationof prior theories of claims is not appropriate withrespect to the element of favorable termination”].) Tothe contrary, for purposes of determining favorabletermination, ” ‘ “[t]he court in the action for maliciousprosecution will not make a separate investigation andretry each separate allegation without reference to theresult of the previous suit as a whole…. ” ‘ ” (Crowley,at p. 684, 34 Cal.Rptr.2d 386, 881 P.2d 1083, italicsadded.) Instead, ” ‘consideration should be given to thejudgment as a whole’ ” as it is ” ‘the decree or judgmentitself in the former action [that] is the criterion by whichto determine who was the successful party in suchproceeding.’ ” (Id. at p. 685, 34 Cal.Rptr.2d 386, 881P.2d 1083.) [FN9] Thus, the severability analysis *691that StaffPro urges us to apply in the instant case hasbeen explicitly rejected by our Supreme Court, whichrequires instead that we look to the judgment in theunderlying action ” ‘as a whole.’ ” (Crowley, supra, 8Cal.4th at pp. 684- 685, 34 Cal.Rptr.2d 386, 881 P.2d1083.) [FN10]
FN9. The favorable termination analysis inCrowley was arguably not required for thedecision in that case. Nevertheless, SupremeCourt “dictum, while not controlling authority,carries persuasive weight and should befollowed where it demonstrates a thoroughanalysis of the issue or reflects compellinglogic.” (Smith v. County of Los Angeles(1989) 214 Cal.App.3d 266, 297, 262Cal.Rptr. 754.)
FN10. While the parties all contend that weshould resolve the issue of favorabletermination by applying the “primary rights”severability analysis used in Freidberg, noneof the parties distinguish Crowley’s explicitdisapproval of that analysis. Rutherford LLP,the only party to specifically address the issue,argues that Crowley “does not change th [eseverability] rule,” because although theCrowley court “mentioned that the primaryright theory relied upon in Freidberg might beinappropriate,” the high court “has not offeredan alternative basis to determine severability.” Rutherford cites Hindin v. Rust (2004) 118Cal.App.4th 1247, 13 Cal.Rptr.3d 668(Hindin ) for the proposition that “the Courtsof Appeal still use primary right.” We findRutherford LLP’s contentions unavailing fortwo reasons. First, Hindin does not supportRutherford LLP’s argument, as that caseconcerned only the probable cause element ofthe malicious prosecution tort and itself notesthat Crowley “question[ed the] propriety ofrelying on the primary right theory to definethe prior action for purposes of the favorabletermination requirement.” (Hindin, at p. 1258,fn. 7, 13 Cal.Rptr.3d 668.) Second, as westated in Dalany, supra, 42 Cal.App.4th 822,50 Cal.Rptr.2d 13, the Crowley court did notsimply criticize the application of the primaryright theory, but the entire severabilityanalysis. Thus, there was no need for the highcourt to provide “an alternative basis todetermine severability.” Rather, as discussedpost, the court stated that the favorabletermination question must be resolved withoutreference to severability, but rather byevaluating the result of the ” ‘entire action.’ “(Crowley, supra, 8 Cal.4th at p. 685, 34Cal.Rptr.2d 386, 881 P.2d 1083.)
**6 We recognize that a handful of published opinionsof the California Courts of Appeal apply severabilityanalysis to determine the favorable termination elementof the tort of malicious prosecution. [FN11] With oneexception, however, these cases were decided prior toCrowley and our interpretation of that decision inDalany. The one exception, Sierra Club, supra, 72Cal.App.4th 1135, 85 Cal.Rptr.2d 726, is in conflictwith Dalany, and we find its analysis to be flawed.
FN11. (See, e.g., Tabaz v. Cal Fed Finance(1994) 27 Cal.App.4th 789, 794, 33Cal.Rptr.2d 134 [applying severabilityanalysis to allow malicious prosecutionlawsuit despite award to defendant inunderlying suit]; Paramount GeneralHospital Co. v. Jay (1989) 213 Cal.App.3d360, 369-370, 261 Cal.Rptr. 723 (ParamountGeneral ) [allowing lawsuit to go forwarddespite partially unfavorable termination ofunderlying action because causes of action”appear to have been severable”]; Freidbergv. Cox (1987) 197 Cal.App.3d 381, 388, 242Cal.Rptr. 851 [finding no favorabletermination where malicious prosecutiondefendant succeeded on one of its causes ofaction in underlying lawsuit because othercauses of action “were not separable”]; seealso 5 Witkin, Summary of Cal. Law (10th ed.2005) Torts, § 500, p. 734 [citing pre-Crowleydecisions for proposition that partial favorabletermination can be shown where “the causes ofaction in the underlying action were separateor severable”].)
