FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF C. DELORES TUCKER, by 

and through William Tucker as

PERSONAL REPRESENTATIVE; and

WILLIAM TUCKER individually,

Plaintiffs-Appellants, No. 05-56045

v.  D.C. No.

INTERSCOPE RECORDS, INC.; DEATH CV-99-03679-RMT

ROW RECORDS, INC.; CHARLES B.

ORTNER; PAUL, HASTINGS, JANOFSKY

& WALKER, LLP,

Defendants-Appellees. 

ESTATE OF C. DELORES TUCKER, by 

and through William Tucker as

PERSONAL REPRESENTATIVE; and No. 06-55376 WILLIAM TUCKER individually,

Plaintiffs-Appellants, D.C. No.  CV-99-06129-RMT

v.

OPINION DAVID KENNER; GEOFFREY THOMAS;

JACK PALADINO; PAUL PALADINO,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Robert M. Takasugi, District Judge, Presiding

Argued and Submitted

May 11, 2007—Pasadena, California

Filed February 8, 2008

1787
Before: John T. Noonan, Richard A. Paez, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Paez;

Partial Concurrence and Partial Dissent by Judge Noonan

1788 ESTATE OF TUCKER v. INTERSCOPE RECORDS
COUNSEL

Richard C. Angino, Harrisburg, Pennsylvania, for the appellants. 

Steven A. Marenberg, Perry M. Goldberg, & Jason Linder,

Los Angeles, California, for appellees David Kenner, Geoffrey Thomas, Interscope Records, Inc., Interscope Records,

Charles B. Ortner, and Paul, Hastings, Janofsky & Walker

LLP. Ronald L. Leibow, Los Angeles, California, for appellee

Death Row Records, Inc. 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1791
OPINION

PAEZ, Circuit Judge: 

In these consolidated malicious prosecution cases,1 William

Tucker and the Estate of Cynthia Dolores Tucker (“the Tuckers”),2

 appeal the district court’s grant of summary judgment

to all defendants in both cases. In Tucker v. Interscope, we

affirm the district court’s ruling as to all defendants. In Tucker

v. Kenner, we affirm the district court’s summary judgment as

to defendant Thomas; however, as to defendant Kenner we

affirm the district court’s ruling in part and reverse in part,

and remand for trial. We also affirm the district court’s grant

of summary judgment as to Mr. Tucker’s loss of consortium

claim in both cases. 

I.

Overview

In the early 1990s, Cynthia DeLores Tucker, whose history

as an activist dates back to the civil rights movement of the

1950s and 1960s, became concerned with the increasing popularity of the style of hip-hop music known as “gangsta rap,”

particularly its appeal to African-American youth. She

enlisted the support of notable entertainers including Dionne

Warwick and Melba Moore to engage in lobbying and media

outreach, with the goal of limiting the sale of gangsta rap to

young people. Her efforts brought her head-to-head with two

of the genre’s most successful production and distribution

1After oral argument, we sua sponte consolidated the two cases on

appeal. 

2Mrs. Tucker is now deceased. In an order dated January 27, 2006, the

district court granted Mr. Tucker’s motion to substitute himself, as Personal Representative of the Estate of plaintiff Cynthia Delores Tucker, as

party plaintiff. On January 6, 2006, this court also substituted Mr. Tucker,

in his capacity as Personal Representative of the estate, as an appellant

pursuant to Fed. R. App. P. 43(a). 

1792 ESTATE OF TUCKER v. INTERSCOPE RECORDS
labels: Death Row Records, Inc. and Interscope Records, Inc.

After Tucker and other members of her coalition approached

Suge Knight, then-CEO of Death Row, about entering into a

distribution contract with the media behemoth Time Warner,

Inc., Death Row and its distributor Interscope filed separate

federal court actions (the “underlying litigation”) against

Tucker, alleging intentional interference with their exclusive

contractual relationship and other related claims. 

After Death Row and Interscope successfully moved for

dismissal without prejudice, the Tuckers filed separate lawsuits against the two entities and their lawyers in federal district court, invoking diversity jurisdiction and charging them

with malicious prosecution. Her husband William Tucker

sought damages for loss of consortium as a derivative claim.

Applying California law, the district court granted summary

judgment in both cases based on its conclusion that the Tuckers’ evidence did not create a genuine issue of fact as to

whether any of the defendants had acted with malice, a necessary element of a malicious prosecution claim. The district

court also dismissed Mr. Tucker’s loss of consortium claim on

the grounds that Mr. Tucker failed to carry his burden of production and that without a viable claim for malicious prosecution, his derivative claim failed as a matter of law. 

Reviewing de novo the grants of summary judgment in

both cases, we conclude that, on the evidentiary record before

the district court, it correctly concluded—except with regard

to the claim for abuse of process included in the complaint

filed by Death Row’s attorney David Kenner—that the Tuckers did not present sufficient evidence to defeat the motions

for summary judgment on the issue of malice. We therefore

affirm the summary judgment in Tucker v. Interscope, and

affirm in part and reverse in part the district court’s grant of

summary judgment in Tucker v. Kenner. We remand for trial

the Tuckers’ malicious prosecution claim against Kenner to

the extent that it is predicated on the abuse of process claim

that he included in Death Row v. Tucker. As we explain

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1793
below, as to that one claim the Tuckers have raised a genuine

triable issue of fact. 

II.

Factual and Procedural Background

To fully understand these consolidated appeals, it is necessary to set forth the history of the two cases in some detail.

Because the district court did not provide an extensive recitation of undisputed facts, we rely primarily on the parties’

briefs and the record for the following factual overview, noting factual disputes where they exist and construing any

ambiguities in favor of the Tuckers, as the non-moving parties. 

A. The Underlying Dispute 

Mrs. Tucker was a prominent civil rights advocate who

served as the first African-American Secretary of State of

Pennsylvania, the first African-American chair of the National

Federation of Democratic Women, and the Chair of the Democratic National Committee Black Caucus. She also cofounded and chaired the National Political Congress of Black

Women, Inc. (“NPC”), a non-profit organization dedicated to

promoting African-American women’s education and political, economic, and cultural development. 

During the early 1990s, Mrs. Tucker became troubled by

the growing popularity of “gangsta rap.”

3

 Of particular concern to Mrs. Tucker was the genre’s influence on AfricanAmerican youth, who she feared would adopt the music’s violent and sometimes misogynist perspectives. At the NPC’s

3The Oxford English Dictionary (online ed. 2007) defines gangsta rap

as “a style of rap music, originating in south-central Los Angeles, featuring aggressive, often misogynistic lyrics, typically centering on the violence of gang culture.” 

1794 ESTATE OF TUCKER v. INTERSCOPE RECORDS
biennial meeting in 1993, Mrs. Tucker enlisted the help of

well-known artists Dionne Warwick, Melba Moore, and Terri

Rossi, along with lobbyist Voncier Alexander, to form an

Entertainment Commission for the NPC that would support

African-American entertainers, and particularly women. The

Entertainment Commission adopted a three-part mission: to

eliminate barriers facing African-American artists and executives; to mobilize African-American entertainers to address

important issues affecting African-American communities;

and to “reshap[e] and maintain[ ] positive images to preserve

the dignity and heritage of our youth.” From 1993 to 1995,

the Entertainment Commission worked with prominent individuals in entertainment and media, along with religious leaders and lobbyists, to put pressure on music producers and

distributors to halt the sale of gangsta rap to minors. Among

Mrs. Tucker’s more high-profile efforts in pursuit of this goal

were an appearance at a 1995 Time Warner shareholder’s

meeting, where she offered Time Warner executives $100 to

read aloud gangsta rap lyrics from albums distributed under

its name, and a protest against the sale of gangsta rap albums

outside a Tower Records store, for which she was arrested. 

Death Row is an independent record label founded in 1991

by Suge Knight and the well-known rap artist Dr. Dre. Death

Row signed extremely popular gangsta rap stars including Dr.

Dre, Tupac Shakur (“Tupac”), Snoop Doggy Dogg (“Snoop”),

and Danny Boy, generating enormous profit, and notoriety,

for the label throughout the mid-1990s. Interscope is a general

partnership that records and distributes popular music. Like

Death Row, it gained success and prominence during the

1990s through the distribution and sale of gangsta rap. From

1992 to 1998, Death Row maintained an exclusive contractual

relationship with Interscope, whereby Interscope was the sole

distributor of Death Row’s music. 

In 1995, Mrs. Tucker and the Entertainment Commission

began to direct their anti-gangsta rap campaign at Death Row.

Knight, Death Row’s outside counsel David Kenner, and

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1795
Omar Bradley, who was then the mayor of Compton, California, were invited to the NPC’s biennial convention in July

1995, where they attended a meeting with Mrs. Tucker and

other members of the Entertainment Commission. Some facts

—including who initiated the meeting—are in dispute, but it

is uncontested that this meeting occurred. According to Mrs.

Tucker’s deposition testimony, during the meeting she spoke

with Knight about the influence of gangsta rap on AfricanAmerican youth and asked him to change the violent and

misogynist nature of the lyrics on the albums he produced.

Mrs. Tucker testified that Knight agreed to make changes and

to come back to the Entertainment Commission with a sample. 

At some point shortly before or after the NPC convention,

Warwick held an informal meeting with Knight, Snoop, and

Danny Boy at her home in Los Angeles. According to Warwick, the group discussed removing several references to

women as “bitches” and “ho’s” on Dogg Food, an album by

Tha Dogg Pound that Death Row would soon be releasing.

Warwick testified at her deposition that she relayed this information to Mrs. Tucker, Alexander, and Michael Fuchs, thenCEO of Warner Music Group, an affiliate of Time Warner. 

The summary judgment record contains a letter, dated

August 7, 1995, printed on NPC letterhead. The letter appears

to be from Knight, though it does not bear his signature. It is

addressed to Mrs. Tucker in her capacity as chair of the NPC.

The letter commemorates the purported details of Knight’s

meeting with Mrs. Tucker at the NPC convention and reads

in part: 

I [Knight] hereby designate and authorize the [NPC]

to negotiate an acceptable contract relationship with

Time Warner Inc. regarding the production and distribution of [Death Row] music products. I hereby

understand that the above arrangement is based on

the fact that my company will cease and desist from

1796 ESTATE OF TUCKER v. INTERSCOPE RECORDS
the production and distribution of misogynist,

obscene and pornographic music. . . . This authorization is submitted to demonstrate my good faith in

cooperating with the [NPC] in every way possible to

reverse the negative trends in African-American

music. 

There is conflicting testimony as to the circumstances of the

letter’s drafting, but according to Mrs. Tucker’s own testimony it was drafted in the NPC office at her request. Mrs.

Tucker also testified that she “gave the final okay to it.” 

On August 8, 1995, another meeting took place at Warwick’s house. In attendance were Warwick, Mr. Tucker,

Fuchs, and Alexander. Knight was invited but did not attend.

Kenner testified at his deposition that he spent that day with

Knight and that Knight received several phone calls throughout the day from someone at the meeting. According to Kenner, Knight was offered $80 million and two recording studios

if he would agree to break Death Row’s contract with Interscope and enter into a new contract with the Warner Music

Group. Warwick and Mr. Tucker each testified, when

deposed, that no one at the meeting made such an offer to

Knight; Warwick also testified that Knight called her that day

“at least four times” to discuss problems he had with the

August 7 letter. 

