Filed 2/22/24; pub. order 3/7/24 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RYNOLD DWAYNE JACKSON,

Plaintiff and Appellant,

v.

MARIO LARA et al.,

Defendants and Respondents.

 D081549

 (Super. Ct. No. CIVDS1919245)

APPEAL from a judgment of the Superior Court of San Bernardino

County, Janet M. Frangie, Judge. Affirmed.

Law Office of Zulu Ali & Associates, Zulu Ali and Lance Kennix for 

Plaintiff and Appellant.

Murchison & Cumming, James O. Eiler, Paul W. Burke, and

Matthew E. Voss for Defendants and Respondents.

Rynold Dwayne Jackson (Jackson) appeals the entry of summary 

judgment against him on his complaint for malicious prosecution and unfair 

business practices, arguing that there are triable issues of fact on both causes 

of action. We disagree because both causes of action fail as a matter of law; 

therefore, we affirm the judgment. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND 

On April 2, 2016, Jackson went to Misty’s Lounge (Misty’s), which is a 

nightclub located within the Doubletree by Hilton Ontario Airport (Hotel).

After approximately an hour and a half, during which time Jackson 

consumed food and alcohol, a bartender refused to serve Jackson additional 

alcohol on the purported basis that Jackson was intoxicated. Jackson 

believed he was refused service based on his race, and he requested to speak 

to a supervisor. Mario Lara (Lara), the director of security for the Hotel, 

responded to Jackson’s complaint. Jackson and Lara initially discussed the 

matter inside Misty’s but then continued the discussion in the lobby of the 

Hotel. Lara confirmed the bartender’s decision and did not allow Jackson to 

re-enter Misty’s on the purported grounds that Jackson was intoxicated, and 

that Misty’s was closing at that time, which was the early morning of April 3, 

2016.

While Lara and Jackson were in the lobby, they came into physical 

contact with each other. Jackson believed that Lara initiated that contact, 

while Lara believed Jackson struck him. Lara then called the police and 

informed the responding officer that he wanted to press charges, resulting in 

a criminal prosecution against Jackson for battery. 

During his criminal trial in 2019, Jackson moved for acquittal pursuant 

to Penal Code section 1118.11 after the close of the prosecution’s case. The 

1 Both Jackson’s counsel and the trial court referred to Penal Code 

section 1118, which authorizes a motion for acquittal in a case tried without a 

jury. Penal Code section 1118.1, on the other hand, authorizes such a motion 

in a case tried before a jury. Because Jackson was tried before a jury, the 

motion and the court’s ruling are more accurately characterized as being 

under section 1118.1.
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trial court found that there was substantial evidence of battery and therefore 

denied the motion. Trial resumed and the jury ultimately found Jackson not 

guilty. 

On July 1, 2019, Jackson filed a civil complaint regarding the incident 

on April 2 and 3, 2016. The operative complaint, which is the second 

amendment complaint filed on January 13, 2020 (SAC), contains two causes 

of action. The first is for malicious prosecution against Lara, under which 

Jackson alleges that he was criminally prosecuted based on Lara’s false 

accusation of assault. The second is for a violation of the Unfair Competition 

Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) against DT Management,

LLC (DT), which is the company that managed Misty’s and the Hotel. Under 

that cause of action, Jackson alleges that DT denied African Americans equal 

access, allowed discriminatory behavior by its employees, and deleted footage 

of the incident except for footage that appeared to inculpate Jackson. 

On December 16, 2021, Lara and DT (collectively Respondents) filed a 

motion for summary judgment, or alternatively, summary adjudication, of the 

SAC. Jackson filed a written opposition, but after the court issued a 

tentative ruling granting the motion, he failed to appear at the motion 

hearing on April 22, 2022. The court interpreted Jackson’s failure to appear 
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as a submission on the tentative and granted the motion.2 The trial court 

then entered judgment in favor of Respondents on April 28, 2022. Jackson 

timely appeals from that judgment. 

II. 

DISCUSSION

A. Standard of Review

“A defendant moving for summary judgment must show the plaintiff’s 

causes of action have no merit. It may do so by negating an element of a 

cause of action or showing it has a complete defense to a cause of action. The 

burden then shifts to the plaintiff to show a triable issue of material fact as to 

the cause of action or defense.” (Ghazarian v. Magellan Health, Inc. (2020) 

53 Cal.App.5th 171, 182.) 

“We review a summary judgment ruling de novo. [Citation] ‘In 

practical effect, we assume the role of a trial court and apply the same rules 

and standards which govern a trial court’s determination of a motion for 

summary judgment.’ ” (Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 

178.) “Though summary judgment review is de novo, review is limited to 

2 The order granting summary judgment does not contain any reasons 

other than deeming Jackson’s failure to appear as a submission on the 

tentative ruling, and the tentative ruling is not in the record. Nonetheless, 

our independent review establishes the validity of the judgment as discussed 

below, so any failure by the trial court to state its reasons would be harmless 

and would not require reversal. (Byars v. SCME Mortgage Bankers, Inc. 

