Filed 3/19/14 Lilien v. Markle CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

ALLISON LOVELL LILIEN, Plaintiff and Appellant,

v. JOHN R. MARKLE, Defendant and Respondent. D063397

(Super. Ct. No. 37-2011-00059139- CU-NP-NC)

APPEAL from a judgment of the Superi or Court of San Diego County, Robert Dahlquist, Judge. Affirmed.

Bruce Cornblum for Plaintiff and Appellant. Meador & Engle and Alan Engl e for Defendant and Respondent. Plaintiff and appellant Allison Lovell L ilien (Allison) appeals the order granting the anti-SLAPP motion brought under Code of Civil Procedure section 425.16 1 by

1 All statutory references are to the Co de of Civil Procedure unless indicated otherwise. Section 425.16 is commonly re ferred to as the anti-SLAPP statute. ( Siam v. Kizilbash (2005) 130 Cal.App.4th 15 63, 1568.) SLAPP is an acronym for "'strategic2 defendant and respondent John R. Markle after she sued Markle for malicious prosecution in connection w ith a $100,000 loan Markle made to Allison's husband, Duane Lilien (Duane), when Allison and Duane were marri ed. Allison contends she made a prima facie showing of facts to sust ain a favorable judgment, and the trial court thus erred in granting Markle's anti-SLAPP motion. We disagree and affirm the order granting the anti-SLAPP motion.
FACTUAL AND PROCEDUR AL BACKGROUND
A. Overview Markle in December 2005 loaned his long-time frie nd Duane $100,000 (loan). 2 Allison and Duane married in 1989 and separa ted in July 2008. The loan funds were deposited in a joint account held by Allison and Duane and were used to develop a
lawsuit against public participation.'" ( Jarrow Formulas , Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
2 Allison contends in her papers filed in this court that there allegedly "exists no evidence in the record" showing the transfer of the $100,000 from Markle to Duane was a loan, as opposed to an "investment." (Ita lics added.) This contention boarders on the frivolous. Indeed, Allison in her operative co mplaint repeatedly refe rred to the $100,000 payment by Markle to Duane in December 2005 as a "loan" and never once referred to the payment as some sort of "investment." (See Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746 [noting that "[j]udici al admissions may be made in a pleading" and noting that "[f]acts establis hed by pleadings as judicial admissions '"are conclusive concessions of the truth of those matters, ar e effectively removed as issues from the litigation, and may not be contradicted, by the party w hose pleadings are used against him or her"'"].) In addition, Allison also re ferred to this payment as a "loan" in her declaration under penalty of perjury to set as ide the default judgment . Duane also stated under penalty of the perjury that the $100,000 was a loan, as did Markle. And, of course, Duane prepared the original note and the new note, the latter which he signed in connection with the settlement of the underl ying action, verifying the $100,000 payment was a loan. Finally, as discussed post , the issue of whether th e $100,000 payment was a loan or an investment is in any event a red-herring, given that payment constituted a "debt" incurred by Duane while he was married to Allison.3 property located in Borrego Springs, California, "for which Allison [was] listed as a joint tenant [(real property)]." Duane prepared a written promissory note setting out the terms of the loan (original note). The terms of the original no te suggest it was to be signed by Duane and Allison and was to be secured by the real pr operty. It appears neither Duane nor Allison signed the note. In or around July 2008, Markle learned that Allison had filed for divorce from Duane. In August 2009, Ma rkle, Duane and Allison signed a document titled "Letter of Intent -- Loan Restructuring and related Prop erty Purchase" (LOI). Paragraph 16 of the LOI provided that as a "condition to consu mmation of the [proposed real estate purchase and sale agreement for the property] cont emplated by this LOI[,] and further as a condition the closing of any escrow associat ed therewith, the Buyer [i.e., Markle] and Seller Duane Lilien only sha ll enter into, and concurrently close escrow for, a restructuring of the present indebtedness [i.e ., ostensibly the loan ] owing by Seller to Buyer" on certain terms and co nditions provided in the LOI. The LOI defined the term
"Seller" to include Duane and Allison. The proposed real estate purchase and sale agreement was never consummated, howeve r. As such, the LOI by its own terms expired.
