1

Filed 2/9/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

WATER FOR CITIZENS OF WEED CALIFORNIA 

et al.,

Plaintiffs and Appellants,

v.

CHURCHWELL WHITE LLP et al.,

Defendants and Respondents.

C093421

(Super. Ct. No. 34-2020-

00283365-CU-PO-GDS)

APPEAL from a judgment of the Superior Court of Sacramento County, David I. 

Brown, Judge. Affirmed.

Civil Liberties Defense Center, Lauren C. Regan (Pro hacs vice); Law Office of 

Donald B. Mooney, Donald B. Mooney for Plaintiffs and Appellants.

Law Offices of Babak Naficy, Babak Naficy for We Advocate Through 

Environmental Review as Amicus Curiae in support of Plaintiffs and Appellants.

Hansen, Kohls, Sommer & Jacob, Christine E. Jacob for Defendants and 

Respondents.
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This is an appeal from the grant of a special motion to strike a complaint for 

malicious prosecution. In the underlying action, defendants Churchwell White LLP, a 

law firm, and two of its attorneys, Barbara A. Brenner and Robin R. Baral (collectively 

Churchwell) represented a corporation in an action to quiet title to water rights. In the

underlying quiet title action, Churchwell sued the City of Weed (City) and the plaintiffs 

here, Water for Citizens of Weed California, its members, and other citizens of the City 

(collectively Citizens).1 The trial court in that action granted Citizens’s special motion to 

strike the complaint, commonly called an anti-SLAPP motion (strategic lawsuit against 

public participation).

Citizens then filed this action against Churchwell, alleging malicious prosecution 

for naming them in the quiet title action. The trial court granted Churchwell’s antiSLAPP motion, concluding Citizens did not establish a probability of prevailing on their 

claim. They did not show that Churchwell lacked probable cause or acted out of malice 

in naming them in the quiet title action.

We affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

The underlying action

In 2017, Churchwell represented Roseburg Forest Products Co. (Roseburg) in an 

action to quiet title in water rights. Roseburg alleged it owned appropriative rights to 

4.07 cubic feet per second (cfs) of water from Beaughan Creek and Beaughan Spring

(collectively Beaughan Springs) in Siskiyou County. 

1 The individual plaintiffs are Jim Taylor, Michael Yates, Bob Hall, Monica Zinda, 

David Pearce, Mary Jackson, Ray Strack, and Bruce Shoemaker. The City is not a party 

to the present action.
3

The quiet title action arose from the following, as the present complaint alleges in 

part: In 1966, Roseburg’s predecessor, International Paper, entered into an agreement 

that guaranteed the City rights to 2.0 cfs of Beaughan Springs water for 50 years at a cost 

of one dollar per year. In 2016, Roseburg and the City entered into a 10-year lease under 

which Roseburg would provide the City 1.5 cfs of Beaughan Springs water for $97,500 a 

year, an amount that would increase over the lease’s term. The lease required the City to 

identify an alternate source of water within two years and to cease completely its use of 

Beaughan Springs water after 10 years. 

Citizens allege that after the City approved the lease, they discovered documents 

which purported to establish that Roseburg “had no right to appropriate the City’s water 

source for its own private gain.” Citizens raised their concerns with the community. 

They circulated a flyer seeking attendance at a public meeting concerning the lease. The 

flyer read, “California owns the surface water not Roseburg Forest Products. The courts 

award (adjudicate) water for specific purposes. [¶] California Water Rights and Public 

Trust Doctrine holds that certain resources are above private ownership and reside in 

Trust of Government for the benefit of the people. It is the duty of the government to 

administer these resources to highest public interest. This means you and your officials. 

[¶] . . . [¶] Is Roseburg Forest Products taking the position they are the court??” 

Citizens circulated more flyers in the community. The flyers disputed Roseburg’s 

claim of owning exclusive rights to the City’s historic allocation of 2.0 cfs. They stated 

that a judicial decree in 1932 indicated the water was intended for the City, and that in all 

subsequent adjudications, there had been “specific dedicated measures allotted for 

domestic and municipal, irrigation and industrial uses.” When International Paper 

subdivided land and sold houses to the public, the homes “came with a guarantee of water 

for domestic and municipal use.” In 1966, International Paper sold the water and sewer 

infrastructure to the City as part of entering into the 50-year lease, and later, in 1982, it 

closed its mill and “gave rights to domestic and municipal water to the City of Weed.” 
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The flyers asserted that Roseburg’s claim of ownership had “never been ruled on by a 

court of law,” and they stated Citizens and others were prepared to secure the rights “to 

our water” “through legal action if necessary, to ensure enforcement of the 1932 decree.” 