(2003) 109 Cal.App.4th 1134, 1146.) Additionally, the parties had an 

opportunity to present their views on the issues discussed herein, as those 

issues were raised by the parties in the trial court and on appeal. (Bains v. 

Moores (2009) 172 Cal.App.4th 445, 471, fn. 39.) 
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issues adequately raised and supported in the appellant’s brief.” (Christoff v. 

Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.) 

B. Malicious Prosecution

Jackson argues that the trial court erred in granting summary 

judgment on the malicious prosecution cause of action because there is a 

factual dispute as to who was the initial aggressor in the altercation with

Lara. He thus claims there are triable issues of fact on the elements of 

probable cause and malice. 

“ ‘[T]o establish a cause of action for malicious prosecution of either a 

criminal or civil proceeding, a plaintiff must demonstrate “that the prior 

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

pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was 

brought without probable cause [citations]; and (3) was initiated with malice 

[citations].” ’ ” (Greene v. Bank of America (2015) 236 Cal.App.4th 922, 931

(Greene).) 

The tort of malicious prosecution is disfavored and has therefore been 

limited for policy reasons. (Wilson v. Parker, Covert & Chidester (2002) 28 

Cal.4th 811, 816–817 (Wilson), superseded by statute on another point as 

recognized in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547–550.) One 

such limitation is the interim adverse judgment rule. (See Wilson, at p. 817.) 

“California courts have long embraced the so-called interim adverse judgment 

rule, under which ‘a trial court judgment or verdict in favor of the plaintiff or 

prosecutor in the underlying case, unless obtained by means of fraud or 

perjury, establishes probable cause to bring the underlying action, even 

though the judgment or verdict is overturned on appeal or by later ruling of 

the trial court.’ [Citation.] This rule reflects a recognition that ‘[c]laims that 

have succeeded at a hearing on the merits, even if that result is subsequently 
6

reversed by the trial or appellate court, are not so lacking in potential merit 

that a reasonable attorney or litigant would necessarily have recognized their 

frivolousness.’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776 

(Parrish).) 

“Although the rule arose from cases that had been resolved after trial, 

the rule has also been applied to the ‘denial of defense summary judgment 

motions, directed verdict motions, and similar efforts at pretrial termination 

of the underlying case.’ ” (Parrish, supra, 3 Cal.5th at pp. 776–777.) “Denial 

of a defense summary judgment motion on grounds that a triable issue exists, 

or of a nonsuit, while falling short of a determination of the merits, 

establishes that the plaintiff has substantiated, or can substantiate, the 

elements of his or her cause of action with evidence that, if believed, would 

justify a favorable verdict.” (Wilson, supra, 28 Cal.4th at p. 824.) “The 

determination arises, moreover, not because the same issue was litigated in 

the prior case, but because the result in the prior case (whether a verdict or 

judgment in the plaintiff’s favor, or denial of a defense summary judgment or 

SLAPP motion) establishes the existence of probable cause as a matter of 

law, absent proof of fraud or perjury.” (Id. at p. 825.) 

We are not aware of any published decisions applying the interim 

adverse judgment rule to a motion for acquittal pursuant to Penal Code 

section 1118.1, but as argued by Respondents, we find it appropriate in this 

case. While the probable cause standard for initiating a civil case discussed 

in Parrish and Wilson is not the same as that in a criminal case, both 

standards are comparatively low. In the civil context, “ ‘A litigant or attorney 

who possesses competent evidence to substantiate a legally cognizable claim 

for relief does not act tortiously by bringing the claim, even if also aware of 

evidence that will weigh against the claim. Plaintiffs and their attorneys are 
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not required, on penalty of tort liability, to attempt to predict how a trier of 

fact will weigh the competing evidence, or to abandon their claim if they 

think it likely the evidence will ultimately weigh against them. They have 

the right to bring a claim they think unlikely to succeed, so long as it is 

arguably meritorious.’ ” (Parrish, supra, 3 Cal.5th at pp. 777–778.) 

Similarly, in the criminal context, “ ‘It is not necessary that [the 

malicious prosecution defendant] shall institute an investigation of the crime 

itself, or seek to ascertain whether there are any other facts relating to the 

offense, or try to find out whether the accused has any defense to the charge. 

He is not required to exhaust all sources of information bearing upon the 

facts which have come to his knowledge.’ . . . . ‘The facts within his knowledge 

may not in point of law constitute a crime; but, if they are of such character 

as to induce in the mind of a reasonable man the honest belief that a crime 

has been committed, he is justified in seeking to have the crime punished.’ ” 

(Johnson v. Southern Pac. Co. (1910) 157 Cal. 333, 338.) 