On August 9, 1995, Kenner sent Warwick a letter on

Knight’s behalf, indicating that “Mr. Knight has never conveyed [the] authorization [for the NPC to negotiate a contract

with Death Row and Time Warner] and to the extent that

there is any misapprehension . . . Mr. Knight hereby specifically repudiates any such agreement. . . . Mr. Fuchs [sic]

offer, as conveyed to Mr. Knight, of an $80,000,000 advance

and to provide him with two studios if he would agree to sign

directly with Time/Warner is specifically rejected.” 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1797
B. The Underlying Litigation 

On August 15, 1995, Interscope filed a complaint

(“Interscope v. Tucker”) in the United States District Court

for the Central District of California, charging Mrs. Tucker

with inducement to breach contract, interference with contractual relations and prospective business advantage, attempting

to induce breach of fiduciary duty, and unfair business practices and unfair competition. Interscope sought damages and

an injunction enjoining Mrs. Tucker from attempting to

induce Death Row to breach its contract, interfering with the

Death Row contract, tortiously interfering with Interscope’s

prospective business advantage, and attempting to induce

Time Warner and/or Atlantic Records to breach their fiduciary duties to Interscope.4

 The complaint listed Charles Ortner, Geoffrey Thomas, and Belinda Orem from the law firm

of Paul, Hastings, Janofsky & Walker, LLP (“Paul Hastings”)

as attorneys for Interscope. 

On August 17, 1995, Death Row filed a complaint (“Death

Row v. Tucker”) in the United States District Court for the

Central District of California, naming as defendants Mrs.

Tucker, the NPC, Time Warner, Inc., Warner Music Group,

Inc., Fuchs, and Gerald Levin, who was then-chair of Time

Warner’s board of directors. The complaint charged all defendants with racketeering and/or aiding and abetting racketeering under 18 U.S.C. § 1962(b) and (c); conspiring to violate

§ 1962(b) and (c); conspiring to interfere with advantageous

business relationships; extortion; unfair business practices;

and abuse of process. The complaint also sought to enjoin all

defendants from engaging in extortion, interfering with Death

Row’s First Amendment rights, and “any other unlawful act

alleged in this complaint.” Kenner was listed as counsel for

Death Row. 

4Atlantic was named as a nominal defendant and later dismissed on

Interscope’s motion. 

1798 ESTATE OF TUCKER v. INTERSCOPE RECORDS
Interscope v. Tucker and Death Row v. Tucker were

assigned to the same district court judge. The district court

granted Mrs. Tucker’s motion for judgment on the pleadings

in Interscope v. Tucker as to the claim for inducement to

breach a contract but denied the motion as to the remaining

claims. Pre-trial activity continued until June 1998, when

Interscope and Death Row each filed motions for voluntary

dismissal on the grounds that “Tucker is essentially judgment

proof” and Interscope and Death Row no longer had a contractual relationship “for business reasons unrelated to this litigation.” The district court granted the motions and dismissed

both Interscope v. Tucker and Death Row v. Tucker without

prejudice, over Mrs. Tucker’s objection that the suits should

be dismissed with prejudice.

C. The Malicious Prosecution Litigation

Within a month of the dismissal, the Tuckers filed their

complaint in Tucker v. Interscope in the United States District

Court for the Eastern District of Pennsylvania, invoking

diversity jurisdiction. The complaint charged Interscope,

Death Row, Ortner, and Paul Hastings (“Interscope Defendants”) with malicious use of civil proceedings, abuse of process, intentional infliction of emotional harm, common law

civil conspiracy, and racketeering conspiracy in violation of

18 U.S.C. § 1962(d). Upon Defendants’ motion, the case was

transferred to the Central District of California. The Tuckers

later successfully moved to withdraw all but the malicious

prosecution and loss of consortium claims. 

The Tuckers filed their complaint in Tucker v. Kenner in

the United States District Court for the Central District of California, naming Kenner and Thomas as defendants (“Kenner

Defendants”), along with five other defendants who were subsequently dismissed, and again invoking diversity jurisdiction.5

5The district court and the parties relied on California law in both cases,

as do we. Neither party has argued that Pennsylvania law should apply in

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1799
The Kenner complaint similarly raised claims for malicious

prosecution and loss of consortium, in addition to abuse of

process, slander, and negligent and intentional infliction of

emotional distress. The district court later dismissed all but

the malicious prosecution and loss of consortium claims. 

After discovery, the Interscope and Kenner Defendants

filed separate motions for summary judgment based on (1) an

affirmative defense of unclean hands; (2) lack of favorable

termination; (3) existence of probable cause; (4) lack of malice; (5) insufficient evidence of damages; and (6) no loss of

consortium. The district court granted the motion on the basis

of insufficient evidence of damages and no loss of consortium

but declined to address the other issues on the ground that

they were moot. We reversed the summary judgment rulings

in both cases in an unpublished memorandum disposition. See

Tucker v. Kenner, 85 F. App’x 610 (9th Cir. Jan. 14, 2004)

(unpublished).6 We remanded with instructions to the district

court to consider the remaining grounds for summary judgment: unclean hands; lack of favorable termination; existence

of probable cause; and lack of malice. Id. at 614. 

On remand, the Interscope and Kenner Defendants again

filed for summary judgment asserting: (1) an unclean hands

affirmative defense; (2) lack of favorable termination; (3) no

loss of consortium; and (4) existence of probable cause for the

underlying claims; and (5) lack of malice. 

In Tucker v. Interscope, the district court concluded that

genuine issues of fact existed as to favorable termination and

Defendants’ affirmative defense of unclean hands. It conthe Interscope case. See C.N.R. Atkin v. Smith, 137 F.3d 1169, 1170-71

(9th Cir. 1998) (“The district court applied California law to this dispute

and neither party objected. Therefore, we consider the parties to have

waived any objection to the application of California law.”). 

6We consolidated Tucker v. Kenner with Tucker v. Interscope for purposes of the appeal from the initial summary judgments. 

1800 ESTATE OF TUCKER v. INTERSCOPE RECORDS
cluded, however, that all Interscope Defendants had probable

cause to pursue claims for intentional interference with contractual relationship, intentional interference with prospective

business advantage, and unfair business practices and unfair

competition. However, regarding Interscope, Ortner, and Paul

Hastings, the district court found that genuine issues of fact

existed as to whether they had probable cause to pursue the

claims for inducement to breach contract and inducement to

breach fiduciary duty. Regarding Death Row, the district

court found that genuine issues of fact existed as to whether

it had probable cause to pursue the claims for RICO violations, state law extortion, and abuse of process. 

In addition, the district court concluded that the Tuckers

“failed to produce any evidence to show that the Interscope

Defendants acted with malice” in filing the underlying lawsuits and that Mr. Tucker’s alleged injuries were insufficient

to support a claim for loss of consortium. It therefore dismissed the malicious prosecution claim based on insufficient

evidence of malice and dismissed the loss of consortium

claim because it was alleged as a derivative claim and because

Mr. Tucker’s evidence was insufficient to establish a loss of

consortium. The Tuckers timely appealed the district court’s

judgment, Case No. 05-56045.7

In Tucker v. Kenner, the district court concluded that Kenner and Thomas had probable cause to pursue the claims for

intentional interference with contractual relationship, intentional interference with prospective business advantage, and

unfair business practices and unfair competition. It concluded

that material issues of fact remained whether Thomas had

7After the Tuckers timely appealed the district court’s judgment, Case

No. 05-56045, Death Row filed for bankruptcy. We granted a stay as to

Death Row but allowed the Tuckers to proceed after the bankruptcy court

granted their motion for relief from the automatic stay provided in 11

U.S.C. § 362(a). Although Death Row has been represented by counsel

throughout the duration of this appeal, it has never filed a brief and did not

make an appearance at oral argument. 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1801
probable cause to pursue the claims for inducement to breach

contract and inducement to breach fiduciary duty and whether

Kenner had probable cause to pursue the claim for abuse of

process. The district court further concluded that material

issues of fact remained as to favorable termination and Defendants’ unclean hands affirmative defense. 

As in Tucker v. Interscope, however, the district court concluded that the Tuckers “failed to produce any evidence to

show that [Thomas] acted with malice” and therefore dismissed the malicious prosecution and loss of consortium

claims against him. The court also dismissed the loss of consortium claim against Kenner for lack of evidence but did not

address whether the Tuckers’ evidence could show that Kenner acted with malice. In response to this ambiguity, Kenner

filed a second motion for summary judgment on the basis of

lack of malice and for clarification of the court’s prior ruling.

The district court’s subsequent ruling determined that the

malicious prosecution claim against Kenner should be dismissed because “the evidence Plaintiffs offer in addition to

this finding is insufficient to show that Kenner acted with

malice.” Therefore, “[a] reasonable jury could not return a

verdict in [the Tuckers’] favor” and summary judgment was

warranted.8 The Tuckers timely appealed this judgment as

well, Case No. 06-55376. 

8

Judge Noonan’s partial concurrence and partial dissent states that “the

district court has ruled as a matter of law that Kenner lacked probable

cause to bring the claim for abuse of process.” Dissent at 1802. This statement is not entirely accurate. In the memorandum accompanying the district court’s order the judge said two different things—stating in

discussion that he “notes” that “Kenner lacked probable cause” to bring

the abuse of process claim, but then on the following page concluding that

“genuine issues of fact exist[ ] as to [probable cause], which preclude[ ]

finding as a matter of law in his favor.” Tucker v. Kenner, No. CV99-

06129 (C.D. Cal. filed Feb. 24, 2006). This ambiguity is of no consequence to our ultimate disposition of the Tuckers’ claim against Kenner.

See discussion infra Part IV(C)(1). 

1802 ESTATE OF TUCKER v. INTERSCOPE RECORDS
III.

Jurisdiction and Standard of Review

The district court had original jurisdiction over both cases

under 28 U.S.C. § 1332. Our jurisdiction over the Tuckers’

timely appeals arises under § 1291. We review de novo a district court’s grant of summary judgment. Delta Sav. Bank v.

United States, 265 F.3d 1017, 1021 (9th Cir. 2001). 

Federal rather than California procedural rules govern this

diversity action. See Gasperini v. Ctr. for Humanities, Inc.,

518 U.S. 415, 427 (1996). Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City

of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A defendant

who moves for summary judgment bears the initial burden of

proving the absence of any triable issue of fact but need not

produce evidence negating elements of a claim for which the

plaintiff bears the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 323-25 (1986). A non-moving plaintiff

can defeat a motion for summary judgment by producing evidence “such that a reasonable jury could return a verdict” in

his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Pursuant to Federal Rule of Civil Procedure 56(e), a

non-moving plaintiff cannot “rest upon the mere allegations

or denials of the adverse party’s pleading” but must instead

produce evidence that “set[s] forth specific facts showing that

there is a genuine issue for trial.” Id. (internal quotation marks

omitted). 

IV.

The Malicious Prosecution Claims

[1] Under California law, a malicious prosecution claim is

disfavored and requires proof that the underlying litigation: 

(1) was commenced by or at the direction of the

defendant and was pursued to a legal termination in

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1803
his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice. 

Zamos v. Stroud, 87 P.3d 802, 807 (Cal. 2004) (internal quotation marks, citations, and alterations omitted). In addition,

the plaintiff must demonstrate “resulting damage by way of

attorneys’ fees incurred in defense, mental distress, and/or

injury to reputation or social standing.” Harbor Ins. Co. v.