B. The Underlying Action Markle in December 2009 su ed Allison and Duane. Mark le asserted causes of action against Allison and Duan e for breach of contract and common counts and sought an order compelling them "to make, execute and deliver a new promissory note to plaintiff . . . as a replacement fo r the destroyed original note" ( Markle v. Lilien (Super.4 Ct. San Diego County, 2011 , No. 37-2009-00062733-CU-CL-NC); the underlying action). Markle in his complaint alleged that Allison and Duane in December 2005 "executed and delivered" to him the original note in the amount of $100,000, the "terms
and conditions" of which were shown in the uns igned note attached as exhibit 1 to the complaint. Markle further alleged that the or iginal note "was lost or misplaced, possibly as a result of a fire which destroyed plaintif f's home, and is no longer in existence" and that Markle was prepared "to give an indemnity bond to de fendants pursuant to Section
3415 of the Civil Code with sureties approved by the court at the court's direction to indemnify against loss, damage , expense, or other liability which may be suffered by defendants by reason of the issuance of the duplicate promissory note." Markle sought the return of his $100,000 plus interest. Because Allison did not make an appearan ce in the underlying action and service of the summons and complaint was initially deemed satisfac tory, a default was entered against her in March 2010. In September 2010, Markle and Duane a ttended a civil collections mandatory
settlement conference and reached a settlement of the underlying action with respect to Duane only (settlement agre ement). Under the terms of the arms-length settlement agreement, Duane agreed to pay Markle $110,000, execut ed a new promissory note (new note) and agreed to make minimum monthly payments of $100 beginning in March 2011 for 30 months, at which time the outstanding ba lance would be due a nd payable in a final balloon payment. The settlement agreement also provided that any amoun ts Markle collected from
Allison would offset the amount Duane owed under the new no te and, by the same logic,5 that any payments made by Duane under th e new note would offset any amounts Allison would owe under any judgment. In addition, if Duane made all payments as provided under the settlement agreement, Markle agreed to "file a request for dismissal of [the underlying action] with prejudice in connec tion with the request for default judgment against Allison Lillien [ sic ]." As a result of the settlement agreement, Markle dismissed Duane without prejudice from the underlying action. Markle in early November 2010 filed an application for default judgment against
Allison. In connection with that application, Markle submitted a declaration under penalty of perjury stating that he had loaned $100,000 to "the defendants," as evidenced by a cashier's check dated December 14, 2005 , made payable to Duane in the amount of $100,000; that the original note had been los t; that, under the terms of the original note, Markle was entitled to seek secu rity for the note either on de fault or demand; that Markle did not seek security for the no te; and that Markle hereby "wai ves any right to security or to a security interest provided for by the [origi nal] [n]ote." Markle sought a judgment in the amount of $109,175.65 against Allison ba sed on the $100,000 loan—with interest accruing not from the date of the loan but from the date Markle f iled his complaint (December 2009) through November 15, 2010 at the daily rate of $27.39 (prejudgment interest at legal rate of 10 percent)—and costs. Judgment was entered against Allison in mid-November 2010 in the amount of $112, 480.65. However, at no time did Markle seek to execute on the judg ment against Allison. Allison in May 2011 first appeared in the underlying action and filed a motion to set aside the default judgment. Allison allege d she had not been personally served with the summons and complaint and thus lacked knowledge of the underlying action until late6 February 2011, when she learned from Duane in connec tion with a mandatory settlement conference in their divorce pro ceedings that judgment in th e underlying action had been entered against her. In her declaration in support of her mo tion brought pursuant to Code of Civil
Procedure section 473.5 to set aside the de fault judgment, Allison stated she "never" (emphasis in original omitted) signed the unsigned original note and she "knew nothing about this 'loan,' and as stated previously only found out about th e existence of this lawsuit during a mandatory settlement conferen ce" in late February 2011, where, she alleged, Duane "strategically waited until the end of a four (4) hour settlement conference to reveal this, knowing that Allison was kept in [t]he dark about th e existence of this