Sierra Club rejects the position we espoused in Dalanythat “one must look to the judgment as a whole indeciding whether termination is favorable” (SierraClub, supra, 72 Cal.App.4th at p. 1152, 85 Cal.Rptr.2d726), and instead, in the following dicta from thatopinion, decides that favorable termination of severableclaims will support a claim for malicious prosecution:
“Groundless charges coupled maliciously and withoutprobable cause with well-founded causes are no lessinjurious for the coupling. (Singleton [, supra,] 45Cal.2d 489, 497-498, 289 P.2d 794.) Thus, amalicious prosecution plaintiff is not precluded fromestablishing favorable termination where severableclaims are adjudicated in his or her *692 favor.(Paramount General [, supra,] 213 Cal.App.3d 360,369-370 [261 Cal.Rptr. 723].)” (Sierra Club, supra,72 Cal.App.4th at p. 1153, 85 Cal.Rptr.2d 726, italicsadded.)
As our earlier analysis indicates, Sierra Club’sreasoning is deficient for at least three reasons.
First, the authorities Sierra Club cites for its conclusionare inapposite. The primary case Sierra Club relies on,Paramount General, predates Crowley and relies onFreidberg for its conclusion that favorable terminationcan be established through a severability analysis.Crowley’s explicit disapproval of the severabilityanalysis in Freidberg (see Crowley, supra, 8 Cal.4th atpp. 683-686, 34 Cal.Rptr.2d 386, 881 P.2d 1083)necessarily implies similar disapproval of that sameanalysis in Paramount General. The other case citedby Sierra Club, Singleton, is a probable cause casedecided decades prior to Crowley. Reliance on aprobable cause case that did not consider the element offavorable termination directly contradicts Crowley’sinstruction that these elements are analytically distinct. (Crowley, at p. 686, 34 Cal.Rptr.2d 386, 881 P.2d1083.)
Second, Sierra Club’s interpretation of Crowleyfocuses exclusively on, and in our view misinterprets,a minor point in the opinion. Sierra Club relies on aportion of Crowley that criticizes severability analysisbecause that analysis only determines whether theplaintiff obtained “at least a ‘ “partial favorabletermination,” ‘ ” leaving unanswered the ” ‘question ofpolicy’ ” as to whether such partial favorabletermination can support a malicious prosecution action. (Sierra Club, supra, 72 Cal.App.4th at p. 1153, 85Cal.Rptr.2d 726, quoting Crowley, supra, 8 Cal.4th atp. 686, 34 Cal.Rptr.2d 386, 881 P.2d 1083, italicsadded.) Our primary difference with Sierra Club is thatwe do not believe Crowley raises this “question ofpolicy” to leave it unresolved. Rather, the high courtanswers the question by subsequently announcing therule that a malicious prosecution plaintiff mustdemonstrate ” ‘favorable termination of the entire[underlying] action.’ ” (Crowley, at pp. 685-686, 34Cal.Rptr.2d 386, 881 P.2d 1083; see Dalany, supra, 42Cal.App.4th at p. 829, 50 Cal.Rptr.2d 13.) Such a rule,which requires judgment to have ” ‘been reached in theplaintiff’s favor in the prior action as a whole ‘ “(Crowley, at p. 686, 34 Cal.Rptr.2d 386, 881 P.2d1083, italics added), cannot coexist with an exceptionfor partial favorable termination.
**7 Third, whatever the merits of Sierra Club’sinterpretation of the portion of Crowley upon which itrelies, its conclusion that “a malicious prosecutionplaintiff is not precluded from establishing favorabletermination where severable claims are adjudicated inhis or her favor” (Sierra Club, supra, 72 Cal.App.4th atp. 1153, 85 Cal.Rptr.2d 726) cannot be reconciled withthe overall message of Crowley–that favorabletermination must be determined by evaluating ” ‘thejudgment as a whole’ ” (Crowley, supra, 8 Cal.4th at p.685, 34 Cal.Rptr.2d 386, 881 P.2d 1083). Sierra Club,in fact, makes no attempt to reconcile this conflict, orfor that matter the same conflict its opinion creates withDalany. Sierra Club’s analysis is therefore incomplete,and on that basis alone, unconvincing. [FN12]
FN12. We also note that it is solely SierraClub’s dicta, not its holding, that is in conflictwith Dalany. In Sierra Club, the court heldthat a plaintiff’s settlement of a lawsuit withrelated claims did not preclude a finding offavorable termination with respect to adifferent lawsuit that was resolved in aseparate proceeding in the plaintiff’s favor. (Sierra Club, supra, 72 Cal.App.4th at p.1152, 85 Cal.Rptr.2d 726.) The uniquescenario faced in Sierra Club is distinct fromthat at issue here–where a maliciousprosecution plaintiff attempts to separate thecauses of action contained in the same lawsuit.
