10
completely without merit” ’ may form the basis for a malicious prosecution suit.”
(Wilson, supra, 28 Cal.4th at p. 817.)
The tort of malicious prosecution includes the continuing prosecution of an action
found to lack probable cause. (Zamos, supra, 32 Cal.4th at p. 973.) While an attorney is
entitled to rely on information from his or her client for purposes of assessing a claim’s
legal tenability, “[a]n exception to this rule exists where the attorney is on notice of
specific factual mistakes in the client’s version of events.” (Morrison v. Rudolph (2002)
103 Cal.App.4th 506, 512–513, overruled in part on other grounds in Zamos, supra, 32
Cal.4th at p. 973.)
Even if we assume the attorney defendants had probable cause to initially file suit
in July based on the information provided by their client, as well as Olivares’s tender of
partial payment within the July notice period, it is undisputed that defendants continued
prosecution of the unlawful detainer action until October 2. In this regard, we conclude
plaintiffs made a prima facie showing that probable cause was lost when the attorney
defendants were made aware, in August, of significant errors in Pineda’s rent ledger,
including the omission of five payments totaling $6,800. Indeed, Pineda acknowledged
at his August deposition that the payments were made to his account. Furthermore, as
plaintiffs point out, the revised rent ledger attached to the October notice appears to
include these same missing payments, lending credence to plaintiffs’ claim that
defendants failed to take these payments into account when initially demanding rent in
the July notice and pursuing the unlawful detainer action up through October 2.
The attorney defendants argue that, in any event, following Pineda’s deposition,
they conducted a further investigation and determined from bank and other unspecified
records that the total amount of rent owing as of July 1 was actually $3,250. In support,
they submit the revised rent ledger and copies of checks for the payments that were made.
The attorney defendants contend they had the right to bring an arguably meritorious
claim based on this evidence, and probable cause was not lacking simply because
plaintiffs had competing evidence. (Wilson, supra, 28 Cal.4th at p. 822.)