Accordingly, when, as in this case, the facts known by the attorney are not in dispute, the probable cause issue is properly determined by the trial court under an objective standard; it does not include a determination whether the attorney subjectively believed that the prior claim was legally tenable. (See Prosser & Keeton on Torts, supra, s 119, pp. 876-877; Dobbs, Belief and Doubt in Malicious Prosecution and Libel, supra, 21 Ariz.L.Rev. 607, 609- 611.)
Lest there be any confusion, however, we strongly emphasize that our conclusion in this regard does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability for malicious prosecution. If the trial court concludes that the prior action was not objectively tenable, evidence that the defendant attorney did not subjectively believe that the action was tenable would clearly be relevant to the question of malice. Inasmuch as an attorney who does not have a good faith belief in the tenability of an action will normally assume that a court is likely to come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable.
Furthermore, the probable cause element, as so defined, imposes no improper or unjustified hardship on a malicious prosecution plaintiff. If a court finds that the initial lawsuit was in fact objectively tenable, the court has determined that the fundamental interest which the malicious prosecution tort is designed to protect -- "the interest in freedom from unjustifiable and unreasonable litigation" (1 Harper et al., The Law of Torts, supra, s 4.2, p. 407, emphasis added) -- has not been infringed by the initial action. Under such circumstances, it is not unfair to bar a plaintiff's suit for damages even if the plaintiff can show that its adversary's law firm did not realize how tenable the prior claim actually was, since the plaintiff could properly have been put to the very same burden of defending an identical claim if its adversary had simply consulted a different, more legally astute, attorney. This is a classic case of "no harm, no foul."
C. Irrelevance of Attorney Research to Probable Cause
As noted above, in addition to suggesting that a plaintiff may establish an absence of probable cause by demonstrating that the defendant attorney did not subjectively believe in the tenability of the prior claim, the Tool Research court further suggested that a plaintiff might prove a lack of probable cause by showing that the attorney had failed to conduct "a reasonable investigation and industrious search of legal authority ..." before instituting the prior action. (Tool Research, supra, 46 Cal.App.3d at p. 683, 120 Cal.Rptr. 291.) Although that statement was only dictum in Tool Research -- as no question had been raised as to the adequacy of the defendant's research -- at least two subsequent Court of Appeal decisions have relied on the Tool Research language to hold that a malicious prosecution plaintiff may establish a lack of probable cause simply by showing that its former adversary's attorney failed to perform reasonable legal research or factual investigation before filing a claim on his client's behalf. (See Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 188-190, 156 Cal.Rptr. 745; Williams v. Coombs, supra, 179 Cal.App.3d 626, 640-644, 224 Cal.Rptr. 865.) In the present case, the lower courts apparently relied on these precedents to conclude that because there was a dispute in the evidence as to the extent and adequacy of the legal research conducted by A & O prior to the filing of the earlier action, there was a crucial factual issue to be submitted to the jury on the probable cause element.
We conclude that the Tool Research decision, supra, 46 Cal.App.3d 675, 683, 120 Cal.Rptr. 291, significantly and improperly altered the probable cause element by suggesting that an attorney's reasonable investigation and industrious search of legal authority is an essential component of probable cause. This portion of the Tool Research dictum again shifts the focus of the probable cause inquiry from the objective tenability of the prior claim to the adequacy of the particular defendant's performance as an attorney. Furthermore, this component is not only fundamentally incompatible with the objective nature of the probable cause determination, but it is also at odds with a consistent line of California decisions which have made clear that an attorney's duty of care runs primarily to his own client rather than to the client's adversary, and which -- on the basis of important policy considerations -- have precluded the adversary from maintaining a negligence cause of action against its opponent's attorney. (See, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 344, 134 Cal.Rptr. 375, 556 P.2d 737; Norton v. Hines, supra, 49 Cal.App.3d 917, 923, 123 Cal.Rptr. 237.) Allowing inadequate research to serve as an independent basis for proving the absence of probable cause on the part of an attorney would tend to create a conflict of interest between the attorney and client, tempting a cautious attorney to create a record of diligence by performing extensive legal research, not for the benefit of his client, but simply to protect himself from his client's adversaries in the event the initial suit fails.
