Filed 9/30/13 Tulare Sag, Inc. v. Keller, Fishback & Jackson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

TULARE SAG, INC.,

Plaintiff and Respondent,

v.

KELLER, FISHBACK & JACKSON, LLP et al.,

Defendants and Appellants.

F064726

(Super. Ct. No. VCU244256)

OPINION

APPEAL from an order of the Superior Court of Tulare County. Melinda M. 

Reed, Judge.

McCormick, Barstow, Sheppard, Wayte & Carruth, Marshall C. Whitney, 

Todd W. Baxter and Scott M. Reddie for Defendants and Appellants.

Law Offices of Michael J. Lampe, Michael J. Lampe and Michael P. Smith for 

Plaintiff and Respondent.

-ooOooAppellants, Keller, Fishback and Jackson, LLP, Stephen M. Fishback, Diran H. 

Tashjian, and J. Bruce Jackson (Keller Fishback), challenge the trial court‟s denial of 
2.

their motion to strike the malicious prosecution action filed by respondent, Tulare SAG, 

Inc., doing business as Lampe Dodge-Chrysler-Jeep (Lampe Dodge), as a strategic

lawsuit against public participation (SLAPP) under Code of Civil Procedure1section 

425.16. According to Keller Fishback, Lampe Dodge did not meet its burden of 

establishing a probability of prevailing on its claim. 

Lampe Dodge‟s malicious prosecution claim arose out of a wrongful death action 

prosecuted by Keller Fishback on behalf of the heir of a decedent who died as a result of 

asbestos exposure. The asbestos complaint alleged that the decedent was improperly 

exposed to asbestos while working as an automobile mechanic and that Lampe Dodge 

was directly liable as a seller of asbestos containing automobile parts. On the day before 

trial, Keller Fishback stipulated there was no evidence that Lampe Dodge was directly 

liable and moved to amend the complaint to state a theory of successor liability. The trial 

court denied the motion to amend and dismissed the complaint. Thereafter, Lampe 

Dodge filed the underlying complaint for malicious prosecution.

Keller Fishback contends Lampe Dodge did not establish the elements of a 

malicious prosecution claim because: the asbestos action was not terminated on the 

merits; Keller Fishback had reasonable cause to continue pursuing the asbestos action; 

and Keller Fishback did not act with malice. Contrary to Keller Fishback‟s position, 

Lampe Dodge established that its claim has at least minimal merit. Therefore, the order 

denying the motion to strike will be affirmed.

BACKGROUND

In November 2007, Joann Hardeman, individually and as successor-in-interest to 

the Estate of Leonard Lee Hardeman, filed a wrongful death action against numerous 

 

1 All further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
3.

entities alleging that between 1954 and 1997, Leonard Hardeman was improperly 

exposed to asbestos and that this exposure led to his death. Keller Fishback did not 

prepare this complaint. Rather, Keller Fishback substituted into the action as attorney of 

record in April 2008.

The complaint named “Lampe Chrysler-Dodge fka Brian Ross Chrysler-Dodge” 

as one of the defendants in 15 separate causes of action. These causes of action included 

damage claims for direct sales, negligence, strict liability, failure to warn, breach of 

warranties, fraud, civil conspiracy, enterprise liability, loss of consortium and wrongful 

death. The alleged liability was based on Leonard Hardeman having purchased 

automotive parts from Brian Ross Dodge-Chrysler in the 1990‟s. 

However, in 2000, Brian Ross Dodge-Chrysler was sold to Don Groppetti and 

became Tulare Chrysler Dodge Jeep. Then, in 2005, through an “Agreement for the 

Purchase and Sale of Assets” (Agreement), Lampe Dodge purchased Tulare Chrysler 

Dodge Jeep‟s assets from Groppetti. 