lawsuit from the outset." Allison in her declaration further alleged that she did not own the business where she was allegedly personally served; that she was never personally served and, instead, that she was "merely a treating physician" at the business; and that, in any event, she practiced medicine using her maiden name "Dr. Lovell" a nd perhaps that is why she never received the summons and complaint. The trial court in early September 2011 tentatively granted Allison's motion to set as ide Markle's default judgment, finding she made a sufficient showing that she did no t receive actual notice of the summons and complaint and that her lack of such notice was not the result of her avoiding service or inexcusable neglect. The day after the trial court issued its tentative ruling granti ng Allison's motion to set aside the default judgment, Markle di smissed Allison without prejudice from the underlying action. Markle in his declarati on in support of his anti-SLAPP motion stated7 under penalty of perjury that his decision to dismiss Allison "had nothing to do with the merits" of the underlying actio n; that he dismissed the un derlying action against Allison because of the settlement agr eement reached with Duane; th at the "case against Allison had dragged on for nearly two years and seemed no closer to resolution once the default had been set aside"; and that he "had alrea dy spent significantly more on legal fees than [he] had expected and belie ved, based on the ongoing di vorce proceeding, that Allison Lilien would vigor ously litigate the case even if doi ng so were not economically justified." Markle also stated the only reason he filed the underlying action against Allison was to have the loan repaid. Allison in response/retaliation sued Markle and Duane. In her original complaint, Allison asserted causes of action against Mark le for malicious pros ecution, based on his dismissal of the underlying action against he r, and for conspiracy to inflict emotional
distress. After the court sustained Markle's demurrer to the conspiracy cause of action, Allison in July 2012 filed th e 23-page operative complaint, asserting against Markle a single claim for malicious prosecution. 3 In her operative complaint, Allison genera lly alleged that Duane and Markle for the last 30 years have been "close personal a nd business friends"; that Markle has assisted Duane "financially over these 30 years"; that she and Duane separated in early July 2008;

3 As noted ante , Allison's operative complaint also asserted various causes of action against Duane—who is not a party in this ap peal—including for breach of fiduciary duty based on Allison's contention that she was involved in "'marital proceedings made in hell'" as a result of Duane's "frivolous an d fictitious claims" against her; Allison's attempts to "uncover the exis tence and extent of community property holdings" solely under Duane's control; and his attempts to saddle Allison with "numerous loans and debts not previously known" by Allis on that Duane contends must be paid out of "community equity in the community property of the par ties," including the loan made by Markle.8 that during her marriage with Duane he "experienced a history of failed business endeavors"; that she was "never involved" in Duane's business endeavors and that he, in any event, "kept his business dealings . . . aw ay from [her]"; that Du ane contends the loan made by Markle was and is a community debt; and that Markle unlawfully sued her after Markle and Duane "collu[d ed]" to use Markle's lawsuit as "leverage to force" her to repay the 2005 loan with income she earned after she and Duane had separated. Allison further alleged that Markle brough t the underlying action against her "for the sole purpose of forcing [her] to involunt arily give real property security" for the original promissory note "knowing [she] had no legal obligation" in connection with that note. She also alleged Markle knew the de fault judgment he obtained against her was a "sham," and he did not have "an honest suspicion or belie f" in his declaration in support of the application for default judgment th at Allison was personall y liable for repayment
of the loan. Allison alleged that if the underlying actio n had been successful, Markle not only would benefit from obtaining a personal judgment against her "but also would be performing an act of friendship for his clos e friend Defendant Duane by aiding Duane in forcing Allison to pay Duane's personal obligation owing to Ma rkle." Allison prayed for damages in excess of $100,00 0 and sought an award of punitive damage s of $500,000 against Markle. Markle in response filed an anti-SLAP P motion to strike Allison's malicious prosecution action. The trial court gr anted that motion, ruling as follows: "The sole cause of action asserted agai nst defendant Markle in the [operative] complaint is for mali cious prosecution. An action fo r malicious prosecution based on a9 party's or attorney's statements or writings in an earlier judicial proceeding is subject to being stricken as a SLAPP suit: '[B]y its terms, section 425.16 poten tially may apply to every malicious prosecution acti on, because every such acti on arises from an underlying lawsuit, or petition to the judicial branch.' Jarrow Forumlas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735; Dickens v. Provident Life & Acc. Ins. Co. (2004) 117 Cal.App.4th 705, 713. Malicious prosecutio n plaintiffs must be prepared to show at the ou tset a probability of prevailing—i.e., that the earlier suit wa s filed 'maliciously' and 'without probable cause.' This does not 'unduly burde n plaintiffs' access to court.' Jarrow Formulas, Inc. v.