*693 In sum, we decline to follow Sierra Club andinstead adhere to our previous interpretation of Crowleyas explained in Dalany that severability analysis isimproper in determining whether a maliciousprosecution plaintiff has demonstrated favorabletermination of an underlying lawsuit. [FN13] (Dalany,supra, 42 Cal.App.4th at p. 829, 50 Cal.Rptr.2d 13.)
FN13. Apart from Sierra Club, thepost-Crowley case law is in accord with thisconclusion. (See Casa Herrera, supra, 32Cal.4th at p. 341, 9 Cal.Rptr.3d 97, 83 P.3d497 [“To determine ‘whether there was afavorable termination,’ we ‘look at thejudgment as a whole in the prior action’ “],quoting Sagonowsky v. More (1998) 64Cal.App.4th 122, 129, 75 Cal.Rptr.2d 118[relying on Crowley and Dalany forproposition that “[w]e are to look at thejudgment as a whole in the prior action to testwhether there was a favorable termination”]; Hindin, supra, 118 Cal.App.4th at p. 1258, fn.7, 13 Cal.Rptr.3d 668 [contrasting applicationof severability analysis in Freidberg, Tabazand Paramount General, with Crowley which”question[ed]” the “propriety” of that analysis”for purposes of the favorable terminationrequirement of the law of maliciousprosecution”].)
C
StaffPro Failed to Demonstrate a Probability ofEstablishing Favorable
Termination of the Underlying Action
[10] Having determined that the court’s decision inCrowley requires a rejection of the severability analysisargued by the parties, we next apply the alternateanalysis laid out in Crowley to determine whetherStaffPro has, on this record, established a probability ofprevailing on the favorable termination element of itsmalicious prosecution action.
[11] In criticizing the Freidberg court’s severabilityanalysis, the Crowley court outlined a much simpleranalysis to be applied, stating that a plaintiff in amalicious prosecution must establish ” ‘a favorabletermination of the entire [underlying] action’ ” and thatthe other elements of the tort, such as probable cause,will only be reached after ” ‘judgment ha[s] beenreached in the plaintiff’s favor in the prior action as awhole.’ ” (Crowley, supra, 8 Cal.4th at p. 686, 34Cal.Rptr.2d 386, 881 P.2d 1083, quoting Jenkins v.Pope (1990) 217 Cal.App.3d 1292, 1300, 266 Cal.Rptr.557 (Jenkins ); [FN14] Casa Herrera, supra, 32Cal.4th at p. 341, 9 Cal.Rptr.3d 97, 83 P.3d 497 [“Todetermine ‘whether there was a favorable termination,’we ‘look at the judgment as a whole in the prior action'”].)
FN14. While the Crowley court drew thequoted language from Jenkins, supra, 217Cal.App.3d 1292, 266 Cal.Rptr. 557, a casethat is distinguishable from the instant case,the high court adopted this language in thespecific context we address here–theevaluation of the favorable terminationelement of a malicious prosecution tort wherean underlying lawsuit contained multiplecauses of action. The Crowley court alsostated that Freidberg’s conclusion thatfavorable termination was not established wassupported by the “sufficient ground” that thejudgment in the underlying action resulted ina $12,900 damages award to the defendant inthe malicious prosecution action. (Crowley,supra, 8 Cal.4th at p. 684, 34 Cal.Rptr.2d 386,881 P.2d 1083.)
We applied these principles in Dalany to preclude amalicious prosecution claim where the plaintiffsimilarly attempted to separate the causes of action inthe underlying action for purposes of establishingfavorable termination. In Dalany, the plaintiff hadobtained summary judgment on “some, but not all” ofthe causes of action alleged against him in anunderlying suit brought by his former employer, andeventually settled the remainder (in addition to his ownclaims against the employer) *694 in return for apayment of $105,000. (Dalany, supra, 42 Cal.App.4that pp. 825-826, 50 Cal.Rptr.2d 13.) Despite thesettlement, in a subsequent malicious prosecution,Dalany contended that he could establish favorabletermination by focusing solely on the causes of actionfor which he obtained summary judgment. Relying onCrowley, we disagreed, holding that “separateconsideration” of the claims asserted in the underlyinglawsuit was “not appropriate with respect to the elementof favorable termination.” (Dalany, at pp. 829-830, 50Cal.Rptr.2d 13, citing Crowley, supra, 8 Cal.4th at p.686, 34 Cal.Rptr.2d 386, 881 P.2d 1083.) Instead,because Crowley required us to “consider the priorjudgment ‘as a whole,’ ” and not as separablecomponents, we determined that Dalany’s settlement ofsome of the claims against him created “ambiguity” asto his innocence, thus precluding the requisite showingof a ” ‘favorable termination of the entire action.’ “(Dalany, at pp. 828-830 & fn. 2, 50 Cal.Rptr.2d 13,quoting Crowley, at p. 686, 34 Cal.Rptr.2d 386, 881P.2d 1083.)