The assets purchased by Lampe Dodge included parts and accessories, fixed 

assets, new vehicles, and the dealership‟s good will and trade name. The parties also 

agreed that the “transfer, purchase, or assumption whatsoever of any asset or liability 

other than those specifically enumerated” was not contemplated. It was further agreed 

that Groppetti “shall retain all assets and liabilities other than those enumerated” in the 

agreement and that Groppetti “shall continue to be liable for and shall indemnify, defend 

and hold harmless [Lampe Dodge] from any and all of [Groppetti‟s] obligations and 

liabilities other than those which [Lampe Dodge] has agreed herein to assume.” 

In January 2009, counsel for Lampe Dodge requested that Keller Fishback dismiss 

Lampe Dodge from the complaint. Keller Fishback responded on January 27 that they 

needed to conduct discovery before deciding whether dismissal was warranted. On 

January 28, counsel for Lampe Dodge replied. Counsel explained that Lampe Dodge did 
4.

not exist at the time of the asbestos exposure and that it was not liable as a successor in 

interest because it acquired the dealership through an asset purchase. Lampe Dodge also 

stated it might be willing to waive costs and waive its malicious prosecution claim if 

Keller Fishback responded with an offer to dismiss. Keller Fishback responded that they 

could not rely on counsel‟s bare assertions to evaluate Lampe Dodge‟s liability and 

requested that Lampe Dodge produce the relevant documents. 

When Keller Fishback had not received the requested documents by October 21, 

2009, they served formal discovery on Lampe Dodge. By letter dated October 22, 2009, 

counsel with Keller Fishback explained that they needed to evaluate admissible evidence 

establishing that Lampe Dodge had not assumed any liabilities of Brian Ross Dodge “or 

other relevant entities, especially in light of the fact that [Lampe Dodge‟s] business 

operations continue at the same location in which former Dodge-Chrysler-Jeep 

dealerships have been located, and from which asbestos-containing automotive parts 

were purchased.” 

Nevertheless, during a telephone conversation with counsel for Lampe Dodge on 

October 29, 2009, Keller Fishback offered to dismiss Lampe Dodge in exchange for a 

waiver of costs. Counsel with Keller Fishback explained that, although the plaintiff had 

potential theories of recovery against Lampe Dodge under a successor in interest and/or 

product line theory, a cost benefit analysis indicated it would make the most economic 

sense to dismiss Lampe Dodge. Lampe Dodge rejected this offer. 

On January 11, 2010, counsel for Lampe Dodge provided Keller Fishback with a 

copy of the Agreement. However, the dollar amounts were redacted and the referenced 

exhibits were not provided. Because the copy of the Agreement provided by Lampe 

Dodge was incomplete, Keller Fishback felt they could not determine whether the 

Agreement supported Lampe Dodge‟s position. Accordingly, Keller Fishback continued 

with discovery.
5.

On January 29, 2010, counsel for Lampe Dodge filed a motion to impose 

monetary sanctions against Keller Fishback and the plaintiff under section 128.7 based on 

their refusal to dismiss Lampe Dodge. At the March 9, 2010, hearing on this motion, the 

trial court observed that the paragraph in the Agreement stating that Lampe Dodge did 

not assume any liabilities that were not specifically enumerated “shows that [Lampe 

Dodge] couldn‟t possibly have any liability here.” Regarding the missing exhibits, the 

court noted it was “not sure anything in those exhibits could possibly be pertinent ....” 

Nevertheless, the trial court denied the motion without prejudice on the grounds that the 

Agreement was not given to the plaintiff until January 11 and the attachments to the 

Agreement were missing. The court then suggested that the attachments be provided to 

Keller Fishback. Thereafter, counsel for Lampe Dodge learned that the exhibits 

referenced in the Agreement had never been prepared.

On January 7, 2011, Lampe Dodge moved for summary judgment. The trial court 

denied this motion because the Agreement was not authenticated. The court also found 

that Lampe Dodge had not met its initial burden on the dates of exposure at the 

dealership. 

