Paiva

The absence of probable cause for bringing a prior action is an essential element of a malicious prosecution claim. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 867 [ 254 Cal.Rptr. 336 , 765 P.2d 498 ] (Sheldon Appel).) One way that a defendant can negate this element (and thereby defeat the claim) is by showing that an interim victory in the underlying case—such as the granting of a preliminary injunction in favor of the malicious prosecution defendant (the plaintiff in the prior case)— established probable cause. (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350 [ 125 Cal.Rptr.2d 383 ] (Fleishman).) In the case before us, we decide whether defendants’ failure to perfect their preliminary injunction by posting an undertaking precludes their assertion that they had probable cause to bring the prior case. We also consider whether nonattomeys—as is the case with attorneys (Zamos v. Stroud (2004) 32 Cal.4th 958 [ 12 Cal.Rptr.3d 54 , 87 P.3d 802 ] (Zamos))—may be liable for malicious prosecution where they have probable cause to commence an action but later learn (while the case is still pending) that it lacks merit.

In 2004, James Nichols and Peter…