LaMarche , supra , 31 Cal.4th at 740. "In order to show the probability of su ccess on her malicious prosecution claim, plaintiff must show a legally sufficient cl aim and that the clai m is supported by competent, admissi ble evidence. DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568. The 'probability of preva iling' is tested by the same standard governing a motion for summary ju dgment. That is, in opposing a SLAPP motion, it is the plaintiffs' burden to make a prima facie showing of facts that would support a judgment in the plaintiffs' favor. Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907. The court will consider the pleadings and evidentiary subm issions of both the plaintiff and the defendant, but the court does not weigh credib ility or comparative strength of the evidence; the court considers th e defendant's evidence only to determine if it defeats the plaintiff's showing as a matter of law. Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906. "A plaintiff in a malicious prosecution action 'must plea d and prove that the prior action (1) was commenced by or at the direction of the de fendant and was pursued to a10 legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was in itiated with malice [citations].' Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; see Cote v. Henderson (1990) 218 Cal.App.3d 796. Unlike the malice element, which is a factual question, the issue of whether there was an absence of probable cau se in bringing the prior case is a question of law to be determined by the court. Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018. "As to (1), Markle brought a prior action against the plaintiff and later dismissed that action following an order setting aside the default of the plaintiff. 'Voluntary dismissal is presumed to be a favorable termination on the me rits, unless otherwise proved to a jury. (Citations omitted[.]) This is because "[ a] dismissal for failure to prosecute . . . does reflect on the merits of the action [and in favor of the defendant]. . . .
The reflection arises from the natural assu mption that one does not simply abandon a
meritorious action once instituted."' Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App. 4th 1385, 1400.
"Markle testifies that he dismissed the prior action because 'he decided that his time and money could be spent on activities more rewarding th an litigation.' See Markle Decl., ¶ 11. However, there is no case that holds that financial considerations should be analyzed in determining whether a dismis sal of the underlying action constitutes a favorable determination. Thus, Markle's declar ation cannot establish, as a matter of law, that plaintiff would be unable to establis h the element of favorable termination. Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 457. "As to (2), the presence or absence of pr obable cause is view ed under an objective standard applied to the facts upon which the defendant acted in prosecuting the prior11 case. Sheldon Appel v. Albert & Oliker (1989) 47 Cal.3d 863, 878, 881. The test of determining probable cause is whether any re asonable attorney would have thought the
claim to be tenable. Id. at 886. "Hence, 'probable cause to bring an action does not de pend upon it being meritorious, as such, but upon it being arguably tenable , i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation.] Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely un likely that they will win. . . .[] [Citation.]' [Citations.] Probable cause is established by showing that the 'claim . . . is le gally sufficient and can be substantiated by competent evidence. . . . ' Paiva v. Nichols [, supra ,] 168 Cal.App.4th [at pp.] 1019-20. "The Court has considered both parties' arguments regarding whether Markle had probable cause to bring the underlying ac tion and concludes that the claim against Allison for recovery of the allege d loan is an arguably tenable claim. In particular, even assuming that the loan was ma de to Duane only and Markle never obtained a promise by Allison to re-pay the loan, Ma rkle's claims against Allison to recover under community property or agency principles from Allison is legally tenable. "As to (3), the Court is not persuaded th at plaintiff has presented admissible evidence establishing that the prior action wa s filed maliciously. To constitute malice there must be an improper motive or purpose. Masterson v. Pig'n Whistle Corp. , 161 Cal.App.2d 323, 338. 'Malice' is demonstrat ed by evidence which establishes bad faith,
or the absence of an honest and sincere belie f that the prosecution was justified by the
existent facts and circumstances. Singleton v. Singleton , 68 Cal.App.2d 681, 696; Grove12 v. Purity Stores, Ltd. , 153 Cal.App.2d 234, 241. Plain tiff's evidence does not establish a prima facie case of malice."