On August 23, 2011, the day before trial, Keller Fishback stated that they would 

not be offering any evidence as to direct liability of Lampe Dodge. Keller Fishback 

explained that “the only liability that is claimed as to the defendant Lampe Dodge is by 

way of the contention that they are successor of interest.” However, the complaint did 

not allege successor liability against Lampe Dodge.

On August 24, 2011, the first day of trial, Keller Fishback moved to amend the 

complaint to conform to proof in order to present evidence on successor in interest 

liability claims. Keller Fishback explained that it wanted to proceed on the theory that 

Lampe Dodge impliedly agreed to assume Brian Ross Dodge-Chrysler‟s liability. The 

trial court denied the motion and dismissed the action.
6.

Thereafter, Lampe Dodge filed the underlying complaint for malicious prosecution 

against Keller Fishback. Keller Fishback filed a motion to dismiss the complaint as a 

SLAPP. Lampe Dodge conceded that the malicious prosecution action was subject to the 

anti-SLAPP law. The court then concluded that Lampe Dodge had met its burden of 

showing a probability of prevailing on its claim and denied the motion.

DISCUSSION

1. The anti-SLAPP statute.

Section 425.16 was enacted in 1992 to provide a procedure for expeditiously 

resolving “nonmeritorious litigation meant to chill the valid exercise of the constitutional 

rights of freedom of speech and petition in connection with a public issue.” (Sipple v. 

Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It is California‟s 

response to meritless lawsuits brought to harass those who have exercised these rights. 

(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644, disapproved on 

another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 

68.) This type of suit, referred to under the acronym SLAPP, or strategic lawsuits against 

public participation, is generally brought to obtain an economic advantage over the 

defendant, not to vindicate a legally cognizable right of the plaintiff. (Kajima 

Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 

927.) 

When served with a SLAPP suit, the defendant may immediately move to strike 

the complaint under section 425.16. To determine whether this motion should be 

granted, the trial court must engage in a two-step process. (City of Cotati v. Cashman 

(2002) 29 Cal.4th 69, 76.) 

The court first decides “whether the defendant has made a threshold showing that 

the challenged cause of action is one „arising from‟ protected activity.” (City of Cotati v. 

Cashman, supra, 29 Cal.4th at p. 76.) The moving defendant must demonstrate that the 
7.

act or acts of which the plaintiff complains were taken “in furtherance of the 

[defendant‟s] right of petition or free speech under the United States Constitution or the 

California Constitution in connection with a public issue ....” (§ 425.16, subd. (b)(1); 

Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the court 

concludes that such a showing has been made, it must then determine whether the 

plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten 

(2002) 29 Cal.4th 82, 88.) 

To establish the requisite probability of prevailing, the plaintiff need only have 

“„“stated and substantiated a legally sufficient claim.”‟” (Navellier v. Sletten, supra, 29 

Cal.4th at p. 88.) “„Put another way, the plaintiff “must demonstrate that the complaint is 

both legally sufficient and supported by a sufficient prima facie showing of facts to 

sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”‟” (Id. 

at pp. 88-89.) The plaintiff need only establish that his or her claim has minimal merit to 

avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39 

Cal.4th 260, 291 (Soukup).) The court neither weighs credibility nor evaluates the weight 

of the evidence. Instead, the court accepts as true all evidence favorable to the plaintiff 

and assesses the defendant‟s evidence only to determine if it defeats the plaintiff‟s 

submission as a matter of law. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 

151 Cal.App.4th 688, 699-700.) Nevertheless, a plaintiff cannot simply rely on his or her 

pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible 

evidence. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-

614.) 

The questions of whether the action is a SLAPP suit and whether the plaintiff has 

shown a probability of prevailing are reviewed independently on appeal. 

(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) 
8.

Here, the parties do not dispute that the malicious prosecution action arose from a 

protected activity. Thus, this appeal turns on whether Lampe Dodge presented evidence 

that, if believed by the trier of fact, is sufficient to support a judgment in its favor. 