Cent. Nat’l Ins. Co., 211 Cal. Rptr. 902, 907 (Ct. App. 1985).

Because, with one exception, we conclude that the Tuckers’

evidence did not establish a genuine issue of fact as to malice,

we do not address the element of favorable termination for

Mrs. Tucker.9 We discuss the element of probable cause to the

extent it relates to malice. 

A. The Elements of Malice and Probable Cause 

“The ‘malice’ element of the malicious prosecution tort

relates to the subjective intent or purpose with which the

defendant acted in initiating the prior action. . . .” Sheldon

Appel Co. v. Albert & Oliker, 765 P.2d 498, 503 (Cal. 1989).

In Sierra Club Found. v. Graham, 85 Cal. Rptr. 2d 726 (Ct.

App. 1999), the California Court of Appeal explained: 

[M]alice is present when proceedings are instituted

primarily for an improper purpose. Suits with the

hallmark of an improper purpose are those in which:

(1) the person initiating them does not believe that

his claim may be held valid; (2) the proceedings are

begun primarily because of hostility or ill will; (3)

the proceedings are initiated solely for the purpose of

depriving the person against whom they are initiated

of a beneficial use of his property; (4) the proceed9Nor need we revisit whether Mrs. Tucker suffered damages as a result

of the underlying litigation because we determined that there were such

damages in Tucker v. Kenner, 85 F. App’x 610 (9th Cir. Jan. 14, 2004)

(unpublished). 

1804 ESTATE OF TUCKER v. INTERSCOPE RECORDS
ings are initiated for the purpose of forcing a settlement which has no relation to the merits of the

claim. 

Id. at 739-40 (internal quotation marks, citation, and alteration

omitted). Malice is usually a question of fact for the jury to

determine. See Sheldon Appel Co., 765 P.2d at 503. Summary

judgment on the basis of lack of malice is nonetheless appropriate when there is no evidence from which a reasonable fact

finder could conclude that the defendant pursued the underlying action with malice. See Ghebreselassie v. Coleman Sec.

Serv., 829 F.2d 892, 899 (9th Cir. 1987) (affirming summary

judgment dismissal of malicious prosecution claim under California law when plaintiff could “point to no evidence from

which a fact-finder could reasonably infer that the investigators or the employer lacked probable cause or that they acted

with malice”).

Probable cause, in contrast, is a question of law that turns

on whether the underlying claim was “legally tenable, as

determined on an objective basis.” Padres L.P. v. Henderson,

8 Cal. Rptr. 3d 584, 600 (Ct. App. 2004). Whereas the element of malice focuses on the defendant’s state of mind at the

time he initiated the underlying litigation, probable cause: 

“is measured by the state of the defendant’s knowledge, not by his intent. . . . [T]he standard applied to

defendant’s consciousness is external to it. The question is not whether he thought the facts to constitute

probable cause, but whether the court thinks they

did.” 

Sheldon Appel Co., 765 P.2d at 508 (quoting Dir. Gen. v.

Kastenbaum, 263 U.S. 25, 27-28 (1923)) (emphasis in Sheldon Appel Co.). 

[2] The elements of malice and probable cause therefore

require different showings. The probable cause inquiry is

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1805
objective, asking whether a reasonable person would have

thought that the claim was legally tenable “without regard to

[her] mental state.” Roberts v. Sentry Life Ins., 90 Cal. Rptr.

2d 408, 412 (Ct. App. 1999). The only potential factual issue

for purposes of probable cause is “the state of the defendant’s

knowledge” at the time she initiated the underlying lawsuit.

Sheldon Appel Co., 765 P.2d at 507.10 “[W]hen the state of the

defendant’s factual knowledge is resolved or undisputed, it is

the court which decides whether such facts constitute probable cause or not.” Id. at 508.11

[3] Malice, on the other hand, is shown through evidence

of “the subjective mental state of the defendant in instituting

the prior action.” Downey Venture v. LMI Ins. Co., 78 Cal.

Rptr. 2d 142, 152 (Ct. App. 1998) (internal quotation marks

omitted). Because the objective reasonableness of the underlying lawsuit is separate from a defendant’s subjective mental

state in bringing it, 

by itself, the conclusion that probable cause is absent

logically tells the trier of fact nothing about the

defendant’s subjective state of mind. . . . [T]he presence of malice must be established by other, additional evidence. . . . [T]hat evidence must include

proof of either actual hostility or ill will on the part

10The California Supreme Court explained in Sheldon Appel Co. that

“when . . . there is evidence that the defendant may have known that the

factual allegations on which his action depended were untrue, the jury

must determine what facts the defendant knew” before the court can determine the existence of probable cause as a matter of law. Id. at 508. 

11See also id. at 506 (“the probable cause element calls on the trial court

to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known

to the defendant, the institution of the prior action was legally tenable. The

resolution of that question of law calls for the application of an objective

standard to the facts on which the defendant acted.”) (rejecting Tool

Research & Eng’g Corp. v. Henigson, 120 Cal. Rptr. 291 (Ct. App.

1975)). 

1806 ESTATE OF TUCKER v. INTERSCOPE RECORDS
of the defendant . . . to deliberately misuse the legal

system for personal gain or satisfaction at the

expense of the wrongfully sued defendant. 

Id. at 153-54 (citations and footnote omitted) (emphasis

added); see also Grindle v. Lorbeer, 242 Cal. Rptr. 562, 565

(Ct. App. 1987) (“[I]n a given case, unreasonable behavior

which could lead to a determination that there was a lack of

probable cause to file, might not provide a sufficient basis to

infer malice.” (emphasis added) (internal quotation marks

omitted)). 

[4] As recently as 2002 the California Court of Appeal has

emphasized that where malice must be shown, only “other,

additional evidence” apart from a lack of probable cause, is

sufficient. Swat-Fame, Inc. v. Goldstein, 101 Cal. App. 4th

613, 634 (2002) (citing Downey Venture, 66 Cal.App.4th at

498), disapproved on other grounds by Zamos v. Stroud. In

Swat-Fame, that additional evidence was the deposition testimony of defendant Goldstein. In her testimony Goldstein

admitted as true facts that she had alleged were false in her

recently-filed complaint against Swat-Fame. When her complaint was dismissed, Swat-Fame brought suit for malicious

prosecution. The court of appeal determined that the discord

between Goldstein’s two accounts, as well as her settlement

tactics in the earlier litigation raised a material issue as to

whether she “knowingly [brought] an action without probable

cause.” Id. Swat-Fame confirms our understanding of California law that the two elements—probable cause and malice—

are not only distinct but that “a lack of probable cause, standing alone, does not support an inference of malice.” Id.12

12To the contrary, the dissent’s use of Swat-Fame to insist that a knowing lack of probable cause can be inferred from a mere lack of probable

cause is unfounded. Such an argument—as where the dissent argues that

the absence of an actual breach of contract (objective evidence of probable

cause) “could allow a jury to infer that Kenner knowingly brought [the

claim] without probable cause”—both contradicts the plain facts of that

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1807
For the reasons that follow, we conclude that—save for the

abuse of process claim filed by David Kenner—the Tuckers’

evidence did not create a triable issue of fact whether the

Interscope or Kenner Defendants acted with malice in pursuing Interscope v. Tucker and Death Row v. Tucker. Although

the Tuckers have not attempted to differentiate their evidence

of malice as it relates to Interscope and Death Row as parties

in the underlying litigation and to Ortner, Kenner, Thomas,

and Paul Hastings as attorneys for the parties, we note that a

party’s malfeasance in initiating a lawsuit is not imputable to

counsel. See Zeavin v. Lee, 186 Cal. Rptr. 545, 548 (Ct. App.

1982). Nor are claims related to continuing such a lawsuit

interchangeable for parties and attorneys.13 We therefore separately consider the two groups of defendants. 

case and effectuates an end-run around the very distinction central to

Swat-Fame’s analysis. See Dissent at 1834, 1839; see also Dissent at 1835

(lack of probable cause for racketeering claim evinces “hate-filled malignancy”); Dissent at 1833 (Kenner lacking probable cause for abuse of process claim would allow the jury to infer not only that Death Row lacked

probable cause but also that such a circumstance could lead a jury to infer

that both Kenner and Death Row held “knowing assertion[s]” of malice

(emphasis added)). We respectfully disagree with the dissent’s characterization of Swat-Fame. 

13The dissent overlooks this crucial distinction and therefore misreads

Zamos v. Stroud. The dissent offers Zamos for the proposition that “malice

in continuing a lawsuit is as actionable as malice in originating it.” Dissent

at 1837. But the dissent overlooks that the holding in Zamos did not concern the post-filing conduct of the parties. Rather, Zamos held that an

attorney who continues to prosecute a suit that he knows is without basis

is liable for malicious prosecution where “any reasonable attorney would

agree [that the case is] totally and completely without merit” as a matter

of law. Zamos, 87 P.3d at 810. This holding is narrow. Weighing the effect

of newly acquired evidence on the continued prosecution of a lawsuit is

a matter peculiarly within the knowledge and competence of an attorney.

It is difficult, therefore, to see how Zamos says anything about how the

court should view Death Row’s role with respect to the ad in The Source

or Tupac’s lyrics, or how Zamos stands for the general proposition that

“malice in continuing a lawsuit is as actionable as malice in originating

it.” 

1808 ESTATE OF TUCKER v. INTERSCOPE RECORDS
B. Defendants Death Row and Interscope 

[5] The Tuckers first assert that they could prove malice to

a jury because they have contested factual allegations made in

the complaints in Death Row v. Tucker and Interscope v.

Tucker. A “bare assertion that [defendants] ‘fabricated’ evidence” does not show malice. Sangster v. Paetkau, 80 Cal.

Rptr. 2d 66, 75 (Ct. App. 1998); see also Fed. R. Civ. P. 56(e).14

The Tuckers’ evidence comprises only Mrs. Tucker’s deposition testimony that the underlying cases were “lies, and that’s

the reason this [malicious prosecution] suit was filed,” and

similar statements by Mr. Tucker. These unsubstantiated

assertions do not create a triable issue of fact regarding the

existence of malice. Moreover, “the fact there may be some

disputed facts relevant to the merits of the underlying action

does not by itself defeat a motion for summary judgment in

a malicious prosecution action.” Sangster, 80 Cal. Rptr. 2d at

76. 

[6] The Tuckers also argue that the district court erred in

14The Tuckers mistakenly rely on Axline v. Saint John’s Hospital and

Health Center, 74 Cal. Rptr. 2d 385 (Ct. App. 1998), disapproved on other

grounds by Hassan v. Mercy Am. River Hosp., 74 P.3d 726 (Cal. 2003),

for the proposition that a malicious-prosecution plaintiff can defeat a

motion for summary judgment by alleging that the defendant knew that

the information upon which he or she based the underlying claim was

false. Axline, however, dealt with a dismissal following the trial court’s

sustaining of a demurrer, the California equivalent of a motion to dismiss

on the pleadings under Federal Rule of Civil Procedure 12(b)(6). See

Axline, 74 Cal. Rptr. 2d at 387 (“When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of

action.”). For purposes of a demurrer, California courts treat all allegations

in the complaint as true. C & H Foods Co. v. Hartford Ins. Co., 211 Cal.