The flyers solicited financial support. 

By letter dated March 29, 2017, Citizens asked the watermaster, the Scott Valley 

and Shasta Valley Watermaster District, to determine that the City had a right to 2.0 cfs 

of Beaughan Springs water. In the letter, they summarized the alleged chain of title, 

stating the 1932 decree indicated an adjudication of 2.0 cfs for the City in the name of a 

predecessor and specifically for domestic and municipal uses. Citizens had found a letter 

from 1982 in which International Paper transferred its right to the 2.0 cfs of water to the 

City, and the watermaster, then the state Department of Water Resources, agreed in 

writing that the 2.0 cfs belonged to the City. However, the Department of Water 

Resources in 1996 changed ownership from the City to Roseburg when the 1982 letter 

could not be found. Citizens asked the watermaster to reconsider this decision and find 

the City to be the rightful owner of the 2.0 cfs of water. They stated, “The City of Weed 

has always been, and should continue to be, the rightful claimant to the 2.0 cfs of 

Beaughan Springs.” Citizens stated their request was “an attempt to resolve this matter 

without having to initiate an expensive and time-consuming court case.” 

Citizens asked the City to join their request to the watermaster at a city council 

meeting on May 11, 2017. The City agreed. At the meeting, the City adopted a 

resolution requesting the State Water Resources Control Board to correct its records to 

recognize the City’s ownership of 2.0 cfs of Beaughan Springs water. 

Roseburg sued Citizens and the City the next day. The verified first amended 

complaint alleged that Roseburg was compelled to bring the action because of “the 

actions of [Citizens] and the City to join [Citizens’s] efforts to attempt to ‘transfer’ or 

take a portion” of Roseburg’s water rights. Roseburg pleaded causes of action for quiet 

title and adverse possession of 4.07 cfs of Beaughan Springs water. It also sought 
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declaratory relief, alleging that a judicial determination of rights was necessary because 

the uncertainty over its right to exclusive use of the 4.07 cfs of water “has resulted in a 

cloud in title preventing Roseburg from the ability to sell or encumber” its right. 

Citizens filed an anti-SLAPP motion to strike the complaint. (Code Civ. Proc., 

§ 425.16.) (Statutory section citations that follow are found in the Code of Civil 

Procedure unless otherwise stated.) Each of the individual plaintiffs submitted a sworn 

declaration that he or she did not claim and had never claimed any right, title, estate, lien, 

or interest in the 2.0 cfs of Beaughan Springs water at issue in the case. 

The trial court granted the anti-SLAPP motion. It found that Citizens were named 

in the action solely because they exercised their constitutional rights. None of them 

claimed any private interest in the water. The court refused to address the second step of 

deciding an anti-SLAPP motion, which asked whether Roseburg could establish a prima 

facie case of success on the merits. 

Roseburg appealed the trial court’s ruling and the court’s subsequent award of fees 

and costs. This court dismissed the appeals after the parties reached a settlement. As part 

of their settlement, Roseburg and the City stipulated to judgement that Roseburg owns 

the exclusive right to divert and use 4.07 cfs of Beaughan Springs’ water, the City has no 

ownership interest in that water, and the City has a leasehold interest in 1.5 cfs of those 

rights. The trial court entered judgment accordingly. 

In the settlement agreement between Roseburg and Citizens, the parties agreed to 

stipulate to dismiss both appeals, Roseburg agreed to pay Citizens’s attorney fees in 

addition to those awarded by the trial court, and the parties agreed to dismiss all claims 

except any against Churchwell. 

This action

Citizens filed the present action, a “SLAPPback” action, against Churchwell for 

malicious prosecution for suing them on behalf of Roseburg in the quiet title action. 
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Citizens alleged Churchwell had no probable cause to name them in the underlying 

action, and that Churchwell named them only to silence and chill their exercise of First 

Amendment rights. 