2. Malicious prosecution.

To prevail on a malicious prosecution claim, the plaintiff must show that the prior 

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

legal termination favorable to the plaintiff; (2) was brought or continued without probable 

cause; and (3) was initiated with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965, 

970 (Zamos).) Keller Fishback asserts that Lampe Dodge did not demonstrate a 

probability of prevailing on any of these elements.

a. Lampe Dodge demonstrated that it achieved a favorable termination.

To determine whether the malicious prosecution plaintiff received a favorable 

termination, the court considers the judgment as a whole in the prior action. (Casa 

Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341 (Casa Herrera).) However, victory 

following a trial on the merits is not required. Rather, the termination simply must reflect 

the merits of the action and indicate that the plaintiff is innocent of the alleged 

misconduct. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 741.) 

Where, as here, a termination is by dismissal, it is favorable when it reflects the 

opinion of either the trial court or the prosecuting party that the action lacked merit or if 

pursued would result in a decision in favor of the defendant. (Contemporary Services 

Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1056.) Thus, the reasons for the 

dismissal must be examined. For example, a voluntary dismissal may be an implicit 

concession that the dismissing party cannot maintain the action. (JSJ Limited 

Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524.) However, a technical or 

procedural termination, reflecting on neither innocence of nor responsibility for the 

alleged misconduct, is not favorable for purposes of a malicious prosecution claim. 
9.

(Casa Herrera, supra, 32 Cal.4th at pp. 341-342.) Examples of technical or procedural 

dismissals include dismissals on statute of limitations grounds, pursuant to a settlement, 

or based on laches. (Ibid.) 

Keller Fishback argues the dismissal of its complaint was procedural. According 

to Keller Fishback, Lampe Dodge did not achieve a favorable termination on the merits 

because the dismissal was based on the trial court‟s refusal to permit Keller Fishback to 

amend its complaint to state a claim based on successor liability on the first day of trial. 

The trial court concluded Keller Fishback‟s motion to amend the complaint was untimely 

and prejudicial to Lampe Dodge. 

However, Keller Fishback had been prosecuting the underlying action against 

Lampe Dodge for approximately 3 years and 4 months. The day before trial, Keller 

Fishback informed the court that they would be proceeding on only two of the 15 causes 

of action against Lampe Dodge. Those two remaining causes of action were for 

negligence and strict products liability. The court commented that Keller Fishback would 

be dismissing the other 13 causes of action with prejudice the next day at the beginning 

of trial. The complaint did not state a cause of action against Lampe Dodge based on 

successor liability.

The day of trial, Keller Fishback conceded that they had no evidence of direct 

liability against Lampe Dodge. Accordingly, the trial court dismissed the complaint. 

Thus, the entire action was terminated in Lampe Dodge‟s favor. This dismissal was not 

procedural but, rather, reflected the opinion of both Keller Fishback and the court that the 

action as it stood lacked merit. Keller Fishback‟s argument that their successor liability 

claim would have been tenable goes to the issue of probable cause, not whether the prior 

action was terminated favorably. (Crowley v. Katleman (1994) 8 Cal.4th 666, 686.) 
10.

In sum, the judgment was in Lampe Dodge‟s favor on the merits and reflects that 

Lampe Dodge was innocent of the alleged misconduct. Thus, Lampe Dodge has met the 

favorable termination requirement.

b. Lampe Dodge established a prima facie showing that Keller Fishback 

lacked probable cause to prosecute the asbestos action against it.

In a malicious prosecution case, the existence or nonexistence of probable cause is 

a legal question to be resolved by the court. (Wilson v. Parker, Covert & Chidester 

(2002) 28 Cal.4th 811, 817.) This determination is made objectively, i.e., without 

reference to whether the attorney bringing the prior action believed the case was tenable. 