Rptr. 765, 768 (Ct. App. 1984). To defeat a summary judgment motion,

by contrast, the non-moving party “may not rest upon the mere allegations

or denials” in the pleadings. Fed. R. Civ. P. 56(e). The non-moving party

must establish the existence of a genuine factual dispute on the basis of

admissible evidence; bare allegations without evidentiary support are

insufficient to survive summary judgment. 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1809
granting summary judgment on the basis of lack of malice

when there were genuine issues of fact regarding the existence of probable cause for some claims brought in the underlying litigation. But the fact that the district court found

triable issues of fact as to probable cause for some claims,

without more, is insufficient to survive summary judgment

based on lack of malice. See Paulus v. Bob Lynch Ford Inc.,

43 Cal. Rptr. 3d 148, 161 (Ct. App. 2006) (“Malice cannot be

established simply by a showing of the absence of probable

cause. . . .”); Downey, 78 Cal. Rptr. 2d at 153-54 (holding that

underlying claim’s “lack[ of] legal tenability . . . without

more, would not . . . permit the inference [of malice]” and

requiring that “the presence of malice . . . be established by

other, additional evidence”). As explained above, malice

requires proof of a defendant’s subjective state of mind; a

“conclusion that probable cause [as an objective inquiry] is

absent logically tells the trier of fact nothing about the defendant’s subjective state of mind.” Downey, 78 Cal. Rptr. 2d at

153. Even if we were to agree with the dissent that probable

cause was lacking for many of the claims alleged in Death

Row v. Tucker and Interscope v. Tucker, the evidence provided by the Tuckers is simply not probative of the subjective

intent in filing the underlying lawsuits. 

In Padres, the Court of Appeal concluded that the plaintiff

established a prima facie case of malice15 because, in addition

to the lack of probable cause, the defendant filed repeated

actions against the plaintiff “in order to interfere with and/or

derail” the plaintiff’s business venture. 8 Cal. Rptr. 3d at 605.

This evidence of subjective intent was in addition to the lack

of probable cause and was sufficient to defeat summary judg15In Padres the defendant moved to strike the plaintiff’s malicious prosecution claim under California Code of Civil Procedure section 425.16,

commonly known as the Strategic Lawsuit Against Public Participation

(“SLAPP”) statute. Defeating an anti-SLAPP motion requires the plaintiff

to “make a prima facie showing of facts that would be sufficient to sustain

a favorable judgment under the applicable evidentiary standard.” Padres,

8 Cal. Rptr. 3d at 594. 

1810 ESTATE OF TUCKER v. INTERSCOPE RECORDS
ment. See id. In HMS Capital, Inc. v. Lawyers Title Co., 12

Cal. Rptr. 3d 786 (Ct. App. 2004), the court similarly found

that the plaintiff had made a prima facie showing of malice

sufficient to defeat the defendant’s anti-SLAPP motion when

it produced evidence that the defendant knew the underlying

suit lacked any factual basis, took no depositions, and offered

to accept $25,000 in exchange for dismissing the case. Id. at

796-97. “These facts could support a conclusion that [defendant] was simply trying to squeeze a settlement from [plaintiff] on a baseless case, and hence evidence of malice.” Id. at

797. 

The Tuckers argue that they, too, have produced evidence

of malice with respect to Death Row and Interscope. Specifically, they rely on a two-page advertisement taken out in the

October 1995 issue of The Source, a popular hip-hop magazine, which they characterize as “calling for Mrs. Tucker’s elimination,”16 and derogatory references to Mrs. Tucker in the

songs “How Do U Want It” and “Wonda Why They Call U

Bitch” on Tupac’s 1996 album All Eyez on Me.

17 The Tuckers

16One page of the advertisement features in large type the words

“DEATH ROW RECORDS” and promotes Snoop Dogg’s latest album

“Dogg Food from Tha Dogg Pound.” The artists featured on the release

are listed, and include Dr. Dre, Daz, and Kurupt. The facing page, in the

same large type, features the words “FREEDOM FIGHTERS” and lists,

in a similar fashion, the names of twelve legendary civil rights advocates,

including Martin Luther King, Jr., Nelson Mandela, and Sojourner Truth.

Mrs. Tucker’s name appears at the bottom of the list slashed through with

a red line. The page also includes a quotation from King’s “I Have a

Dream Speech” and a quotation by Knight, dated August 28, 1995:

“ ‘Whether it’s freedom for our people or freedom for our people to say

what’s on their minds the fight lives on . . .’ ” (ellipsis in original). Knight

is identified as “CEO Death Row Records.” 

17“How Do U Want It” addresses Mrs. Tucker as a “muthafucka” and

berates her because “instead of trying to help a nigga you destroy a brotha,

worst than the others.” In “U Wonda Why They Call U Bitch,” Tupac

raps, “Dear Ms. Delores [sic] Tucker, you keep stressin’ me, fuckin with

a motherfuckin’ mind. I figured you wanted to know, you know, why we

call them ho’s bitches. Maybe this might help you understand. It ain’t personal. It’s strictly business, baby, strictly business.” These lyrics were the

subject of separate litigation. See Tucker v. Fischbein, 237 F.3d 275 (3d

Cir. 2001); Tucker v. MTS, Inc., 229 F.3d 1139 (3d Cir. 2000) (Table)

(unpublished). 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1811
assert that a jury could infer from the ad and lyrics that Death

Row and Interscope harbored hostility toward Mrs. Tucker

and that they brought the underlying lawsuits for the improper

purpose of chilling her anti-rap campaign.

[7] We disagree because under California law malice is

shown through evidence of “the subjective mental state of the

defendant in instituting the prior action.” Downey Venture, 78

Cal. Rptr. 2d at 152 (internal quotation marks omitted)

(emphasis added). This is not a case like Padres, where

repeated actions were filed, or HMS Capital were no depositions were taken and questionable settlement tactics were pursued. Here, even assuming the Tuckers produced sufficient

evidence from which a jury could connect the ad in The

Source or Tupac’s lyrics to either Interscope or Death Row,18

such conduct occurred months after the suits were initiated

and is simply not probative of either party’s subjective intent

in filing the underlying litigation. Placing an ad to promote

Snoop Dogg’s latest album, or calling out an individual in

lyrics—even if done so in a shocking and degrading way—

does not present any of the “hallmark[s]” of a lawsuit brought

for an improper purpose. See Sierra Club, supra, 72 Cal. App.

4th at 1157. Nor does Zamos address this question.19 On this

18The Tuckers have failed to show a factual link between the ad in The

Source and Interscope. The ad itself is silent as to Interscope and, presumably, for Interscope to be liable the Tuckers would have to show that Interscope was directly involved in the ad, or that Interscope, as the exclusive

distributor of Death Row’s music, managed and controlled Death Row to

the extent that Death Row was a mere agent or instrumentality of Interscope, see Marr v. Postal Union Life Ins. Co., 105 P.2d 649, 654-55 (Cal.

1940) (establishing factors by which a parent corporation may be liable for

the torts of a subsidiary). The Tuckers have failed to do either. 

As to the derogatory references to Mrs. Tucker in All Eyez On Me, the

fact that Death Row produced the album and that Interscope distributed it

do not tie either defendant to the derogatory lyrics. No reasonable finder

of fact could infer from the lyrics that Death Row or Interscope harbored

malice towards Mrs. Tucker and filed the prior, underlying lawsuits for

that reason. 

19Zamos is the only California authority cited by the dissent for the

proposition that “malice [by parties] in continuing a lawsuit is [ ] action1812 ESTATE OF TUCKER v. INTERSCOPE RECORDS
record, no California authority supports, nor could any reasonable finder of fact infer, that this post-filing conduct was

probative of why the parties filed Interscope v. Tucker and

Death Row v. Tucker. 

[8] The Tuckers next assert that a jury could infer improper

purpose from the fact that Death Row and Interscope prosecuted the underlying lawsuits for three years without seeking

a hearing on their claims for injunctive relief and then voluntarily dismissed the suits. In light of the Tuckers’ own discovery delays, for which they were sanctioned, the mere fact that

the litigation never progressed to a hearing or trial on the merits is insufficient to create a triable issue of fact regarding

malice. Nor do the voluntary dismissals in Death Row v.

Tucker and Interscope v. Tucker suggest that Death Row and

Interscope initiated those lawsuits believing their claims to be

meritless. Cf. Sierra Club, 85 Cal. Rptr. 2d at 740 (rejecting

argument that post-dismissal settlement was “[ ]relevant to the

issue of [defendant’s] state of mind for purposes of the malicious prosecution”). The Tuckers produced no evidence to

undermine Defendants’ explanation that they dismissed Death

Row v. Tucker and Interscope v. Tucker upon the termination

of their contractual relationship, at which point most of the

underlying claims for injunctive relief became moot and the

underlying claims for damages, given that the Tuckers were

judgment-proof, became futile. Nor could a jury reasonably

infer that the statements in the Defendants’ motions that the

Tuckers were judgment-proof were somehow “windowdressing meant to disguise the absence of any fact supporting

the outrageous claims asserted.” Dissent at 1832. To the contrary, the California Court of Appeal has encouraged timely

dismissals, noting that: 

able.” Dissent at 1837. But, the post-filing behavior at issue in Zamos

involved an attorney who continued to prosecute a case after discovering

facts demonstrating that the lawsuit had no merit. That case does not contemplate whether post-filing conduct by the parties evinces malice in initiating the suit. 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1813
the law favors the early resolution of disputes,

including voluntary dismissal of suits when the

plaintiff becomes convinced he cannot prevail or

otherwise chooses to forego the action. This policy

would be ill-served by a rule which would virtually

compel the plaintiff to continue his litigation in order

to place himself in the best posture for defense of a

malicious prosecution action. 

Leonardini v. Shell Oil Co., 264 Cal. Rptr. 883, 897-98 (Ct.

App. 1989) (citation omitted). 

[9] Finally, the Tuckers assert they can demonstrate malice

on the ground that Interscope named only Mrs. Tucker (and

Atlantic Ventures nominally) as a defendant. Given that the

strongest evidence supporting Interscope’s claims was the

August 7 letter bearing Mrs. Tucker’s name, the decision to

name only Mrs. Tucker rather than other members of the NPC

and its Entertainment Commission reflects a prudent litigation

decision and is not evidence that the parties knowingly

brought an action without probable cause or that they harbored especial ill will towards Mrs. Tucker.

[10] In sum, we agree with the district court’s legal conclusion that the Tuckers did not produce sufficient evidence from

which a jury could infer that either Death Row or Interscope

pursued the underlying litigation out of malice.

C. Attorney-Defendants Ortner, Thomas, Kenner, and

Paul Hastings 

[11] To show that attorney-Defendants Ortner, Thomas,

Kenner, and the law firm of Paul Hastings acted with malice

in pursuing the underlying litigation on behalf of their clients,

the Tuckers must do more than rely on the evidence relating

to Death Row and Interscope’s own purposes in initiating

Death Row v. Tucker and Interscope v. Tucker. See Zeavin,

186 Cal. Rptr. at 548 (rejecting the “argument of joint liability

1814 ESTATE OF TUCKER v. INTERSCOPE RECORDS
of attorney and client for the conduct of each other where

both are joined as defendants in a malicious prosecution

action” and noting that “the client is not the agent of his attorney”); see also Morrison v. Rudolph, 126 Cal. Rptr. 2d 747,

752 (Ct. App. 2004) (“ ‘Usually, the client imparts information upon which the attorney relies in determining whether

probable cause exists for initiating a proceeding. The rule is

that the attorney may rely on those statements as a basis for

exercising judgment and providing advice, unless the client’s

representations are known to be false.’ ” (quoting Mallen &

Smith, Legal Malpractice (5th ed. 2000) § 6.19, p. 620)

(emphasis added)), disapproved of on other grounds by

Zamos, 87 P.3d at 802. To ultimately prevail against any of

the attorney-Defendants, the Tuckers must show “other, additional evidence” that demonstrates the attorney’s own malice

or knowing lack of probable cause. Swat-Fame, 101 Cal. App.