As we have explained above, if the trial court concludes that, on the basis of the facts known to the defendant, the filing of the prior action was objectively reasonable, the court has necessarily determined that the malicious prosecution plaintiff was not subjected to an unjustified lawsuit. When the court has made such a determination, there is no persuasive reason to allow the plaintiff to go forward with its tort action even if it can show that its adversary's attorney did not perform as thorough an investigation or as complete a legal research job as a reasonable attorney may have conducted. Permitting recovery on such a basis would provide the plaintiff with a windfall; since the prior action was objectively tenable, the plaintiff could properly have been put to the very same burden of defense if its adversary had simply hired more thorough counsel.
Of course, as with the question of the defendant's subjective belief in the tenability of the claim, if the trial court determines that the prior action was not objectively tenable, the extent of a defendant attorney's investigation and research may be relevant to the further question of
whether or not the attorney acted with malice. We conclude, however, that the adequacy of an attorney's research is not relevant to the probable cause determination. [FN9]
The trial court's confusion as to the proper role of the court and the jury in the probable cause determination also led to yet another error in this case. As noted above, the court, over objection, permitted attorneys to be called as expert witnesses to give their opinions as to whether a reasonable attorney would conclude that the claims advanced in the prior action were
tenable.
In light of our earlier discussion, explaining that the objective tenability of the prior action is a question of law to be determined by the court, it is clear that the trial court erred in admitting this evidence. "[I]t is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide." (Carter v. City of Los Angeles (1945) 67 Cal.App.2d 524, 528, 154 P.2d 907; accord L.A. Teachers Union v. L.A. City Bd. of Ed. (1969) 71 Cal.2d 551, 556, 78 Cal.Rptr. 723, 455 P.2d 827; Downer v. Bramet (1984) 152 Cal.App.3d 837, 842, 199 Cal.Rptr. 830.) We agree with the prior cases which have concluded that this general principle applies to the probable cause element of the malicious prosecution tort. (See, e.g., Williams v. Coombs, supra, 179 Cal.App.3d 626, 638, 224 Cal.Rptr. 865; Carrol v. Kalar (1976) 112 Ariz. 595, 599, 545 P.2d 411, 415.)
D. Expert Testimony and Probable Cause
As we have explained, the trial court in this case erred in submitting the probable cause issue to the jury, because this element of the malicious prosecution tort is always properly determined by the court. Although it is sometimes necessary to submit preliminary factual questions to the jury when there is a dispute as to facts which the defendant knew when he instituted the prior action, in this case there was no dispute as to facts of which A & O was aware when it brought the prior action on its client's behalf. It was uncontroverted that CKM informed A & O of the details of the earlier real estate transactions and Sheldon Appel's post-purchase bulk sale offer, and that A & O filed the declaratory relief complaint and recorded the lis pendens on the basis of those facts. Under these circumstances, it was the responsibility of the trial court to determine whether Sheldon Appel had established that A & O acted without probable cause in filing the lis pendens and the lien claim.
We need not remand the matter to the trial court, however, for we are as in good a position as that court to resolve the determinative legal question -- namely, whether there was probable cause to file the lis pendens and the supporting lien claim. In resolving that issue, however, we must first clarify by how stringent a standard probable cause should be tested.
A number of early cases, discussing the probable cause issue in relation to a claim of a malicious prosecution of a criminal charge, defined probable cause as "a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true." (See, e.g., Potter v. Seale, supra, 8 Cal. 217, 221.) In the context of an action alleging malicious prosecution of a prior civil suit, however, it has long been recognized that it is not "true charges" but rather legally tenable claims for relief that the law seeks to protect. (See, e.g., Murdock v. Gerth, supra, 65 Cal.App.2d 170, 178-179, 150 Cal.Rptr. 489. See generally Rest.2d Tort, s 675, coms. c, d, e, f and g.)