(Ibid.) The standard of probable cause to bring a civil suit is equivalent to that for 

determining the frivolousness of an appeal. Accordingly, “probable cause exists if „any 

reasonable attorney would have thought the claim tenable.‟” (Ibid.) Malicious 

prosecution also includes “continuing to prosecute a lawsuit discovered to lack probable 

cause.” (Zamos, supra, 32 Cal.4th at p. 973.) 

In analyzing probable cause in a malicious prosecution context, the court must 

consider both the factual circumstances established by the evidence and the legal theory 

upon which relief is sought. (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 

Cal.App.4th 1385, 1402 (Sycamore Ridge).) Litigants will lack probable cause for their 

action either if they rely upon facts that they have no reasonable cause to believe to be 

true, or if they seek recovery upon a legal theory that is untenable under the facts known 

to them. (Ibid.) Thus, to make a prima facie case of a lack of probable cause in response 

to the anti-SLAPP motion, Lampe Dodge must show no reasonable attorney would have 

thought the asbestos related action against Lampe Dodge was tenable in light of the facts 

known to Keller Fishback at the time Keller Fishback began prosecuting the case or that 

Keller Fishback continued pursuing the lawsuit after they discovered facts that would 
11.

lead a reasonable attorney to conclude the action was not tenable. (Mendoza v. 

Wichmann (2011) 194 Cal.App.4th 1430, 1449.) 

Keller Fishback argues they had probable cause to pursue the asbestos action 

based on a successor in interest theory. According to Keller Fishback, it was reasonable 

for them to conclude that Lampe Dodge impliedly assumed the liabilities of Brian Ross 

Dodge-Chrysler for injuries related to the sale of asbestos containing products. Keller

Fishback further contends that a product line theory of successor liability under Ray v. 

Alad Corp. (1977) 19 Cal.3d 22 (Ray) and Kaminski v. Western MacArthur Co. (1985) 

175 Cal.App.3d 445 (Kaminski) was legally tenable. 

The facts known to Keller Fishback were that: the decedent purchased the 

allegedly defective automobile parts from Brian Ross Dodge-Chrysler; in 2000, Brian 

Ross Dodge-Chrysler was sold to Groppetti and became Tulare Chrysler Dodge Jeep; in 

2005, Lampe Dodge purchased Tulare Chrysler Dodge Jeep‟s assets from Groppetti; the 

agreement between Groppetti and Lampe Dodge provided that Groppetti “shall retain all 

assets and liabilities other than those enumerated” in the agreement and that Groppetti 

“shall continue to be liable for and shall indemnify, defend and hold harmless [Lampe 

Dodge] from any and all of [Groppetti‟s] obligations and liabilities other than those 

which [Lampe Dodge] has agreed herein to assume”; and the agreement between Lampe 

Dodge and Groppetti did not specifically mention, and Lampe Dodge did not agree to 

assume, liabilities related to the sale of asbestos containing products. 

In general, when a corporation purchases the principal assets of another 

corporation, the purchaser does not assume the seller‟s liabilities unless “(1) there is an 

express or implied agreement of assumption, (2) the transaction amounts to a 

consolidation or merger of the two corporations, (3) the purchasing corporation is a mere 

continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent 

purpose of escaping liability for the seller‟s debts.” (Ray, supra, 19 Cal.3d at p. 28.) In 
12.

Ray, the court announced an exception to these traditional rules in the context of 

imposing strict tort liability on a successor manufacturer. The court found that imposing 

strict liability is justified where (1) the plaintiff‟s remedies against the original 

manufacturer are virtually destroyed by the successor‟s acquisition of the business, (2) 

the successor has the ability to assume the original manufacturer‟s risk-spreading role, 

and (3) it is fair to require the successor to assume responsibility for defective products 

that were a burden necessarily attached to the original manufacturer‟s good will that the 

successor is enjoying in the continued operation of the business. (Ray, supra, 19 Cal.3d 

at p. 31.) This theory has been referred to by some subsequent courts as the “„product 

line theory‟ or the „product line continuation theory.‟” (Phillips v. Cooper Laboratories 

(1989) 215 Cal.App.3d 1648, 1654 (Phillips).) 

