11
Given the record, we cannot conclude that the attorney defendants’ evidence
defeated plaintiffs’ prima showing as a matter of law. (Soukup, supra, 39 Cal.4th at
p. 291.) Plaintiffs raised a triable factual issue that the revised ledger was “manipulated”
because it omitted payments that had previously been listed in the first ledger, including a
$2,000 payment dated June 8, 2017. Notably, the attorney defendants did not respond to
plaintiffs’ manipulation argument or attempt to explain the ledger discrepancies.
In sum, the record demonstrates plaintiffs made a prima facie showing that the
attorney defendants continued to prosecute the unlawful detainer action even though they
knew Pineda’s claim was no longer tenable because the demand in the July notice was
excessive and did not credit plaintiffs with $6,800 in rent payments. Moreover, the
attorney defendants’ reliance on the revised ledger did not defeat plaintiffs’ showing as a
matter of law because plaintiffs raised a triable issue that the revised ledger was
manipulated to understate the total amount they paid to Pineda.
c. Malice
The malice element goes to the defendant’s subjective intent in initiating or
continuing the prior action. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th
1135, 1156–1157 (Sierra Club).) It is not limited to actual hostility or ill will and may be
present when proceedings are instituted or maintained primarily for an improper purpose.
(Ibid.)
Evidence tending to show that an attorney did not subjectively believe the action
was tenable is relevant to whether an action was instituted or maintained with malice.
(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881.) Here, the evidence of
manipulation discussed above permits the inference that the attorney defendants
subjectively did not believe the unlawful detainer action was tenable.
Furthermore, plaintiffs raised a triable issue that the action was brought for the
improper purpose of depriving them of the beneficial use of the premises even though
they were not in default on rent. (Sierra Club, supra, 72 Cal.App.4th at p. 1157.)
Pineda’s testimony that he entered into a contract to sell the leased premises to a buyer
who wanted the building vacant, combined with his failure to credit plaintiffs for all