Churchwell filed an anti-SLAPP motion against the complaint. The trial court 

granted the motion. It found that although the complaint arose from Churchwell’s 

exercise of its constitutional rights, Citizens did not demonstrate a probability of 

prevailing on the merits. They did not establish a prima facie case of malicious 

prosecution: that Churchwell lacked probable cause to name them in the underlying 

action and that Churchwell acted out of malice. 

Citizens challenge those findings in this appeal.

We note that “We Advocate Thorough Environmental Review,” a non-profit 

corporation, has filed an amicus curiae brief in support of Citizens.

DISCUSSION

I

Standard of Review

We review the trial court’s grant of Churchwell’s anti-SLAPP motion de novo. 

(Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) 

Our review involves a two-step analysis. We first determine whether Churchwell, the 

moving party, established that the claim of malicious prosecution arose from its 

attorneys’s actions in furtherance of their “right of petition or free speech under the 

United States Constitution or the California Constitution in connection with a public 

issue[.]” (§ 425.16, subd. (b)(1).)

If Churchwell has satisfied that burden, then Citizens bear the burden of 

establishing a probability of prevailing on their claim. (§ 425.16, subd. (b)(1).) Citizens 

must show that their malicious prosecution claim based on Churchwell’s protected 

activity “is legally sufficient and factually substantiated. The court, without resolving 
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evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the 

trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is 

stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

In making our determination, we consider “the pleadings, and supporting and 

opposing affidavits stating the facts upon which the liability or defense is based.” 

(§ 425.16, subd. (b)(2).) We accept Citizens’s evidentiary submissions as true “and 

consider only whether any contrary evidence from the defendant establishes its 

entitlement to prevail as a matter of law.” (Park v. Board of Trustees of California State 

University, supra, 2 Cal.5th at p. 1067.)

II

Probability of Prevailing on the Merits

Citizens do not challenge the trial court’s determination on the first step of 

analysis, that their claim for malicious prosecution arose from Churchwell’s exercise of 

constitutional rights. We thus turn to the second step and determine whether Citizens 

have established a probability of prevailing on their claim.

To prevail on their malicious prosecution claim, Citizens must show that the quiet 

title action (1) was commenced by or at the direction of Churchwell and was pursued to a 

legal termination favorable to Citizens; (2) was initiated or maintained without probable 

cause; and (3) was initiated or maintained with malice. (Parrish v. Latham & Watkins

(2017) 3 Cal.5th 767, 775 (Parrish).) No one disputes the first element, so we address

the other two.

A. Probable cause

Citizens contend that Churchwell had no probable cause to name them in the quiet 

title action. None of the individual plaintiffs had any claim or interest in the water. 

Churchwell based each cause of action on the theory that Citizen’s actions had created a 

cloud on Roseburg’s title, but Citizens argue this theory is untenable because their actions 
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do not constitute a cloud on title or an adverse claim to the water rights. Citizens assert

that the only reason Churchwell sued them was to silence them. 

1. Legal background

The existence of probable cause is a question of law. (Parrish, supra, 3 Cal.5th at 

p. 776.) The element requires the trial court to determine objectively the reasonableness 

of the attorney’s conduct; in other words, “ ‘to determine whether, on the basis of the 

facts known to the defendant, the institution of the prior action was legally tenable,’ as 

opposed to whether the litigant subjectively believed the claim was tenable. ([Sheldon 

Appel Co. v. Albert & Oliker (1989) 47 Cal.3d. 863,] 878.) A claim is unsupported by 

probable cause only if ‘ “ ‘any reasonable attorney would agree [that it is] totally and 

completely without merit.’ ” ’ (Wilson [v. Parker, Covert & Chidester (2002)] 28 Cal.4th 

[811,] 817; accord, Sheldon Appel, at p. 885; In re Marriage of Flaherty (1982) 31 Cal.3d 

637, 650; see also Zamos [v. Stroud (2004)] 32 Cal.4th [958,] 970.) ‘This rather lenient 

standard for bringing a civil action reflects “the important public policy of avoiding the 

chilling of novel or debatable legal claims.” ’ (Wilson, supra, at p. 817.) The standard 

safeguards the right of both attorneys and their clients ‘ “ ‘to present issues that are 

arguably correct, even if it is extremely unlikely that they will win.’ ” ’ (Ibid., quoting 

Flaherty, supra, at p. 650.)” (Parrish, at p. 776.) A plaintiff’s successful defense against

the underlying lawsuit does not establish the suit was brought without probable cause. 