In Kaminski, the court imposed successor liability under Ray on a distributor of 

defective products. There, the predecessor corporation was completely taken over by the 

successor. The successor assumed the predecessor‟s contracts, continued to supply the 

same products and services, employed the same personnel, and used the predecessor‟s 

customer lists in conducting its new business. When it was formed, the successor 

corporation sent a letter to the predecessor‟s customers “asking if it may „continue to 

serve‟ them, stressing that the new company had „the same experienced personnel‟ and 

offered „the same products, engineering and contracting services.‟” (Kaminski, supra, 

175 Cal.App.3d at p. 453.) The court concluded that, given the policies underlying strict 

liability, “the „stream of commerce‟ approach to liability should extend to successor 

entities. When a distributor or retailer acquires a corporation and takes advantage of its 

goodwill and other corporate assets and facilities to inject the predecessor‟s product line 

into the stream of commerce, it continues „the overall producing and marketing enterprise 

that should bear the cost of injuries resulting from defective products.‟” (Id. at p. 456.) 
13.

The successor does not have to “cause” the destruction of the plaintiff‟s remedies 

before it will be held liable. A causal connection between the successor‟s acquisition and 

the unavailability of the predecessor as a potential defendant is all that is required. 

(Stewart v. Telex Communications, Inc. (1991) 1 Cal.App.4th 190, 198-199.) “The 

successor need only have „played some role in curtailing or destroying the [plaintiff‟s] 

remedies.‟” (Kaminski, supra, 175 Cal.App.3d at p. 458.) Nevertheless, successor 

liability has generally been denied in situations showing no contributory cause on the part 

of the successor in the predecessor‟s demise. (Ibid.) Moreover, in order to impose 

liability upon a successor corporation, all three of the Ray prongs must be met. (Phillips, 

supra, 215 Cal.App.3d at p. 1657.)

Here, based on the facts submitted by Lampe Dodge, the first element under Ray, 

i.e., the virtual destruction of the plaintiff‟s remedies against Brian Ross Dodge-Chrysler 

caused by Lampe Dodge‟s acquisition, is missing. It was Groppetti who purchased the 

Brian Ross Dodge-Chrysler assets, not Lampe Dodge. Thus, Lampe Dodge did not 

contribute to Brian Ross Dodge-Chrysler‟s demise. 

Keller Fishback also could not proceed with the asbestos action on the theory that 

Lampe Dodge impliedly assumed liability for asbestos related injuries. The Agreement 

under which Lampe Dodge acquired the business assets expressly excluded the transfer 

of liabilities. 

Keller Fishback additionally argues that the trial court‟s denial of Lampe Dodge‟s 

motion for summary judgment establishes that the successor liability claim was arguably 

tenable. While denial of a defendant‟s summary judgment motion may provide evidence 

that a suit does not totally lack merit, a denial on procedural or technical grounds, rather 

than for the existence of triable issues of material fact, says nothing regarding the 

potential merit of the action and thus does not establish probable cause for its initiation. 

(Wilson, supra, 28 Cal.4th at p. 823.) 
14.

Here, Lampe Dodge‟s summary judgment motion was denied because the 

Agreement was not authenticated and Lampe Dodge had not met its initial burden on the 

dates of exposure at the dealership, not because there were triable issues of material fact. 

Thus, the denial of Lampe Dodge‟s summary judgment motion does not demonstrate that 

Keller Fishback had probable cause to prosecute the asbestos action.

Therefore, viewing the evidence in the light most favorable to Lampe Dodge, 

Lampe Dodge‟s claim that Keller Fishback lacked probable cause to continue to 

prosecute the asbestos action has at least minimal merit. 

c. Lampe Dodge made a prima facie showing that Keller Fishback acted 

with malice.