4th 613 at 634 (citing Downey Venture, 66 Cal. App. 4th at

498); see also Ross v. Kish, 51 Cal. Rptr. 3d 484, 497 (Ct.

App. 2006) (holding that “because the evidence suggests [the

attorney-defendant] knew the claims for breach of contract

and legal malpractice lacked factual and legal support[,] . . .

a trier of fact reasonably could infer [the defendant-attorney]

filed the action with malice”). 

1. Kenner and the Claim for Abuse of Process 

With respect to the abuse of process claim in Death Row

v. Tucker, the Tuckers have raised a triable issue of fact under

the above standard. A reasonable fact-finder could infer from

Kenner’s drafting of the complaint that Kenner knew the

abuse of process claim lacked merit.20 In drafting the com20The fact that Kenner included multiple causes of action in the complaint, some of which were pled properly on the known facts at the time

of filing, does not affect our determination that Kenner’s abuse of process

claim raises a triable issue of fact regarding malice. Under California law,

“it is not necessary that the whole proceeding be utterly groundless, for,

if groundless charges are maliciously and without probable cause, coupled

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1815
plaint, Kenner alleged that Mrs. Tucker’s “wrongful use of

the criminal and civil justice system” was an abuse of process

under California state law. The only fact in the complaint to

support that allegation was that “[Suge] Knight was specifically threatened that as a result of [Tucker’s] power and influence that [he] would spend the rest of his life in jail.” Even

if Kenner sincerely relied on his client’s representations that

such a threat was made by Tucker, Kenner’s use of that allegation to state an abuse of process claim provides a triable

issue as to whether Kenner did so with malice. 

[12] This is because under well-established California law,

the tort of abuse of process “requires misuse of a judicial process.” Stolz v. Wong Commc’ns Ltd. P’ship, 25 Cal. App. 4th

1811, 1822 (Ct. App. 1994). It is a process that is “pursuant

to authority of [a] court.” Meadows v. Bakersfield Sav. &

Loan Ass’n., 59 Cal. Rptr. 34, 37 (Ct. App. 1967); see id.

(“[T]he essence of the tort ‘abuse of process’ lies in the misuse of the power of the court; it is an act done in the name of

the court and under its authority for the purpose of perpetrating an injustice.”); see also 5 Witkin, Summary of Cal. Law

(10th ed. 2005) Torts, § 517, pp.767-68. To succeed in an

action for abuse of process, a litigant must establish that the

defendant (1) contemplated an ulterior motive in using the

judicial process, and (2) committed “a willful act in the use

of th[at] process not proper in the regular conduct of the proceedings.” Oren Royal Oaks Venture v. Greenberg, Bernhard,

Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986). Misuse of an administrative proceeding—even one that is quasiwith others which are well founded, they are not on that account less injurious, and, therefore, [even one charge can] constitute a valid cause of

action.” Crowley v. Katleman, 881 P.2d 1083, 1088 (Cal. 1994) (internal

quotation marks omitted); see also Bertero v. Nat’l Gen. Corp., 529 P.2d

608 (Cal. 1974) (approving a jury instruction allowing the jury to find for

the plaintiff in a malicious prosecution action even if only one of the three

theories of liability pleaded in the underlying action lacked probable

cause). 

1816 ESTATE OF TUCKER v. INTERSCOPE RECORDS
judicial—does not support a claim for abuse of process. Stolz,

25 Cal. App. 4th at 1823-25 (noting that there is “no authority” that extends the tort to administrative proceedings). Nor

is there any authority—Kenner’s citation to Standing Committee on Discipline v. Ross not withstanding—that threats made

outside of the judicial process can form the basis for an abuse

of process claim. See Ross, 735 F.2d 1168, 1170 (9th Cir.

1984) (threatening criminal charges to obtain an advantage in

an ongoing civil action subjected lawyer to disciplinary proceedings). 

[13] Here, in drafting the abuse of process claim, Kenner

relied on vague language about “wrongful use of the criminal

and civil justice system” despite clearly established law that

requires misuse of a court process.21 Moreover, he supported

the claim with the mere factual assertion that Tucker would

use her “influence” to ensure that Knight went to jail. These

circumstances raise a genuine triable issue of fact as to Kenner’s “subjective mental state . . . in instituting the [claim].”

Downey Venture, 78 Cal. Rptr. 2d at 152. A fact-finder could

reasonably infer from Kenner’s drafting of the complaint that

he did not believe the claim was valid when filed, or that the

claim was instituted for an improper purpose.22

21For this reason, although Kenner invites us to affirm the district

court’s grant of summary judgment on the basis that he had probable cause

to include the abuse of process claim in Death Row v. Tucker, he has

utterly failed, on this record, to demonstrate that he is entitled to judgment

as a matter of law. We therefore have no basis on which to affirm on this

alternative ground. 

22We also note that the only additional evidence that Kenner obtained

after he filed the complaint, according to his own deposition, was that,

“[Tucker] apparently did call the Justice Department, I think Janet Reno

directly, and I think she called Alcohol, Tobacco and Firearms, and I think

she called the FBI . . . there [may have been] an investigation that followed.” Even assuming arguendo that such complaints or investigations

occurred, the tort of abuse of process lies in the misuse of the power of

the court. Meadows, 59 Cal. Rptr. at 37. Under these circumstances, a reasonable fact-finder could infer, as recognized in Zamos, that Kenner’s continued prosecution of the abuse of process claim, after learning that it had

no merit, was evidence of a malicious intent. See also Sycamore Ridge

Apt’s v. Naumann, 69 Cal. Rptr. 3d 561, 579-81 (Ct. App. 2007) (applying

Zamos). 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1817
2. Ortner, Thomas, Paul Hastings and the Remaining

Claims against Kenner 

[14] With respect to Ortner, Thomas, Paul Hastings, and

the remaining claims against Kenner, the Tuckers fail to pinpoint how any of the evidence in the record suggests that any

of the attorney-Defendants filed Death Row v. Tucker and

Interscope v. Tucker for a purpose other than honoring their

clients’ wishes. The Tuckers have not shown, with respect to

these remaining claims, that the attorneys affirmatively knew

that the factual bases for the underlying suits to be false at the

time the suits were filed, cf. Morrison, 126 Cal. Rptr. 2d at

752. Nor have the Tuckers shown that any attorney-Defendant

continued to prosecute any of the remaining claims after

learning that they were not supported by probable cause.

Zamos, 87 P.3d at 810. Given this lack of evidence, the district court correctly concluded that no reasonable trier of fact

could find that the attorney-Defendants, with the exception of

Kenner’s claim for abuse of process, acted with malice when

they filed the underlying litigation on behalf of Death Row

and Interscope.23

V.

Loss of Consortium

Mr. Tucker’s claim for loss of consortium was derivative

of his wife’s cause of action for malicious prosecution. The

district court granted summary judgment in favor of all the

Kenner and Interscope Defendants, in part, on the basis that

Mr. Tucker’s claim was tied to the malicious prosecution

claims, which the court determined did not survive summary

judgment. Were this the only basis for the court’s disposition

23The dissent provides no legal authority from a California court for its

assertion that a decision to file numerous claims is probative of malice.

Dissent at 1835-36. Nor does the “two against one” posture of the underlying litigation, see id. at 1838, establish any triable issue regarding malice.

1818 ESTATE OF TUCKER v. INTERSCOPE RECORDS
of this claim, reversal might well be warranted because we

have concluded that the malicious prosecution claim must

proceed as to Kenner. See Snyder v. Michael’s Stores, Inc.,

945 P.2d 781, 785 (Cal. 1997) (“One spouse cannot have a

loss of consortium claim without a prior disabling injury to

the other spouse.”). 

However, the district court also reached the merits of Mr.

Tucker’s claim and concluded on the limited evidentiary

record that, “the harm . . . is more akin to a loss of society and

companionship than the type of longstanding and debilitating

impairment to the relationship necessary to support a loss of

consortium.” We can affirm the district court’s grant of summary judgment on any basis supported by the record, and we

agree. 

To support a loss of consortium claim, marital spouses

must allege that their partner suffered an injury that is “sufficiently serious and disabling to raise the inference that the

conjugal relationship is more than superficially or temporarily

impaired.” Molien v. Kaiser Found. Hosp., 616 P.2d 813, 823

(Cal. 1980); Anderson v. Northrop Corp., 250 Cal. Rptr. 189,

195 (Ct. App. 1988) (same). The injury may be physical or

psychological, but psychological injury must “rise[ ] to the

level of a ‘neurosis, psychosis, chronic depression, or phobia’

[to be] sufficient to substantially disturb the marital relationship.” Anderson, 250 Cal. Rptr. at 195, quoting Molien, 616

P.2d at 813. 

[15] We agree with the district court that Mr. Tucker’s testimony does not raise a triable issue as to psychological injury

sufficiently serious or disabling as to raise an inference that

his relationship with his wife was more than superficially

impaired. Therefore, the district court properly granted Defendants’ motion for summary judgement as to Mr. Tucker’s loss

of consortium claims. 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1819
VI.

Conclusion

With the exception of the abuse of process claim where the

Tuckers raised a triable issue as to Kenner’s malice, the Tuckers did not produce evidence from which a jury could find

malice, which is a necessary element of the malicious prosecution claim. Although Mrs. Tucker’s estate may be entitled

to recover damages for malicious prosecution, the district

court appropriately granted summary judgment for the Kenner

and Interscope Defendants with respect to Mr. Tucker’s cause

of action for loss of consortium. We therefore affirm the district court’s grant of summary judgment in Tucker v. Interscope, No. 05-56045, and affirm in part and reverse in part the

district court’s grant of summary judgment in Tucker v. Kenner, No. 06-53376. 

05-56045 AFFIRMED.

06-53376 AFFIRMED in part; REVERSED in part;

REMANDED.

In 05-56045, Defendants shall recover their costs on

appeal. 

In 06-53376, the parties shall bear their own costs on

appeal.

NOONAN, Circuit Judge, concurring and dissenting: 

The legal question to be decided is whether Tucker presented sufficient evidence to create a triable issue of material

fact as to whether Death Row and Kenner had sued her with

malice when they began and continued a suit against her

charging her with racketeering involving extortion, mail and

1820 ESTATE OF TUCKER v. INTERSCOPE RECORDS
wire fraud; intentional interference with contract; and abuse

of process, and whether there was sufficient evidence of malice to go to a jury as to whether Interscope, Ortner, and Paul,

Hastings had acted with malice when they began and continued a suit against Tucker in which she was charged with conspiracy, disrupting a contract, depriving Interscope of

property and extortion. The standard of review is that all

inferences are to be drawn in favor of Tucker, the nonmoving

party. It is evident, I believe, that Tucker submitted sufficient

evidence to defeat the summary judgments in favor of Death

Row Records, Interscope, Kenner, Ortner and Paul, Hastings.

