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payments made, could support an improper purpose theory of malice. The attorney
defendants argue the theory is meritless because the proposed sale was cancelled and
never went forward. But the record does not disclose when the contract was cancelled,
and Pineda’s testimony that the buyer specifically asked for “a date when the eviction
was going to be over” permits the inference that the filing of the unlawful detainer action
was directly related to the proposed deal to deliver the building vacant.
For all of these reasons, we conclude plaintiffs showed at least minimal merit on
their malicious prosecution claim to withstand the anti-SLAPP motion.
2. Litigation Privilege
We now turn to the remaining claims for wrongful eviction and breach of the
covenant of quiet enjoyment, which the attorney defendants contend are barred by the
litigation privilege. The litigation privilege codified in Civil Code section 47,
subdivision (b), extends to any communication: (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the
objects of the litigation; and (4) that has some connection or logical relation to the action.
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The litigation privilege is broadly
applied (id. at p. 211) and applies to all torts other than malicious prosecution (Edwards
v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29 (Edwards)).
The challenged claims are based on the October notice. A prelitigation
communications such as this is privileged only when it relates to litigation that is
contemplated in good faith and under serious consideration. (Action Apartment Assn.,
Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) “ ‘No public policy supports
extending a privilege to persons who attempt to profit from hollow threats of litigation.’ ”
(Ibid.) Whether a prelitigation communication relates to litigation that is contemplated in
good faith and under serious consideration is an issue of fact. (Ibid.)
The failure to file a threatened action is one factor supporting a contrary inference
of good faith and serious contemplation of future litigation. (Laffer v. Levinson, Miller,
Jacobs & Phillips (1995) 34 Cal.App.4th 117, 124–125.) Here, no unlawful detainer
action was filed pursuant to the October notice. The attorney defendants argue they were