9
determination of the reasons underlying the dismissal is a question of fact. ( Id. at
p. 1399.)
A landlord cannot recover in an unlawful detainer based on a three-day notice that
seeks rent in excess of the amount due. (Levitz Furniture Co. v. Wingtip
Communications (2001) 86 Cal.App.4th 1035, 1038.) In support of their contention that
the rent demand in the July notice was excessive, plaintiffs presented a copy of Pineda’s
initial rent ledger showing that the amount of rent outstanding as of July 1, 2017, was
$1,750—$1,000 less than the amount demanded. Plaintiffs also presented evidence that
Pineda failed to credit them for five rent payments totaling $6,800, which permits the
inference that no rent was due as of July 1. Because the action was voluntarily dismissed
after the disclosure of this evidence, plaintiffs made a prima facie showing that the
dismissal reflected the attorney defendants’ opinion that the unlawful detainer action
could not succeed based on the July notice.7
In response, the attorney defendants offer the alternative explanation that the case
was dismissed so that a more accurate three-day notice demanding additional amounts of
unpaid rent could be served. But that explanation merely raises a triable factual dispute
as to the true circumstances of the termination and does not defeat plaintiffs’ prima facie
showing as a matter of law. (Soukup, supra, 39 Cal.4th at p. 291.)
b. Lack of Probable Cause
“An action is deemed to have been pursued 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.” (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1402.)
“Only those actions that ‘ “any reasonable attorney would agree [are] totally and