In addressing the somewhat related question as to the appropriate standard for determining the frivolousness of an appeal in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179, we concluded that an appeal could properly be found frivolous only if "any reasonable attorney would agree that the appeal is totally and completely without merit." (P. 650, 183 Cal.Rptr. 508, 646 P.2d 179.) In arriving at that standard, we reasoned that "any definition [of frivolousness] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights.... Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win...." (Ibid.)
In Williams v. Coombs, supra, 179 Cal.App.3d 626, 638-639, 224 Cal.Rptr. 865, the Court of Appeal suggested that the Flaherty standard was insufficiently stringent as a test for probable cause in the malicious prosecution context, and instead proposed that probable cause be measured "by whether a prudent attorney, after such investigation of the facts and research of the law as the circumstances reasonably warrant, would have considered the action to be tenable on the theory advanced." (179 Cal.App.3d at p. 639, 224 Cal.Rptr. 865.)
Although it is not clear to us that the Williams "prudent attorney" test would, in practice, necessarily lead to results different from the Flaherty "reasonable attorney" standard, to the extent the two formulations do differ we believe that the less stringent Flaherty standard more appropriately reflects the important public policy of avoiding the chilling of novel or debatable legal claims. That policy is no less applicable to the institution of actions at the trial stage than to the pursuit of appeals, and, contrary to the Williams court's suggestion (see 179 Cal.App.3d at p. 638, 224 Cal.Rptr. 865), we do not believe there is any reason to afford litigants and their attorneys less protection from subsequent tort liability than it is to shield them from court-imposed sanctions within the initial action. (See, ante, pp. 340-341 of 254 Cal.Rptr., pp. 502-503 of 765 P.2d; see also Central Florida Mach. Co., Inc. v. Williams (Fla.Ct.App.1983) 424 So.2d 201, 203-204.) In contrast to the "prudent attorney" language of Williams, the Flaherty standard -- modified to fit this context, i.e., whether any reasonable attorney would have thought the claim tenable -- may make it clearer that in evaluating whether or not there was probable cause for malicious prosecution purposes, a court must properly take into account the evolutionary potential of legal principles. (See, e.g., Rest.2d Torts, s 675, com. f.)
Applying the appropriate probable cause standard to the facts of this case, we conclude that the dissenting justice in the Court of Appeal was correct in finding that the lien claim pursued by A & O, although not ultimately successful, was legally tenable and thus that there was probable cause to support both the lien claim and the lis pendens. [FN10] At the time the lien claim was filed, there was at least one prior California decision which had suggested that a vendor's lien, under Civil Code section 3046, might well be available to protect the interests of a seller of real property under facts somewhat comparable to the circumstances in this case (see Edwards-Town, Inc. v. Dimin (1970) 9 Cal.App.3d 87, 92-94, 87 Cal.Rptr. 726), and, in addition, there were a variety of decisions which had recognized the right of a court to impose an equitable lien on property -- even in the absence of an express contractual security provision -- to effectuate the intent of the parties or to prevent unjust enrichment. (See generally 3 Witkin, Summary of Cal.Law (9th ed. 1987) Security Transactions in Real Property, s 17, p. 530 and cases cited.) Although the trial court in the prior action evidently concluded that the past decisions should not be applied or extended to afford CKM a lien on the property in this case and accordingly expunged the lis pendens, in light of both the existing authorities and the leeway a litigant must be given to argue for an evolution of legal precedents, we conclude that the lien claim interposed by A & O was legally tenable. Accordingly, we conclude that the prior action was not instituted without probable cause.
The judgment of the Court of Appeal is reversed, and the case is remanded with directions to order the entry of judgment in favor of A & O on the malicious prosecution claim.
LUCAS, C.J., and MOSK, BROUSSARD, PANELLI, EAGLESON and KAUFMAN, JJ., concur.