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743.) 

“ ‘A litigant will lack probable cause for his action either if he relies upon facts 

which he has no reasonable cause to believe to be true, or if he seeks recovery upon a 

legal theory which is untenable under the facts known to him.’ (Sangster v. Paetkau

(1998) 68 Cal.App.4th 151, 164-165.) ‘In a situation of complete absence of supporting 

evidence, it cannot be adjudged reasonable to prosecute a claim.’ (Mabie v. Hyatt (1998) 

61 Cal.App.4th 581, 597.) Probable cause, moreover, must exist for every cause of 
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action advanced in the underlying action. ‘[A]n action for malicious prosecution lies 

when but one of alternate theories of recovery is maliciously asserted . . . .’ (Bertero v. 

National General Corp. (1974) 13 Cal.3d 43, 57, fn. 5; see Crowley v. Katleman (1994) 

8 Cal.4th 666, 679, 695.)” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 

260, 292.) Where, as here, the state of Churchwell’s factual knowledge is undisputed, a 

jury need not engage in factfinding, and the court decides whether such facts constitute 

probable cause. (Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 981.)

The purpose of a quiet title action is to establish title against any adverse claims to 

property or any interest therein. (§ 760.020, subd. (a).) Unlike an action for cancelling 

an instrument, which is aimed at a particular instrument that is a cloud on the property 

owner’s title, an action to quiet title “is for the purpose of stopping the mouth of a person 

who has asserted or is asserting a claim to the plaintiff’s property. It is not aimed at a 

particular piece of evidence, but at the pretensions of an individual.” (Castro v. Barry

(1889) 79 Cal. 443, 446 (Castro).) The ultimate fact to be found is the ownership of the 

property. (Rahlves & Rahlves, Inc. v. Ambort (1953) 118 Cal.App.2d 465, 476.)

For purposes of quiet title actions, a claim “includes a legal or equitable right, title, 

estate, lien, or interest in property or cloud upon title.” (§ 760.010, subd. (a).) The term 

“claim” “is intended in the broadest possible sense.” (Cal. Law Revision Com. com., 

West’s Ann. Code Civ. Proc., foll. § 760.010.) The adverse claim is not required to “be 

of any particular character.” (Castro, supra, 79 Cal. at p. 446.) A quiet title action is 

“ ‘not confine[d] . . . to the case of an adverse claimant setting up a legal title or even an 

equitable one; but the [statute] intended to embrace every description of claim whereby 

the plaintiff might be deprived of the property, or its title clouded, or its value 

depreciated, or whereby the plaintiff might be incommoded or damnified by the assertion 

of an outstanding title already held or to grow out of the adverse pretension.’ ” (Id. at 

p. 447, quoting Head v. Fordyce (1860) 17 Cal. 149, 151.) 
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The rule may be stated more broadly: A property owner may bring a quiet title 

action “to determine any adverse claim whatever. For if the defendant by his answer 

disclaims all interest whatever, judgment may, nevertheless, be entered against him, 

though in such case it must be without costs.” (Castro, supra, 79 Cal. at p. 447.)

Hence, “it matters not whether a claim is based upon a valid title or interest in real 

estate or upon a mere pretension or asserted right therein or thereto, or issues out of, or 

concerns, or is annexed to or exercisable in connection with such property; it may still be 

the subject of an action to quiet title . . . .” (Hamilton v. Elvidge (1933) 132 Cal.App. 21, 

27.) The action may be brought whether the adverse claim “be founded on evidence or 

utterly baseless.” (Kroeker v. Hurlbert (1940) 38 Cal.App.2d 261, 266.) The action even 

lies against any adverse interest that might by regarded by third persons as a cloud on 

title. (Bulwer Consolidated Mining Co. v. Standard Consolidated Mining Co. (1890) 

83 Cal. 589, 609 (Bulwer).)

2. Analysis

Citizens contend that no reasonable attorney would believe that their statements 

and actions constituted a cloud on title or an adverse claim on Roseburg’s interest. 

Churchwell claimed that Citizens publicly asserted “the water (1) belonged to the people, 

to the citizens themselves of the City of Weed; (2) had long since been declared a public 

resource; and on this basis, (3) the individual plaintiff parties requested control of the 

water be returned to the citizens.” Citizens argue that these facts cannot constitute a 

cloud on title. None of the individual plaintiffs ever asserted a personal interest in the 

water or suggested that anyone other than the City and the public were entitled to the 

water. 