DISCUSSION
A. Guiding Principles of the Anti-SLAPP Statute Under section 425.16, subdivision (b)(1 ), a "cause of action against a person arising from any act of that person in furthe rance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be s ubject to a motion to strike, unl ess the court determines that the plaintiff has established that there is a probability that the plai ntiff will prevail on the
claim." In the instant case, the parties recognize that a malicious prosecution claim is subject to the anti-SLAPP statute. (See Jarrow Formulas , Inc. v. LaMarche , supra , 31 Cal.4th at pp. 736-741; Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 548-549.) As such, the burden then shifted to Allis on to show a likelihood of prevailing on that claim. (See § 425.16, subd. (b)(1).) To show the likelihood of prevailing on the merits, Allison "'must demonstrate that the complaint [was] both lega lly sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evid ence [she] submitted . . . [was] credited.' [Citations.]" (See Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) "'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." [Citation .] However, we neither "weigh credibility [nor] compare the weig ht of the evidence. Rather, [we] accept as true the evidence favorable to the plain tiff [citation] and evaluate the defendant's evidence only to13 determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citations.]" ( Nygard, Inc. v. Uusi–Kerttula (2008) 159 Cal.Ap p.4th 1027, 1036.) In opposing an anti-SLAPP motion, a plaint iff need only estab lish that the claim subject to section 425.16 has "minimal merit." ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 ( Soukup ); Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 13 97.) We independently revi ew the trial court's order granting a special motion to stri ke under section 425.16. ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.)
B. Probability of Prevailing on th e Malicious Prosecution Claim As noted by the trial cour t, to prove a malicious pr osecution claim Allison must show the underlying action "'(1 ) was commenced by or at th e direction of the defendant and was pursued to a legal termination in . . . plaintiff's[] favor [citations]; (2) was brought without probable caus e [citations]; and (3) was initia ted with malice [citations].' [Citation.]" ( Crowley v. Katleman (1994) 8 Cal.4th 6 66, 676; see also Soukup , supra , 39 Cal.4th at p. 292.)
The record shows the parties in this appeal do not dispute that Markle's dismissal without prejudice of the underlying action agai nst Allison was a termination in her favor. (See Sycamore Ridge Apartm ents LLC v. Naumann , supra , 157 Cal.App.4th at p. 1400 [noting that a voluntary dismi ssal, such as in th e instant case, "is presumed to be a favorable termination on the merits, unless otherwise proved to a jury"]; cf. Lackner v.
LaCroix (1979) 25 Cal.3d 747, 750-751 [observing that a dismissal (i.e., for failure to prosecute) "'reflect[s] on the me rits of the action'" in favor of the defendant because of14 "'the natural assumption that one does not simply abandon a meritorious action once instituted'"].)
1. Probable Cause "An action is deemed to have been purs ued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted. The court must 'determine whether, on the basis of the facts known to the defendant, th e institution of the prior action was legally tenable.' ( Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878 [( Sheldon )].) 'The resolution of that question of la w calls for the application of an objective standard to the facts on which the defendant acted. [Citation.]' ( Ibid .; italics omitted.) The test the court is to apply is whether 'any reasonable attorney would have thought the cl aim tenable . . . .' ( Id . at p. 886.) The tort of malicious prosecu tion also includes the act of 'continuing to prosecute a lawsuit discovered to lack probable cause.' ( Zamos v. Stroud (2004) 32 Cal.4th 958, 973.) In determining the probable cause issue, the same standard applies 'to
the continuation as to th e initiation of a suit.' ( Id . at p. 970.) "'In analyzing the issue of probable cause in a malicious prosecution context, the