A statement of the facts, followed by a statement of the law

will show the basis for this contention. 

FACTS

The Cast of Principal Characters. The plaintiff, C. Delores

Tucker (Tucker), was a person of prominence in the African

American community, in the Democratic Party, and in the

Commonwealth of Pennsylvania. In the 1970’s, she was Secretary of State of the Commonwealth — the first woman and

the first African American to serve in this office. She served

as Chair of the Democratic National Committee Black Caucus. She was the first African American president of the

National Federation of Democratic Women. She crossed the

path of the defendants by her concern over the popularity and

promotion of gangsta rap and the impact of gangsta rap upon

the behavior of black youths and upon the reputation of the

black community. In 1995, she was 68 years-old. 

Dionne Warwick (Warwick) had an established reputation

in rhythm and blues, soul, and soft contemporary music. Warwick’s public service included raising money for AIDS

research, serving as the American Ambassador for Health in

the 1980’s, and acting as global ambassador for the UN’s

Food and Agriculture Organization in 2002. Her music

reached a wide public and struck a note very different from

that of gangsta rap, as in her signature song “Walk On By”:

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1821
If you see me walking down the street

And I start to cry each time we meet

Walk on by, walk on by

Make believe that you don’t see the tears

Just let me grieve in private ‘cause each time I see

you

I break down and cry 

Death Row Records (Death Row), founded in 1991, is the

producer of gangsta rap and other music. Its revenues are estimated to have been $900,000 in 1993 and to have been

$33,000,000 in 2002. It is currently in bankruptcy. Its cofounder and CEO in the period 1993-1998, when the events

relative to this litigation occurred, was Suge Knight. Death

Row signed some of hip-hop’s biggest stars, including Tupac

Shakur, and dominated the rap industry in the mid-1990’s.

The company came to represent the West Coast rap movement in the emerging East Coast-West Coast rap rivalry that

eventually led to the murders of Tupac Shakur in 1996 and

Tupac’s East Coast rival rapper, Biggie Smalls in 1997. At the

time relevant to this litigation, Death Row had a distribution

agreement with Interscope Records. 

Marion “Suge” Knight, Jr. (Knight) was 28 years-old in

1993. He had been charged with and pled no contest to auto

theft, possessing a concealed weapon, attempted murder,

assault, and battery with a deadly weapon. He was convicted

of assault in 1992 and placed on probation. In 1996, he was

sentenced to nine years in prison for parole violation.

Knight’s criminal career after dates relevant to the litigation

is omitted. 

Interscope Records was a California general partnership

consisting in 1993-1995 of Interscope Records, Inc. and

Atlantic Ventures, an affiliate of Time Warner. 

Time Warner is a media and communications company

whose principal place of business is New York. Its total assets

1822 ESTATE OF TUCKER v. INTERSCOPE RECORDS
in 1995 were $3.72 billion. At the start of the underlying suits,

Time Warner owned a 50 percent share of Interscope Records

through its affiliate Atlantic Ventures. 

David Elliot Kenner (Kenner) was in 1995 a 53 year-old

lawyer, a graduate of the law school of the University of

Southern California, engaged in the solo practice of law in

Encino, California. 

Charles B. Ortner (Ortner) was 50 years old in 1995, had

graduated from Brooklyn Law School, and was an attorney

with Paul, Hastings. 

Paul, Hastings, Janofsky & Walker (Paul, Hastings) is a

large law firm headquartered in Los Angeles and has 17 other

offices around the world employing 1200 attorneys. 

Events. In 1993, when Tucker was the Chair of the National

Political Congress of Black Women (the NPC), she listened

to the plea of Warwick and Melba Moore, another wellknown African American performer, to do something about

“what’s going on in Hollywood about our young people calling us whores and bitches and disrespecting and denigrating

African American women.” Tucker followed up by checking

on whether this stuff was sold to children. If it was, she was

going to “put my marching shoes back on that I marched with

Dr. Martin Luther King hand in hand in Selma.” The stuff

was sold to children. Tucker began marching. 

As president of the NPC, Tucker enlisted Warwick, Moore,

Voncier Alexander, and Terri Rossi to form an Entertainment

Commission, whose Mission Statement ran as follows:

The goals of the National Political Congress of

Black Women, Inc. (NPCBW) Entertainment Commission (NPCBW Entertainment Commission) are

threefold: 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1823
• Seek to eliminate internal blockage in the industry that currently and most obviously prevents

African Americans from the achievement of

equal opportunities as artists and those positions

of decision making.

• Mobilize African Americans in the industry to

join the struggle to resolve critical issues affecting African American communities, particularly

in the areas of education and health, where so

many serve as role models and spokespersons.

• Offer strategies and solutions of reshaping and

maintaining positive images to preserve the dignity and heritage of our youth . . . instead of continuously exposing our youth to negative media

that distort their images of male/female relationships, undermines the stability of our families,

communities and nation by encouraging violence,

abuse and sexism as acceptable behaviors, and

perpetuates the cycle of low self-esteem of African American youth. 

Tucker’s march had just started. She demonstrated outside

a Tower Records store to protest its sale of albums of gangsta

rap to minors. She gained support for her cause from a broad

spectrum of national leaders, including William Bennett, Joe

Lieberman, Tipper Gore, Bob Dole, and Sam Nunn. She testified before the Federal Communications Commission and

before committees of Congress on the harm done by gangsta

rap. She attended a Time Warner stockholders’ meeting

where she offered the corporation’s executives $100 if they

would read gangsta rap aloud to the meeting. In short, Tucker

using the skills and smarts of a woman knowledgeable about

political endeavors and media responses, took advantage of

the democratic processes available to aroused citizens, and

made herself a terrific nuisance to a principal producer of

gangsta rap, Death Row. 

1824 ESTATE OF TUCKER v. INTERSCOPE RECORDS
On July 7, 1995, the NPC convened its biennial convention

in Seattle. Suge Knight and Kenner as Death Row’s lawyer

met with Tucker and others. They discussed the formation of

a distribution company owned by blacks that could distribute

Death Row Records if Suge Knight eliminated the gangsta

rap. 

On August 7, 1995, Tucker and others drafted a letter for

Knight’s signature, memorializing the July 7 meeting. In the

letter, Knight stated that Death Row “will cease and desist

from the production and distribution of misogynist, obscene

and pornographic music,” a preliminary condition for

Knight’s authorization of NPC “to negotiate an acceptable

contract relationship with Time Warner Inc. regarding the

production and distribution of our music products.” This letter

was unsigned and delivered to Knight. The next day, August

8, Warwick arranged a meeting attended by about ten persons,

some of them NPC members, not including Tucker, and four

persons from Time Warner. Michael Fuchs, an executive of

Warner Music, wanted to know if Knight had a contract with

Interscope to distribute his records. Fuchs had flown from

New York to meet Knight and “the purpose of the meeting

was for [Fuchs] to sort of grill Suge Knight on his involvement or his relationship with Interscope.” Knight had been

invited, but wasn’t there. He telephoned repeatedly from

11:00 A.M. to 4:00 P.M. to say he was on the way. Knight

spent the day with his lawyer, Kenner, and James Iovine, then

the President of Interscope Records. 

The following day, August 9, Kenner drafted a letter signed

by Kenner and Knight and addressed to Dionne Warwick. The

letter rejected the draft letter sent to Knight, affirmed his position to stand by his music and musicians, and stated that

Tucker had misunderstood him or was misrepresenting what

he had said. The letter also rejected what it described as “Mr.

Fuchs’ offer, as conveyed to Mr. Knight, of an $80,000,000

advance and to provide him with two studios if he would

agree to sign directly with Time Warner.” 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1825
Kenner then conferred with Ortner, counsel for Interscope.

On August 15, 1995, Ortner filed a complaint on behalf of

Interscope against Tucker in the Central District of California.

The complaint alleged that beginning in mid-1995, for her

own “personal and financial gain,” Tucker “together with others whose identities are [ ] unknown,” engaged in a conspiracy to destroy Interscope by “committing extortion, threats,

and other unlawful acts.” Interscope’s partner, the Time Warner affiliate, was also named but characterized as “a nominal

defendant.” 

The first claim of the complaint was that as a result of

Tucker’s actions, “the contractual relationship between Interscope and Death Row Records has been disrupted.” The second claim sought a preliminary and permanent injunction

against these acts. The third claim was for such injunctions

against Tucker attempting to induce Time Warner and its

affiliate Atlantic Ventures to breach their fiduciary duty to

Interscope. The fourth claim sought similar injunctions

against Tucker engaging in unfair business practices and

unfair competition, by reason of which “Interscope has

incurred irreparable harm and has been deprived of its property rights.” Compensatory, exemplary, and punitive damages

were sought on each claim, along with reasonable attorneys

fees. The complaint carried the name of three lawyers and the

firm name of Paul, Hastings. It was signed in Ortner’s name.

Two days later, on August 17, 1995, Kenner on behalf of

Death Row also filed in the Central District a complaint

against Tucker; the NPC; Time Warner; the Warner Music

Group; Michael Fuchs; and Gerald Levin for “multiple violations of the Racketeer Influenced and Corrupt Organization

Act (RICO), 18 U.S.C. § 1961-68, as well as various other

violations of federal and state laws.” The allegations against

Tucker were stated to be against her as an individual and as

“a representative or officer of [the NPC].” Fuchs was identified as chairman of Warner Music and Levin as chairman of

Time Warner. The defendants were alleged to be in a conspir1826 ESTATE OF TUCKER v. INTERSCOPE RECORDS
acy “to enrich the Defendants themselves.” The defendants

were said to have engaged in their unlawful scheme “[f]or the

past 13 months,” that is, since July, 1994. Their acts began

with “a smear campaign.” “This campaign, primarily directed

toward Defendant TIME WARNER, was and is an apparent

attempt to induce action through political pressure.” Tucker

“did not disclose her ulterior motive to replace and supplement Interscope Records as the distributer of the recorded

output of Death Row Records. This commercial goal was hidden and obscured by Defendant TUCKER.” Among the acts

charged against Tucker personally was her picketing of a

Time Warner stockholders’ meeting, her denouncing Time

Warner “for their support of music containing ‘explicit’ lyrics, and its alleged denigration of African-American women.”

Tucker’s recruitment of William Bennett and Bob Dole to her

cause was also alleged against her. 

The first cause of action set out was racketeering in violation of 18 U.S.C. § 1962(b) and (c). Tucker, the NPC “and

others” unknown were said to have formed an enterprise to

establish “a record distribution company controlled by Defendant TUCKER.” The enterprise was attempting to secure its

objective by a “pattern of racketeering activity.” The predicate criminal acts included extortion, that is, an attempt to

obtain property from Death Row Records “by a wrongful use

of force or fear against Knight” resulting in “actual,” although

unknown, damages to Death Row. Mail fraud in violation of

18 U.S.C. § 1841 was another part of the pattern, a crime carried out by the draft letter proposed for Knight’s signature on

August 7, 1995. Wire fraud in violation of 18 U.S.C. § 1343

was also part of the pattern, the fraud consisting in unspecified uses of “the wires, radio, or televison communications”

with the result of actual, but unknown, damage to Death Row.

The defendants were further charged with criminal interference with interstate commerce in violation of 18 U.S.C.