Moreover, a cloud on title traditionally concerns the existence of an instrument 

which purports to grant an interest in property in conflict with another person’s interest. 

(See Pixley v. Huggins (1860) 15 Cal. 127, 134.) Citizens state they did not present or 
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rely upon any instrument to contest Roseburg’s water rights or establish an adverse claim. 

As for the 1982 letter, Citizens say they merely brought the document to the attention of 

local government. Their speech and actions did not rise to the status of any legal 

declaration or order, which could be made only by the City. Under California law, quiet 

title will not lie “to dispel mere verbal assertions of ownership as clouds on title[.]”

(Devine v. City of Los Angeles (1906) 202 U.S. 313, 334.) 

Citizens argue that Churchwell’s theory means any person who makes a statement 

regarding the disposition of property clouds that property’s title, even if the person has no 

personal interest in the property. In other words, public advocacy and activism regarding 

the disposition of ostensibly public resources like water is the equivalent of asserting title 

via written deed and thus puts one at risk of being sued. Citizens claim there is no case 

law that political activists can be deemed to have clouded title simply by engaging in 

political speech. This lack of caselaw, Citizens assert, shows that no reasonable attorney 

would believe he or she had probable cause to name Citizens in the quiet title action. 

We disagree with Citizens. Under the facts and circumstances, we cannot hold 

that any reasonable attorney would conclude Roseburg’s quiet title action was totally and 

completely without merit. Rather, a reasonable attorney could conclude that Churchwell 

had probable cause to name Citizens in the quiet title action. That attorney could 

determine that Citizens’s conduct went beyond mere protected speech and created an 

adverse claim against Roseburg’s title. Citizens’s publications claimed that Roseburg did 

not own rights to the water, that California owned the water in trust for the public or the 

City owned the rights, and the water had long been declared a public resource. More 

significantly, Citizens formally requested the watermaster to determine that the City 

owned the 2.0 cfs of water, and requested the City to join that request, which it did. They 

threatened legal action to protect what they claimed was the public’s or City’s right to the 

water, including action if the watermaster did not determine that the City owned the 
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water. Taken together, these actions constitute more than mere verbal assertions of 

ownership.

A quiet title action lies to address “every description of [a] claim” and “any 

adverse claim whatever” that might reduce the value of the owner’s property or whereby 

the owner is inconvenienced or damaged by an assertion of a title which could grow out 

of the adverse pretention. (Castro, supra, 79 Cal. at p. 447.) A reasonable attorney could 

believe that Citizen’s actions, particularly their pursuit of relief from the watermaster,

created an adverse claim to Roseburg’s title by depreciating its value and reducing its 

marketability.

Citizens’s declarations disclaiming any personal interest in the water rights did not 

negate cause for naming them in the action. In Bulwer, supra, 83 Cal. 589, a case 

Churchwell found in its research, the California Supreme Court ruled that an owner could 

state an action for quiet title even when the defendant did not assert an individual claim 

against the property. The cause of action enables the owner “to dispel whatever may be 

regarded by third persons, as well as by the defendant, as a cloud upon his title; for even 

though the defendant makes no adverse claim, third persons may regard plaintiff’s title as 

being subject to an adverse claim by the defendant, which would be a cloud upon 

plaintiff’s title, depreciating its value, and which he would be entitled to have removed by 

the decree of the court; so that his record title may appear perfect, not only to the 

defendant, but to all persons whom it may thereafter concern. The only purpose of the 

averment of an adverse claim is to notify the defendant of the nature of the action, and 

that he is required to set forth and litigate any adverse title he may claim to have, or to 

disclaim any such adverse title, either expressly or by default.” (Id. at p. 609.) 

Citizens do not dispute this rule of law. Rather, they contend there is no evidence 

in the record of a third person regarding Roseburg’s title as subject to an adverse claim by 

them. For our purposes, however, we must determine whether any reasonable attorney 

would agree it was totally and completely without merit for Churchwell to conclude that 
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a third party would regard Roseburg’s title as subject to an adverse claim, as that term is 

broadly defined, on account of Citizens’s actions.