trial court must consider both the factual circumstances established by the evidence and the legal theory upon which relief is sought. A litigant will lack probable cause for his [or her] action either if he [or she] relie s upon facts which he [or she] has no reasonable cause to believe to be true, or if he [or sh e] seeks recovery upon a legal theory which is untenable under the facts known to him [or her].' [Citation.] "In determining whether the prior action was legally tenable, i.e., whether the action was supported by probable cause, the cour t is to construe the allegations of the15 underlying complaint liberally, in a light most favorable to the malicious prosecution defendant. [Citation.]" ( Kleveland v. Siegel & Wolensky, LLP , supra , 215 Cal.App.4th at pp. 550-551.) Here, the record shows that Markle ma de the $100,000 lo an to Duane in December 2005; that, at the time, Allison and Duane were married and they separated in July 2008; that Duane prepared the original note setting forth the terms of the loan that included signature lines for A llison and him, as husband an d wife; that Duane obtained the loan to develop the real property in which Allison was a joint tenant; that the loan proceeds were deposited in a joint account held by Allison and Duane; that, although it appears neither Duane nor Allison signed the or iginal note, the loan was in fact made by Markle as evidenced by the check cashed by Duane in D ecember 2005; that, during their marriage, Duane allege dly had a history of failed business endeav ors and kept Allison in the dark about many such endeavors, to her financial detriment; and, perhaps most importantly, that when Mark le sued Allison and Duane in December 2009 for repayment of the loan proceeds, the law provided the community es tate is generally liable for the debt of either spouse. Indeed, Family Code section 910, subdivisi on (a) provides: "Except as otherwise expressly provided by statute, th e community estate is liable for a debt incurred by either spouse before or during marriage, regard less of which spouse has the management and control of the property and regardless of whet her one or both spouses are parties to the debt or to a judgment for the debt." "Thus, the liability of comm unity property is not limite d to debts incurred for the benefit of the community, but extends to de bts incurred by one spouse alone exclusively16 for his or her own personal benefit. [Citati ons.] Although a spouse may be required to reimburse the community for th e misuse of community assets [citations], the community
estate remains liable to third party creditors for any debt incurred as a result of such misuse of assets." ( Lezine v. Security Pacific Fin. Services, Inc. (1996) 14 Cal.4th 56, 64.) A "debt" within the meaning of the Family Code is an "obligation incurred by a married person before or during marriage, whet her based on contract, tort, or otherwise." (Fam. Code, § 902.) In the case of a contract , a "debt" is deemed "incurred" at the time the contract is made. (Fam. Code, § 903, s ubd. (a).) That performance of a contract may extend into the postseparation period of a marriage does not mean the contract was made after separation so as to avoid Family Code s ection 910, subdivision (a). (See, e.g., In re Marriage of Feldner (1995) 40 Cal.app.4th 617, 622 ( Feldner ).)
In Feldner , the obligor spouse, a contractor, en tered into a contract while married to act as a superintendent for the constr uction of a home for a third party. After separation, the obligor spouse refused to co mplete work on the contract and ultimately the third party sued the obligor spouse for breach of contrac t/implied warranty. The trial court found the third party lawsuit was a community obligation. The Feldner court agreed. ( Feldner , supra , 40 Cal.App.4th at p. 625.) In so doing, the court in Feldner construed Family Code se ction 903 and noted the
statute was "oblivious to the time of performance of a contract. The statute does not say that a contract debt is incurred when a contra ct is broken, or incurred when it is to be substantially performed, or anything like that. It says that a contract debt is 'incurred'
when the contract is 'made.' When read t ogether with section 910, subdivision (a)17 ['Except as otherwise expressly provided by statute, the commun ity estate is liable for a debt incurred by either spouse before or during marriage . . . .'] the effect of section 903 is to characterize contract debts as community wh en the contract is 'm ade' (as distinct from performed) during the marriage." ( Feldner , supra , 40 Cal.App.4th at p. 622.)