The malice element goes to the defendant‟s subjective intent in initiating the prior 

action or continuing to prosecute the prior action after becoming aware that it lacks 

probable cause. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407; Daniels v. Robbins 

(2010) 182 Cal.App.4th 204, 226 (Daniels).) “For purposes of a malicious prosecution 

claim, malice „is not limited to actual hostility or ill will toward the plaintiff. Rather, 

malice is present when proceedings are instituted primarily for an improper purpose.‟” 

(Sycamore Ridge, supra, 157 Cal.App.4th at p. 1407.) Liability can attach based on 

attitudes that range from “„“open hostility to indifference.”‟” (Cole v. Patricia A. Meyer 

& Associates, APC (2012) 206 Cal.App.4th 1095, 1113-1114 (Cole).) 

Malice may be inferred from circumstantial evidence, such as the defendants‟ lack

of probable cause, supplemented with evidence of an improper purpose. (Cole, supra, 

206 Cal.App.4th at p. 1114.) Hallmarks of an improper purpose include evidence that the 

plaintiff does not believe his claim may be held valid and that the proceeding was 

initiated for the purpose of forcing a settlement unrelated to the merits of the claim. 

(Ibid.) Further, although lack of probable cause standing alone does not support an 

inference of malice, malice may still be inferred when a party either knowingly brings an 
15.

action without probable cause or continues to prosecute an action after becoming aware 

that the action lacks probable cause. (Daniels, supra, 182 Cal.App.4th at p. 226.)

Here, the individual Keller Fishback attorneys filed declarations stating that they 

harbored no hostility or ill will toward Lampe Dodge, that they believed their actions 

were reasonable, appropriate and within the applicable standard of care, and that they at 

all times believed their client had a viable and legitimate claim for damages against 

Lampe Dodge. However, parties rarely admit to an improper motive. (Daniels, supra, 

182 Cal.App.4th at p. 225.) Accordingly, we must determine if there is circumstantial 

evidence, and inferences that can be drawn from that evidence, of malice. (Ibid.) 

On the first day of trial, Keller Fishback conceded that they had no evidence of 

direct liability against Lampe Dodge but, rather, wanted to proceed on a successor in 

interest theory. But, over 17 months earlier, the trial court questioned the viability of 

such a successor liability theory. The court noted that, based on the Agreement between 

Lampe Dodge and Groppetti, Lampe Dodge “couldn‟t possibly have any liability here.” 

Keller Fishback responded that they had not seen the attachments to the Agreement and 

therefore could not yet make that determination. The court then observed that the 

missing exhibits, i.e., lists describing the parts and accessories inventory, work in 

progress sublet repairs, the fixed assets, the vehicle deposits, and the lease agreement, 

had nothing to do with Lampe Dodge‟s liability to Keller Fishback‟s clients. The court 

questioned whether anything in those documents “could possibly be pertinent.” 

Thereafter, counsel for Lampe Dodge discovered that those exhibits had never been 

prepared. Nevertheless, despite the trial court‟s input, Keller Fishback did not dismiss 

Lampe Dodge from the case. 

From this evidence it can be inferred that Keller Fishback continued to prosecute 

the asbestos action after becoming aware that the action lacked probable cause. Thus, 

viewing the evidence in the light most favorable to Lampe Dodge, Lampe Dodge‟s claim 
16.

that Keller Fishback acted with malice has at least minimal merit. (Soukup, supra, 39 

Cal.4th at p. 291.)

In sum, in opposing the anti-SLAPP motion, Lampe Dodge met its burden of 

showing that its malicious prosecution action had sufficient merit to survive the motion. 

By our conclusion, we express no opinion on the ultimate merit of Lampe Dodge‟s 

claim.2

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondent.

_____________________

LEVY, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

KANE, J.

 

2 Respondent‟s motion for judicial notice is denied.