We conclude a reasonable attorney would not believe that Churchwell’s belief in 

probable cause was without merit. The attorney could believe, as Churchwell did , that 

Citizens’s conduct raised adverse interests to Roseburg’s rights, as the law broadly 

defines those interests, and that a third person aware of Citizens’s actions may believe 

those actions depreciated the water rights’ value or their marketability. A third person 

might think twice about acquiring the water rights from Roseburg knowing Citizens had 

formally requested a public agency to determine that the rights do not exist.

Citizens’s threats of legal action also were not without impact. Members of the 

public, even though they do not have an individual interest in lands held in trust for the 

public, have long had standing to bring an action on behalf of the public to enforce a 

public land trust or easement or to defend a quiet title action on behalf of the public by 

asserting a public right to use private property. (Marks v. Whitney (1971) 6 Cal.3d 251, 

261-262, and cases cited therein.) Citizens’s threats of legal action should the 

watermaster disagree with them theoretically could also affect a third person’s 

understanding of the value and marketability of the water rights. A reasonable attorney 

could conclude from Citizens’s actions that a claim of probable cause to bring a quiet title 

action against Citizens was not totally and completely without merit.

Citizens’s argument that their actions cannot be determined to be a “cloud on 

title,” as Churchwell had asserted, does not prove that their actions cannot be an adverse 

claim on Roseburg’s title. A void or voidable instrument that might cause harm to a 

party if left outstanding or in the chain of title can be removed by the remedy of 

cancellation, often referred to as removing a cloud on title. (Civ. Code, §§ 3412-3414; 

see Pixley v. Huggins, supra, 15 Cal. at p. 132.) An action to quiet title, however, may 

address adverse claims in addition to those traditionally referred to as clouds on title. As 

stated earlier, a quiet title action, unlike in a cancellation action, “is for the purpose of 
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stopping the mouth of a person who has asserted or is asserting a claim to the plaintiff’s 

property . . . . It is not aimed at a particular piece of evidence, but at the pretensions of an 

individual.” (Castro, supra, 79 Cal. at p. 446.) Churchwell’s possible misuse of 

nomenclature did not render its conclusion that probable cause existed to bring a quiet 

title action totally and completely meritless.

Citizens and amicus curiae contend that Churchwell’s theory of probable cause 

will chill protected speech. They assert the theory puts citizens at risk of being sued 

merely because they publicly express their opinions and arguments regarding the 

disposition of ostensibly public resources, like water. Amicus argues that environmental 

advocates will often assert that the public has an interest in water where appropriations 

are disputed, such as in cases involving waters and lands subject to the public trust 

doctrine, and that if asserting the public has a right to water resources creates an 

actionable cloud on title and subjects citizens personally to a quiet title action, the public 

trust doctrine will fade into history. 

This action does not endanger the public trust doctrine, as there is no evidence any 

of the water owned by Roseburg was owned in trust for the public. Moreover, mere 

verbal assertions of ownership do not create a cloud on title. (Devine v. City of Los 

Angeles, supra, 202 U.S. at p. 334.) A reasonable attorney, however, could conclude that 

Citizens did more than engage in protected speech and petitioning regarding the 

disposition of a public resource. They formally requested a public agency to determine 

that Roseburg did not own rights to the water. And they threatened legal action if the 

agency determined otherwise. We cannot say that any reasonable attorney, 

understanding the actions Citizens took against Roseburg’s title purportedly on behalf of 

the public, would conclude that a claim of probable cause to bring a quiet title action 

against Citizens was completely and totally without merit.

In their reply brief, Citizens allege for the first time that Churchwell is bound 

under res judicata to findings the trial court made in granting Citizens’s anti-SLAPP 
15

motion in the quiet title action. The claim is forfeited. We do not address issues raised 

for the first time in a reply brief because doing so would deprive Churchwell the 

opportunity to argue against the new issue. (See Meridian Financial Services, Inc. v. 

Phan (2021) 67 Cal.App.5th 657, 707.)

B. Malice

We need not address the element of malice. Because we have determined there 

was probable cause to bring the quiet title action, “the malicious prosecution action fails, 

whether or not there is evidence that the prior suit was maliciously motivated.” (Sheldon 

Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875.)

DISPOSITION

The order striking the complaint is affirmed. Costs on appeal are awarded to 

Churchwell. (Cal. Rules of Court, rule 8.278(a).) 

 

HULL, Acting P. J.

We concur:

 

RENNER, J.

 

EARL, J.