More importantly, the standard for a motion for acquittal is higher 

than that for probable cause to initiate a criminal action. “In ruling on a 

motion for judgment of acquittal pursuant to section 1118.1, a trial court 

applies the same standard an appellate court applies in reviewing the 

sufficiency of the evidence to support a conviction, that is, ‘ “whether from the 

evidence, including all reasonable inferences to be drawn therefrom, there is 

any substantial evidence of the existence of each element of the offense 

charged.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1212–1213 (Cole).) 

Substantial evidence is defined as “evidence that is reasonable, credible, and 

of solid value—from which a reasonable trier of fact could have found the 

defendant guilty beyond a reasonable doubt.” (Id. at p. 1212.) As for a claim 

of malicious prosecution based upon initiation of a criminal case, “ ‘ “the 
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question of probable cause is whether it was objectively reasonable for the 

defendant . . . to suspect the plaintiff . . . had committed a crime.” ’ ” (Greene, 

supra, 236 Cal.App.4th at p. 931.) Accordingly, a motion for acquittal is 

based on an objective assessment of guilt of a crime, whereas the probable

cause determination is based on an objective assessment of suspicion that a 

crime was committed. 

When Jackson moved for acquittal at the close of the prosecution’s case, 

the only evidence that had been admitted was Lara’s testimony and 

surveillance footage of the altercation in the lobby. At the time Lara decided 

to pursue the criminal charges against Jackson, his knowledge of the incident 

was limited to that same evidence, namely, his own perception of the incident 

and his observation of the surveillance footage. When the court ruled on 

Jackson’s motion for acquittal, it stated, “I think in terms of an 1118, is there 

enough evidence for this, as [defense counsel] correctly pointed out, 

substantial evidence? I do think there is.” In so ruling, the trial court found 

that Lara’s testimony and the surveillance footage was “evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact 

could have found the defendant guilty beyond a reasonable doubt.” (Cole, 

supra, 33 Cal.4th 1158 at p. 1212.) This finding necessarily encompasses a 

determination that the evidence was sufficient to meet the probable cause 

standard of an objectively reasonable suspicion that Jackson committed a

crime, as suspicion of a crime is a lower standard than guilt beyond a 

reasonable doubt.

As for the exception for interim adverse rulings obtained by means of 

fraud or perjury, “This concern is generally not triggered by dishonesty or 

malfeasance that is merely intrinsic to an adversary proceeding, such as 

reliance on alleged untruths or fabricated evidence that a litigant has had a 
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full and fair opportunity to meet and test.” (Roche v. Hyde (2020) 51 

Cal.App.5th 757, 810.) Prior to the court’s ruling on the motion for acquittal, 

Jackson’s defense counsel extensively cross-examined Lara and used the 

surveillance footage to test Lara’s testimony. Thus, while Jackson disputed

Lara’s credibility, he had a full and fair opportunity to litigate that issue, and 

the court implicitly found Lara credible when it determined there was 

substantial evidence of battery. 

Accordingly, under the interim adverse judgment rule, the denial of 

Jackson’s motion for acquittal establishes that Lara had probable cause as 

matter of law. Because the lack of probable cause is a required element of 

malicious prosecution, there was no error in granting summary judgment on 

that cause of action.

C. Violation of the UCL

Jackson asserts two UCL violations under which he claims the trial 

court should have found triable issues of fact. First, he claims that “DT’s 

practice of excluding [him] from its establishment based on race, a false 

accusation of assault, ensuing arrest without probable cause and sufferance 

of physical assault by one of its employees clearly indicates a violation of 

public policy and an unfair business practice in violation of [section] 17200.” 

He contends “there’s a public policy against consumers being subject to 

violence and unwarranted contact by employees at a business establishment.” 

Second, Jackson claims DT’s actions were unlawful because they violated 

Civil Code section 51.5, which prohibits businesses from discriminating based 

on race. (Civ. Code, §§ 51.5, subd. (a), 51, subd. (b).) 

Unfair competition under the UCL includes “any unlawful, unfair or 

fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) “Because 

the statute ‘ “is written in the disjunctive, it establishes three varieties of 
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unfair competition—acts or practices which are unlawful, or unfair, or 

fraudulent.” ’ ” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 

594, 610 (Graham).) 