§ 1951-2, a crime alleged to have been committed simply “by

transporting persons and things in interstate commerce” in

furtherance of their scheme. A final element of the unlawful

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1827
pattern was the conspiracy of the defendants to achieve their

unlawful end. 

The second cause of action alleged conspiracy in violation

of 18 U.S.C. § 1962(d) and sought treble damages for unspecified harm. The third cause of action alleged a “conspiracy to

interfere with advantageous business relationships” broadly

said to be “in violation of federal and state law.” The fourth

cause of action was for intentional interference with contract

and prospective business advantage. The fifth cause of action

made “extortion” its gravamen. The sixth cause of action was

“unfair business practices”; the seventh was “abuse of process,” by the defendants “threatening to fabricate and pursue

a course of conduct designed to cause criminal and civil liability to Knight,” a crime amounting to “wrongful use of the

criminal and civil justice system.” 

Death Row sought an injunction against all the defendants,

treble damages for the first and for the second causes of

action, and compensatory, exemplary, and punitive damages

for all causes of action. 

In October 1995, two months after the litigation began, an

ad appeared in The Source, a hip-hop magazine, listing twelve

black freedom fighters such as Martin Luther King, Jr. and

Nelson Mandela. To this list a thirteenth name had been

added, that of Tucker. A red line was drawn through this

name. At the bottom of the ad were two quotes. The first was

attributed to Martin Luther King, Jr.: “When we let freedom

ring, . . . we will be able to speed up that day when all of

God’s children . . . will be able to join hands and sing . . .

‘Free at last! Free at last! Thank God Almighty, we are free

at last.’ ” A second quote followed under this first one.

Underneath this paragraph and parallel to it were these words:

“Whether it’s freedom for our people or freedom for our people to say what’s on their minds the fight lives on . . . .” Following this quotation, its author was identified as “Suge

Knight, CEO of Death Row Records. 

1828 ESTATE OF TUCKER v. INTERSCOPE RECORDS
On October 4, 1995, Kenner wrote counsel for Tucker, stating “Death Row, because of the actions of the parties, including your clients, has been damaged and Death Row Records

has every right to proceed to have their case heard without

delay.” Death Row and Interscope made demand for the production of documents including “without limitation, any communication, notes of conversations, correspondence,

contracts, proposals, drafts and/or memoranda . . . that reflect,

refer, or relate to Interscope, Death Row and/or rap music”

and “[a]ll of your personal and business telephone records,

logs, messages and related documents, for the period of January 1, 1995 to the present.” In their capacity as plaintiffs, they

also took Tucker’s testimony for four days of depositions. A

month later, they took another four days, so that the total testimony came to 1,700 pages contained in eight volumes. In

1996, approximately thirteen months later, they took another

three days of depositions from Tucker, adding three more volumes to the total. 

In February 1996, Death Row produced and Interscope distributed an album sung by Tupac Shakur. One song, “How Do

U Want It?” asked: 

Now tell me is it cool to fuck? 

Did you think I came to talk? 

The rapper went on in the course of his song to say:

Delores Tucker, yous a muthafucka,

Instead of trying to help a nigga you

Destroy a brotha, worst than the others,

Bill Clinton, Mr. Bob Dole, you too old

To understand the way the game’s told.

You lame soul, I got to hit you with the high facts.

When some release makin’ millions . . . . 

A second song on the album, “Wonda Why They Call U

Bitch,” concluded:

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1829
Dear Ms. Delores Tucker, you keep stressin’ me,

Fuckin’ with a motherfuckin’ mind.

I figured you wanted to know, you know,

Why we call them ho’s bitches.

Maybe this might help you understand.

It ain’t personal.

It’s strictly business, baby, strictly business.

So if u wonda why we call u bitch

U wonda why we call u bitch

If u wonda why we call u bitch,

U wonda why we call u bitch. 

Trial was finally set, for October 27, 1998. On June 1,

1998, Death Row filed a notice of motion to dismiss its entire

action. The reasons given were that Death Row and Interscope had severed their relationship and Death Row no longer

needed injunctive relief to protect it and that investigation had

shown that Tucker and the NPC lacked money to satisfy the

damages to which Death Row was entitled. Interscope also

moved for dismissal of its action. On June 18, 1998, the

motions were granted. 

PROCEEDINGS

Judge Paez’s opinion accurately states the beginning and

course of the two cases now consolidated for decision. Tucker

died at the age of 78 in 2005; her husband, William Tucker,

is now her personal representative. Death Row is in bankruptcy, and its bankruptcy estate is being managed by a courtappointed trustee. 

The district court’s ruling in the Kenner case was as follows: 

While the court notes that Kenner lacked probable

cause to pursue a claim of abuse of process in the

underlying litigation, the evidence Plaintiffs offer in

addition to this finding is insufficient to show that

1830 ESTATE OF TUCKER v. INTERSCOPE RECORDS
Kenner acted with malice. Plaintiffs have offered no

evidence to support their allegation that Kenner

knew no threats were levied against his client. Moreover, Plaintiffs’ assertion is inconsistent with Kenner’s deposition testimony as well as Mrs. Tucker’s

admission that she did contact the Justice Department and the FBI regarding Death Row Records.

Lastly, Plaintiffs’ allegations about Kenner’s conduct during the course of litigation amount to nothing more than mere speculation and fail to

demonstrate actual hostility or ill will. A reasonable

jury could not return a verdict in Plaintiffs’ favor on

this evidence. As such, summary judgment is warranted as to this issue. 

The district court added: 

Defendant Kenner also seeks clarification as to the

court’s ruling regarding probable cause and favorable termination. The court advises Defendant that

genuine issues of fact existed as to both issues which

precluded a finding as a matter of law in his favor.

In the Interscope case, the court found that genuine issues

of material fact remained as to Interscope Records’ probable

cause for inducement to breach contract and inducement to

breach fiduciary duty as well as Death Row’s probable cause

to file claims for RICO violations, extortion, and abuse of

process. 

ANALYSIS

In these diversity cases, it is uncontested that California law

should govern. We consider them separately except to note

that both suits brought by the defendants against Tucker terminated in her favor. A necessary element of a case for malicious prosecution is judgment against the plaintiffs in the suits

that they maliciously launched. Under California law a volunESTATE OF TUCKER v. INTERSCOPE RECORDS 1831
tary dismissal accepted by the court constitutes such a judgment even though the phrase “with prejudice” is not added to

the dismissal. Fuentes v. Berry, 38 Cal. App. 4th 1800, 1808

(1995). 

Tucker v. Kenner. On the evidence presented by Tucker, a

jury could conclude that Kenner lacked probable cause and

filed and pursued Death Row’s action against Tucker and the

NPC with malice. 

First, as to the objective lack of probable cause: The district

court has already ruled that there are triable issues of fact as

to probable cause. Death Row and Kenner have not appealed

that ruling. It may, therefore, seem to be a work of supererogation to review the counts of the Death Row complaint in

terms of their lack of any foundation in fact. That, however,

is not the case. Lack of probable cause can be an element in

the proof of malice. Even more significantly, knowledge of

the lack of probable cause is itself proof from which a jury

may infer malice. Swat-Fame, Inc. v. Goldstein, 101 Cal.

App. 4th 613, 634 (2002). Reasons exist, therefore, to review

the lack of probable cause for many of the claims of the quondam plaintiffs and the likelihood that the claims were knowingly brought without cause. 

First, after three years of investigation, discovery, and

deposition-taking, Kenner voluntarily withdrew Death Row’s

action against Tucker, including the claims that she had committed a variety of federal and state crimes. A jury could reasonably infer that the stated reason that Tucker and the NPC

were judgment-proof was window-dressing meant to disguise

the absence of any fact supporting the outrageous claims

asserted. Second, a jury could make an inference from the difference between the Interscope and Death Row complaints.

Although both companies and their lawyers were in communication in preparing their respective suits, and although both

corporations had the same information about Tucker and the

same reasons to hate her, Interscope did not charge Tucker

1832 ESTATE OF TUCKER v. INTERSCOPE RECORDS
with racketeering. If there were any evidence of racketeering

in possession of Death Row, a jury could infer that it would

have been shared with Interscope. The absence of racketeering charges in Interscope’s complaint would permit a rational

trier of fact to conclude that, more probably than not, Death

Row and Kenner knew no facts to support their racketeering

claims. Third, a jury could also infer from the extraordinary

vagueness of several of Death Row’s criminal charges that

Kenner was merely using boiler plate without possession of

any facts on which to act. A trier of fact could consider, for

example, the failure to identify any actual harm caused by the

conduct complained of; the utterly unspecified reference to

“uses” of “the wires”; the strange charge of criminal interference in interstate commerce by the transport of “persons and

things.” Fourth, a jury could also infer that the racketeering

charges against the NPC were without any foundation and

without any purpose except to make out Tucker as a scheming

and faithless fiduciary who would manipulate an educational

group for her own private profit. 

Fifth, the district court has ruled as a matter of law that

Kenner lacked probable cause to bring the claim for abuse of

process. This ruling has not been appealed and is the law of

the case. A jury could infer that if Kenner lacked probable

cause so did Death Row. Further, a jury could infer that Kenner knew there was no probable cause for this claim. As a

lawyer, Kenner must have known that an abuse of process “is

an act done in the name of the court and under its authority

for the purpose of perpetrating an injustice,” and thus, the

essence of an abuse of process claim “lies in the misuse of the

power of the court.” Meadows v. Bakersfield Sav. & Loan

Ass’n, 250 Cal. App. 2d 749, 753 (1967). Tucker had brought

no suit against his client. A jury could well infer that the

knowing assertion of this claim manifested malice. 

Similarly, an action for intentional interference with contract requires an actual breach or disruption of the contractual

relationship. Quelimane Co. v. Stewart Title Guar. Co., 960

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1833
P.2d 513, 530 (Cal. 1998). The absence of any evidence of an

actual breach could allow a jury to infer that Kenner knowingly brought and continued Death Row’s actions without

probable cause. 

Finally, that the August 7, 1995 letter authorized the NPC,

and not Tucker, to “negotiate an acceptable contract relationship” on behalf of Death Row suggests that Tucker could not

have harbored a ulterior motive of personal enrichment as

alleged in Death Row’s complaint. A jury could infer from

this letter that Kenner had no probable cause and therefore

harbored malice in attributing hidden motives to Tucker

where no such evidence existed. 

As to evidence from which a rational trier of fact could

infer malice, Swat-Fame, 101 Cal. App. 4th at 634, shows that

the knowing bringing of a baseless claim is sufficient for a

jury to conclude that a case was brought maliciously. Second,

the charges against Tucker evince hatred. A 68 year-old civic

leader is charged with a spate of offenses that would be

appropriate to an indictment of a mafioso. She is an extortionist and a racketeer. She has organized a racketeering enterprise to enrich herself. Malice gleams from Death Row’s

complaint. 

Third, the allegations in the complaint specifically set out

the criminal conduct charged to Tucker as beginning in 1994.

In their brief on appeal the defendants acknowledge that

Tucker had a perfect right under the First Amendment to agitate against gangsta rap and to ask others to join in her cause.