**8 Similarly, here, Elite’s success in obtaining somerelief on its first cause of action precludes a showing offavorable termination. The trial court’s order in theunderlying action required StaffPro to take remedialaction with respect to many of the core allegationsagainst it, and the order further states that a number ofElite’s other requests for remedial action were renderedmoot by StaffPro’s voluntary compliance and/orregulatory developments. In light of this order, we mustconclude that the resolution of the underlying action,viewed as a whole, ” ‘leaves some doubt as to[StaffPro’s] innocence or liability’ ” and consequently “‘is not a favorable termination.’ ” (Eells, supra, 36Cal.App.4th at p. 1855, 43 Cal.Rptr.2d 323; Murdockv. Gerth (1944) 65 Cal.App.2d 170, 177-178, 150 P.2d489 [termination not favorable to defendant eventhough “only a small part of the amount sued for” wasrecovered and on a different theory than that advancedbecause “[t]he fact remains that the judgment, framedupon the pleadings filed and the issues raised thereby,was not in favor of the defendant therein”], criticized onother grounds in Sheldon Appel, supra, 47 Cal.3d at p.878, fn. 7, 254 Cal.Rptr. 336, 765 P.2d 498; cf. Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495,514, 8 Cal.Rptr.3d 584 [dismissal based on mootnessdoes “not constitute a favorable termination forpurposes of a malicious prosecution action”].) [FN15]
FN15. Our conclusion is supported byanalogous caselaw regarding the effect of asettlement on the favorable terminationelement of a subsequent malicious prosecutionaction. There is no question that had the resultreached in the underlying litigation here–arequirement that StaffPro modify its futurebehavior–been reached as part of a settlementbetween the parties, it would preclude asubsequent finding of favorable termination. (Ferreira, supra, 87 Cal.App.4th at pp.413-414, 104 Cal.Rptr.2d 683; Pender,supra, 23 Cal.App.4th at p. 1817, 29Cal.Rptr.2d 36.) In our view, the vehicle bywhich termination occurs should not changethe determination of whether that terminationwas “favorable.” (Brennan, supra, 25 Cal.4that p. 317, 105 Cal.Rptr.2d 790, 20 P.3d 1086[“it is the nature of the termination thatmatters, not exactly how it came about or whoagreed to it”]; cf. Crowley, supra, 8 Cal.4that pp. 684-685, 34 Cal.Rptr.2d 386, 881 P.2d1083 [it is ” ‘the decree or judgment itself inthe former action [that] is the criterion bywhich to determine who was the successfulparty in such proceeding’ “]; Dalany, supra,42 Cal.App.4th at pp. 828-829, 50 Cal.Rptr.2d13 [holding that “[t]he ambiguity which ariseswhen parties enter into a settlement is notresolved because instead of a dismissal theparties enter into a stipulated judgment”].)
In sum, we conclude that the judgment in theunderlying action was partially in Elite’s favor,precluding StaffPro from *695 demonstrating therequisite favorable termination of the entire action. Consequently, we affirm the trial court’s ruling on thesection 425.16 motion, striking StaffPro’s maliciousprosecution cause of action. StaffPro failed to establisha probability of prevailing on the claim.
DISPOSITION
FN16. StaffPro’s brief includes a one-sentencerequest that in addition to reversing the section425.16 order we also reverse the trial court’spostjudgment orders requiring StaffPro to paythe attorney fees and costs of its opponents. StaffPro makes no separate argument as tothose orders. (See People v. Williams (1997)16 Cal.4th 153, 215, 66 Cal.Rptr.2d 123, 940P.2d 710 [contentions ” ‘perfunctorily assertedwithout argument in support’ ” are notproperly before appellate court].) Presumably,its contention is that the attorney fees ordermust be reversed along with the judgment asto the merits of the section 425.16 order. Aswe affirm the judgment with respect to thesection 425.16 order, we consequently rejectStaffPro’s request to reverse the attorney feesand costs orders.
WE CONCUR: BENKE, Acting P.J., andHUFFMAN, J.
136 Cal.App.4th 1392, 39 Cal.Rptr.3d 682, 2006 WL437599 (Cal.App. 4 Dist.), 06 Cal. Daily Op. Serv.1610, 2006 Daily Journal D.A.R. 2239
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