The UCL does not define the term “unfair.” As a result, a few earlier 

appellate decisions “attempted a definition” by stating that “ ‘[a]n “unfair”

business practice occurs when it offends an established public policy or when 

the practice is immoral, unethical, oppressive, unscrupulous or substantially 

injurious to consumers,’ ” or by requiring the court to “ ‘ “weigh the utility of 

the defendant’s conduct against the gravity of the harm to the alleged 

victim.” ’ ” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone 

Co. (1999) 20 Cal.4th 163, 184 (Cel-Tech).) In Cel-Tech, the California 

Supreme Court criticized these earlier definitions as “too amorphous.” (Id. at 

pp. 184–185.) The Cel-Tech court concluded “that any finding of unfairness to 

competitors under section 17200 [must] be tethered to some legislatively 

declared policy or proof of some actual or threatened impact on competition” 

and, in actions challenging a direct competitor’s “ ‘unfair’ ” act, it defined the 

term as “conduct that threatens an incipient violation of an antitrust law, or 

violates the policy or spirit of one of those laws because its effects are 

comparable to or the same as a violation of the law, or otherwise significantly 

threatens or harms competition.” (Id. at pp. 186–187.)

The holding in Cel-Tech was expressly limited to actions involving a 

competitor alleging anticompetitive practices (Cel-Tech, supra, 20 Cal.4th at 

p. 187, fn. 12), and appellate courts have split regarding the definition of 

“unfair” business practices in a consumer action. Nonetheless, “[t]his court 

has consistently followed” the line of cases finding that Cel-tech narrowed the 

definition of “unfair” in consumer actions, and “has held a plaintiff alleging 

an unfair business practice must show the ‘defendant’s “conduct is tethered to 
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an[ ] underlying constitutional, statutory or regulatory provision, or that it 

threatens an incipient violation of an antitrust law, or violates the policy or 

spirit of an antitrust law.” ’ ” (Graham, supra, 226 Cal.App.4th at p. 613; see 

also, Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1008; Aleksick v.

7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1192–1193; Durell v. Sharp 

Healthcare (2010) 183 Cal.App.4th 1350, 1365–1366 (Durell).) We continue 

to follow that approach in this case.

For his first theory under the UCL, Jackson refers to a “public policy 

against consumers being subject to violence and unwarranted contact by 

employees at a business establishment.” He does not provide any argument 

or legal authority showing that this claimed public policy exists, nor does he 

identify the basis for this claimed public policy; therefore, we may disregard 

this point. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418

[“ ‘[w]here a point is merely asserted by [appellant] without any [substantive] 

argument of or authority for its proposition, it is deemed to be without 

foundation and requires no discussion’ ”].) Further, Jackson improperly 

relies on the earlier definitions of “unfair” that were criticized in Cel-Tech, 

and an unsupported claim of public policy is insufficient to establish “unfair” 

conduct under the UCL. For example, in Durell, the plaintiff alleged that a 

hospital overcharged uninsured patients and used improper collection tactics. 

(Durell, supra, 183 Cal.App.4th at pp. 1356–1357.) Although he alleged these 

practices violated public policy, he failed to state a claim for unfairness under 

the UCL because he did not allege these practices were tethered to antitrust

law or any underlying constitutional, statutory or regulatory provision. (Id. 

at p. 1366.) Jackson’s reliance on an unsupported claim of public policy is 

similarly untethered to any law or regulation. His UCL claim based on a 

violation of public policy therefore fails as a matter of law. 
12

As for his second theory alleging a violation of Civil Code section 51.5, 

Jackson did not raise this claim in the trial court. It was not asserted in his 

written opposition to the motion, and he did not appear at the hearing on the 

motion. Jackson may not raise this theory for the first time on appeal; 

therefore, we will not consider it. (Expansion Pointe Properties Limited 

Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 

Cal.App.4th 42, 54 [“ ‘Generally, the rules relating to the scope of appellate 

review apply to appellate review of summary judgments. [Citation.] An 

argument or theory will . . . not be considered if it is raised for the first time 

on appeal.’ ”].) 

Based on the foregoing, Jackson has not shown any error regarding his 

UCL cause of action. 

III. 

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on 

appeal.

KELETY, J.

WE CONCUR:

O'ROURKE, Acting P. J.

CASTILLO, J.
Filed 3/7/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RYNOLD DWAYNE JACKSON,

Plaintiff and Appellant,

v.

MARIO LARA et al.,

Defendants and Respondents.

 D081549

 (Super. Ct. No. CIVDS1919245)

ORDER CERTIFYING 

OPINION FOR PUBLICATION

THE COURT:

The opinion in this case filed February 22, 2024, was not certified for 

publication. It appearing the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c), the request pursuant to 

rule 8.1120(a) for publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for 

publication specified in California Rules of Court, rule 8.1105(c); and
2

ORDERED that the words "Not to Be Published in the Official Reports" 

appearing on page one of said opinion be deleted and the opinion herein be 

published in the Official Reports.

O'ROURKE, Acting P. J.

Copies to: All parties