The Feldner court recognized that many contract s required extended periods of performance but, even in those cases, wh en performance continues after marital separation, the underlying character of the debt is unchanged: "The performance of a contract, however, is fundamentally differe nt from the problem of determining its community or separate character. Many contra cts, such as an installment debt, require extended periods of performance. The cla ssic solution to the problem created by a separation date during such an extended period is to a llow for reimbursement by the spouse who uses his or her postseparation earnings to pay a 'preexisting' community obligation. [Citations.]" ( Feldner , supra , 40 Cal.App.4th at p. 624, fn. omitted.) We independently c onclude Allison has not satisfi ed her minimal burden under step two of the anti-SLAPP statute of sh owing a probability of prevailing on her malicious prosecution action because we co nclude the underlying action (in which Markle sought repayment of the loan made to Duane during his marriage to Allison), when viewed in an objectiv e manner, was legally tenable as to Allison and the community's obligation to pay th at "debt." (See Fam. Code, §§ 902, 903, subd. (a) & 910, subd. (a); see also Sycamore Ridge Apartm ents LLC v. Naumann , supra , 157 Cal.App.4th at p. 1402 [noting an action is without probable cause "if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or18 while it was being prosecuted"].) 4 For this reason alone, we independently conclude the trial court properly granted Markle's anti-SLAPP motion. 5
2. Malice Assuming, for the sake of argument, th at Allison can establish a probability of prevailing on the lack of probable cause element of malicious prosecution, we
nonetheless conclude she cannot meet her minimal burden to show a probability of prevailing on the malice element. The malice element focuses on a defendant's subjective intent in initiating the prior action and is gene rally an issue to be determined by a jury. ( Sheldon , supra , 47 Cal.3d at p. 874; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.) To establish ma lice, Allison was requi red to show by a preponderance of the eviden ce that Markle brought the underlying action based on hostility or ill will or for anothe r improper purpose. (See Ross v. Kish (2006) 145 Cal.App.4th 188, 204; Padres L.P. v. Henderson (2003) 114 Cal.App. 4th 495, 522.) "Malice is usually proved by circumstantia l evidence. [Citation. ] Although a lack of probable cause, standing alone, does not support an inference of malice, malice may still be inferred when a party knowingly brin gs an action without probable cause. [Citation.]" ( Padres L.P. v. Henderson , supra , 114 Cal.App.4th at p. 522.) Whether

4 Our decision in the instant case is limited solely to the issue whether Allison met her burden to show a probab ility of prevailing on her mali cious prosecuti on action and, specifically, to establish the lack of probable cause element of this tort action. We thus are not deciding in this proceeding whether an d to what extent Allison and/or the community, if at all, are liable to pay the de bt on the loan as set forth in the new note executed by Duane.
5 In reaching our decision, we did not consider any of the evidence proffered by Markle in support of his anti-SLAPP motion to which Allison had unsuccessfully objected to in the trial court.19 malice exists presents a factual question, and its proof may be inferred from all the circumstances of the case. ( Sheldon , supra , 47 Cal.3d at p. 874.) Here, Allison has not proffered sufficient evidence for purpose s of the anti-SLAPP statute from which a reasonable person could infer an improper mo tive by Markle in asserting against her causes of action for bre ach of contract and common counts in the underlying action. First, we reject Allison's contention th at Markle brought the underlying action against her for the "sole purpose" of forcin g her to give involuntarily real property security on the note she did not sign. Instead , the record shows that in November 2010, before Allison filed her malicious prosecution action against Markle, he already had agreed (under penalty of perjury) to "waive[] a ny right to security or to a security interest provided for by the [original] note" in c onnection with the prove up of his default judgment against Allison. Second, that Markle alleged in the unde rlying action that the original note had been lost or misplaced, when it appears neith er Duane nor Allison ha d signed that note, also does not establish the requisite malice. There is no dispute on this record that
Markle made the loan to Duane, a married person, duri ng Duane's marriage to Allison. (See Fam. Code, §§ 902 & 903, subd. (a).) In addition, the record shows that Duane
reaffirmed the debt in the ne w note, after he and Markle signed the settlement agreement and that Markle agreed, in connection with that settlement, to dismiss Allison from the underlying action if and when Duane repaid the debt evid enced by the new note. What's more, the record shows that A llison, in August 20 09 and before the underlying action was filed, knew about the loan from Markle to Duane as generally20 referenced by the LOI that sought, among other things, to restructure the loan so that it could be repaid by Duane only in connection with the sa le of certain property. Finally, we conclude Allis on's contention that the underlying lawsuit was the
result of some sort of collu sion between Duane, on the one hand, and Markle, on the other, to saddle her with the entir e debt from the loan is wholly speculative, is contrary to the law in any event, and is not supported by admissible evidence in the record. Rather,
the record shows Markle sued on the note after the parties unsuccessfully sought in the LOI to restructure the debt. In addition, as noted above, Duane signed a new note reaffirming the debt and agreed to make all pa yments toward that de bt. The record also
shows that even after a defau lt judgment was entered against Allison, Markle did not seek
to execute on that judgment. For these reasons, we independently c onclude Allison also has not shown a probability of prevailing on the malice element of her ma licious prosecution action.
DISPOSITION The trial court's order granting Markle 's special motion to strike Allison's malicious prosecution claim is affirmed. Markle to recover his costs of appeal.

BENKE, Acting P. J.
WE CONCUR: AARON, J. IRION, J.