That is precisely what she was doing in 1994. Not even a

shred of evidence exists to show that this veteran of the civil

rights movement was acting for her personal profit on any

occasion in 1994. What Tucker was doing, both in 1994 and

in 1995, a jury could find, was what Bob Dole, Tipper Gore

and Joe Lieberman were doing — telling Time Warner and its

affiliate, “Get this stuff off the air. You should be deeply

ashamed. You are maligning women. You are promoting law1834 ESTATE OF TUCKER v. INTERSCOPE RECORDS
lessness. You are denigrating an entire ethnic community. For

heaven’s sake and for the sake of your own reputation, get out

of it.” Warwick, a deeply respected singer, had taken the lead.

Yet Tucker alone was charged with racketeering and a pattern

of racketeering reaching back to the period of her acknowledged First Amendment activity. Her profit-seeking motive is

alleged to have been “hidden.” A jury could conclude that a

hidden motive was an imagined motive, a motive maliciously

conjured up to bolster Death Row’s complaint. Only malicious minds, a jury might decide, could so construe her toughminded and democratic strategy. 

Fourth, former education Secretary William Bennett is

named as a recruit of Tucker. His recruitment is an asserted

part of the pattern of racketeering. The dogged determination

to do in Tucker is manifestly malicious when her wooing of

a senior American political leader is asserted to constitute

criminal behavior. 

Fifth, the complaint alleged that Levin, the CEO of Time

Warner, and Fuchs, the CEO of Warner Music, were engaged

in the racketeering conspiracy to enrich Tucker. The sheer

implausibility of this claim, unsupported by any specific allegations, could lead a jury to infer malice. Hate-filled malignancy, a jury could infer, had led to the fantastic supposition

that a multi-billion dollar corporation sought to enrich Tucker

by cooperating in her racketeering. 

Sixth, a jury could infer malice from the way Death Row

and its counsel conducted the case — first asserting a need for

a prompt trial but at no point moving for a restraining order

or preliminary injunction; besieging Tucker with an oppressive demand for discovery; harassing Tucker with days of

deposition-taking, while taking very little deposition testimony from Warwick, who participated in the August meeting;

and taking no depositions from Fuchs and Levin, alleged to

be Tucker’s partners in crime. 

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1835
Seventh, three publications outside of the Death Row complaint shed light on Death Row’s motives. The first is the ad

in The Source. Tucker believed that the ad called for her

death. She was deposed as to the pain it caused her and the

precautions she felt obliged to take to prevent being killed. No

direct evidence was submitted establishing that Death Row

paid for the ad. A jury could take into account two facts: (1)

The concluding quotation was ascribed to Knight in his corporate capacity. This quotation is paired with the quotation of

Martin Luther King, Jr.; (2) Knight had reason to hate Tucker.

This full page ad improbably put Knight on par with King,

pointedly identified Knight as Death Row’s CEO, and marked

Tucker, at least symbolically, for destruction. The inference

could rationally be drawn that the ad was inserted in The

Source by Death Row and was significant evidence of its malice as it continued its suit against Tucker. The two songs

made by Tupac under the Death Row record label during the

litigation demonstrate the strongest antipathy to Tucker, who

is assailed in vile language. A jury could well conclude, If this

evidence does not exhibit malice, what would? 

Kenner is not personally responsible for the ad or the lyrics.

He is responsible for setting out the malicious imaginings of

a client with such hate, or so a jury could conclude. Kenner

could be held responsible for the irresponsible assortment of

criminal charges in the complaint against Tucker that he

drafted and filed. Despite his extensive experience with the

criminal law, Knight does not appear to have had the education necessary to conceive of the RICO charges and to express

Tucker’s alleged crimes in words fitted to the statutory provisions invoked. A jury could well conclude that the special

malice of the racketeering allegations owed their origin and

presentation to the knowledge and skills of Kenner. An attorney cannot escape liability by saying, “I was only a hired gun.

My client and its CEO may have been malicious, but I was

not.” Kenner could be found to have begun and continued the

suit sharing the malice of his client and to have expressed

malice in the drafting of the complaint. 

1836 ESTATE OF TUCKER v. INTERSCOPE RECORDS
It is argued that the ad in The Source and Tupac’s lyrics are

not evidence of malice at the start of the suit because they

appeared after the suit was started. For two reasons, this argument is unconvincing. First, a jury could well infer that the

hatred of Tucker displayed in the ad and in the lyrics was not

a sudden development arising out of the suit, but the overt

demonstration of what had smouldered and been fueled by

anger at Tucker’s campaign against gangsta rap. Second, it is

good California law that malice in continuing a lawsuit is as

actionable as malice in originating it. Zamos v. Stroud, 87

P.3d 802, 810 (Cal. 2004). The ad and the lyrics demonstrate

malice in the prosecution of the suit. 

It has been suggested that the ad can be read as the personal

act of Suge Knight, not of Death Row. Again that argument

cannot be sustained. First, Knight’s corporate title was used

to identify him. Second, Knight — as far as this record shows

— was Death Row. When he appears in the record, he is bargaining, complaining, negotiating for Death Row without reference to its directors or to any corporate control. He is it, or

so a jury could reasonably infer. 

It has been suggested that Death Row is not responsible for

Tupac’s lyrics. The suggestion is one possible reading of the

evidence. But a jury could reasonably infer that the extraordinarily pointed references to Tucker did not arise out of any

special animus against her on Tupac’s part but were designed

by Death Row and its CEO to bring their adversary into a

public pillory. 

Tucker v. Interscope, Death Row, Ortner, and Paul, Hastings. Tucker sued Interscope, Death Row, Ortner and Paul,

Hastings on five grounds that have been winnowed in the

course of its action and an appeal consists in a single claim

of malicious prosecution. Again, it is desirable to examine the

elements of the claim that consist in the lack of probable

cause as well as the presence of malice. A jury could infer

Death Row’s malice and lack of probable cause from the

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1837
same evidence showing Kenner’s malice and lack of probable

cause, as discussed earlier. What of the acts of Interscope

taken by itself and of the lawyers representing Interscope in

the litigation against Tucker? 

Interscope’s complaint alleged that Tucker was a conspirator engaged in extortion and other unlawful acts for her own

profit. The few facts stated in the complaint focused on hazy

and inconclusive accounts of the July 1995 meeting and on

accounts of the August 1995 meeting held by Warwick from

which Knight, Kenner, and Tucker were all absent. A jury

could infer that not only was probable cause lacking for these

baseless charges, but that Interscope and its lawyers, Ortner

and his firm, knew that the charges were baseless. 

Second, a theory of both complaints was that Tucker was

using her leverage with Time Warner, no doubt sensitive to

adverse publicity, to break Interscope’s contract with Death

Row. In fact, however, in September 1995, less than two

months afer the complaints were filed, Time Warner terminated the only investment it had in the joint venture with

Interscope. Despite the absence now of any channel by which

Tucker could affect Death Row’s relation to Interscope, the

suit continued for three years without a foundational fact. 

Third, the plaintiffs lined up against Tucker were Death

Row and Interscope. Yet she was alleged to be disrupting

their relation. The improbability of the two plaintiffs being set

against each other by Tucker would permit a jury to infer that

the suits were continued after they had lost even a smidgen of

probability. 

Fourth, the claim that the Interscope-Death Row relationship had been disrupted was palpably untrue. The contract

between them had not been breached. Their counsel, Ortner

and Kenner, worked hand and glove together, or so the jury

might infer from the coordination of the complaints. The allegation that Interscope had “incurred irreparable harm” and

1838 ESTATE OF TUCKER v. INTERSCOPE RECORDS
had been “deprived of its property rights” was unsupported

and inferably known by the Interscope attorneys to be untrue.

Conclusion. The evidence in this record, interpreted as it

must be, in favor of the nonmoving party is sufficient to

require the reversal of summary judgment for Kenner, Death

Row, Interscope, Ortner, and Paul, Hastings. As a matter of

law, their cases against her ended with prejudice. The law of

this case is that there are triable issues as to probable cause.

Tucker’s evidence affords multiple instances where a jury

could infer, from what Death Row, Kenner, Interscope, and

Ortner said and did, that the suits brought and maintained

against Tucker were knowingly and therefore maliciously

filed without probable cause and were prosecuted with malice

for three years in an oppressive way, long after a scintilla of

cause had been extinguished. 

Two issues appear to divide the court. The first is whether

malicious prosecution can be shown by malicious acts by a

defendant performed after the defendant has brought the lawsuit that the plaintiff complains of. Judge Paez’s opinion

seems to suggest that malice in the mind of the defendant can

only be shown by what is alleged in his complaint. That view

of the law is mistaken. Malice may be shown by malicious

acts subsequent to the complaint in the continuation of the

lawsuit. See Zamos, 87 P.3d 802; Del Rio v. Jetton, 55 Cal.

App. 4th 30, 36 (1997). 

In Zamos, the court listed the elements of a suit for malicious prosecution, including the requirement that the suit was

“initiated with malice.” Zamos, 87 P.3d at 807 (citations omitted) (italics in original). The court noted that the defendants

in the case before it argued that continuing to prosecute a lawsuit discovered to lack probable cause did not constitute the

tort of malicious prosecution. Id. The court rejected the defendants’ argument. Its holding stated: “We conclude an attorney

may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause.” Id. at 803. As in Swat-Fame,

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1839
knowledge of the lack of probable cause (in the court’s phrase

“discovery” of this lack) supplies the malice that supports the

tort. 

The second division is on whether knowing lack of probable cause may constitute proof of malice. Stressing the objective character of probable cause, Judge Paez’s opinion

suggests that absence of probable cause is not relevant to malice. But when a suit is brought without probable cause and the

allegator knows that he has no probable cause, a window is

opened to the mind of the allegator. California law clearly

states that although lack of probable cause alone does not support an inference of malice, “malice may still be inferred

when a party knowingly brings an action without probable

cause.” Swat-Fame, 101 Cal. App. 4th at 634 (citation omitted) (italics in original). Knowing that he has no basis for

what he alleges, the allegator manifests malice in the hateful

acts he imagines and attributes to the enemy he is pursuing.

In discussing Kenner’s malice in charging Tucker with

abuse of process, Judge Paez observes: a “fact-finder could

reasonably infer from Kenner’s drafting of the complaint

[charging Tucker with abuse of process] that he did not

believe the claim was valid when filed, or that the claim was

instituted for an improper purpose.” I agree with this reasoning, concur in Judge Paez’s conclusion as to the vitality of

Tucker’s claim for malicious prosecution in Kenner’s charge

of abuse of process and wonder why the same rule does not

apply to the other claims advanced by the defendants where

inferably they know they had no probable cause. I do not

understand how this court, years after the original litigation,

is capable of determining the state of mind of the defendants

here. That is a question of fact. As a question of fact it is for

a jury to decide. 

In both our cases, an experienced fighter for civil rights,

acting to defend her community, was charged with extortion,

with seeking to enrich herself, and exploiting her own organi1840 ESTATE OF TUCKER v. INTERSCOPE RECORDS
zation for her profit. Further, in the case brought by Kenner

she was accused of committing major federal crimes nonexistent in fact and so vaguely alleged as to show on the face of

the complaint that the lawyer had conjured them up or simply

filled in a blank form. The court is in no position to conclude

that the lawyers and their clients believed that these charges

were true, rather than unscrupulous inventions. Indeed almost

anyone would doubt that sophisticated lawyers could have

known anything except that the charges were false. In any

event, it is not for us now to decide this question, but to allow

a jury to determine whether the lawsuits against Tucker were

brought without probable cause and with knowledge of the

absence of probable cause and therefore with malice. A court

of the United States presented with a record as the one before

us should not walk on by.

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1841