Wilson

One of the elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action. (Sheldon *815 Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874 [ 254 Cal.Rptr. 336 , 765 P.2d 498 ].) The question presented here is whether the trial court’s denial, in the prior action, of a special motion to strike under California’s anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16) establishes that probable cause did exist for bringing the action, precluding maintenance of the malicious prosecution suit absent proof the ruling was obtained by fraud. We conclude that denial of the motion to strike does establish the existence of probable cause where, as in this case, the trial court’s denial ruling was predicated on a finding that the action had potential merit. We therefore affirm the judgment of the Court of Appeal, which affirmed the trial court’s sustaining of demurrers to this malicious prosecution action.

Factual and Procedural Background

The underlying action, Kuzmich v. Mexican Political Assn. (Super. Ct. Riverside County, 1996, No. 283066) arose from demonstrations and personal…

Although I concur with most of the majority’s reasoning, I write separately because I find its distinction of Crowley v. Katleman (1994) 8 Cal.4th 666 [ 34 Cal.Rptr.2d 386 , 881 P.2d 1083 ] (Crow ley) unpersuasive. (See maj. opn., ante, at pp. 824-825.) According to the majority, “[w]e did not, in Crowley , indicate whether we approved the result in Lucchesi [v. Giannini & Uniack (1984) 158 Cal.App.3d 777 [ 205 Cal.Rptr. 62 ]] because . . . summary judgment may be denied on any of a number of procedural or technical grounds, or whether we agreed with Lucchesi that even a determination of the existence of triable issues would not establish *827 probable cause.” (Maj. opn., ante, at p. 825.) Based on this ambiguity in Crowley , the majority concludes that “[o]ur favorable but passing mention of Lucchesi... did not constitute a full endorsement of its reasoning . . . .” (Ibid.) After reviewing Crowley , I disagree.

In Crowley , Carole Katleman, represented by counsel (together, the defendants), filed a will contest, alleging six separate grounds for invalidating the will. (Crowley, supra, 8 Cal.4th at p. 673 .) Arthur J. Crowley, the principal beneficiary of the will, filed a motion…

One of the elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action. ( Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874 , 254 Cal. Rptr. 336 , 765 P.2d 498 .) The question presented here is whether the trial court's denial, in the prior action, of a special motion to strike under California's anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc, § 425.16) establishes that probable cause did exist for bringing the action, precluding maintenance of the malicious prosecution suit absent proof the ruling was obtained by fraud. We conclude that denial of the motion to strike does establish the existence of probable cause where, as in this case, the trial court's denial ruling was predicated on a finding that the action had potential merit. We therefore affirm the judgment of the Court of Appeal, which affirmed the trial court's sustaining of demurrers to this malicious prosecution action.

The underlying action, Kuzmich v. Mexican Political Assn. (Super. Ct. Riverside County, 1996, No. 283066), arose from demonstrations and personal confrontations occurring in and around a…