Date: 02-08-2008

Case Style: Estate of C. Delores Tucker, etc. v. Interscope Records, Inc., et al.

Case Number: 05-56045

Judge: Richard A. Paez

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California, Los Angeles County

Plaintiff's Attorney: Richard C. Angino, Harrisburg, Pennsylvania, for the appellants.

Defendant's Attorney: Steven A. Marenberg, Perry M. Goldberg, & Jason Linder, Los Angeles, California, for appellees David Kenner, Geoffrey Thomas, Interscope Records, Inc., Interscope Records, Charles B. Ortner, and Paul, Hastings, Janofsky & Walker LLP. Ronald L. Leibow, Los Angeles, California, for appellee Death Row Records, Inc.

Description: In the early 1990s, Cynthia DeLores Tucker, whose history as an activist dates back to the civil rights movement of the 1950s and 1960s, became concerned with the increasing popularity of the style of hip-hop music known as "gangsta rap," particularly its appeal to African-American youth. She enlisted the support of notable entertainers including Dionne Warwick and Melba Moore to engage in lobbying and media outreach, with the goal of limiting the sale of gangsta rap to young people. Her efforts brought her head-to-head with two of the genre's most successful production and distribution labels: Death Row Records, Inc. and Interscope Records, Inc. After Tucker and other members of her coalition approached Suge Knight, then-CEO of Death Row, about entering into a distribution contract with the media behemoth Time Warner, Inc., Death Row and its distributor Interscope filed separate federal court actions (the "underlying litigation") against Tucker, alleging intentional interference with their exclusive contractual relationship and other related claims.

After Death Row and Interscope successfully moved for dismissal without prejudice, the Tuckers filed separate lawsuits against the two entities and their lawyers in federal district court, invoking diversity jurisdiction and charging them with malicious prosecution. Her husband William Tucker sought damages for loss of consortium as a derivative claim. Applying California law, the district court granted summary judgment in both cases based on its conclusion that the Tuckers' evidence did not create a genuine issue of fact as to whether any of the defendants had acted with malice, a necessary element of a malicious prosecution claim. The district court also dismissed Mr. Tucker's loss of consortium claim on the grounds that Mr. Tucker failed to carry his burden of production and that without a viable claim for malicious prosecution, his derivative claim failed as a matter of law.

Reviewing de novo the grants of summary judgment in both cases, we conclude that, on the evidentiary record before the district court, it correctly concluded - except with regard to the claim for abuse of process included in the complaint filed by Death Row's attorney David Kenner - that the Tuckers did not present sufficient evidence to defeat the motions for summary judgment on the issue of malice. We therefore affirm the summary judgment in Tucker v. Interscope, and affirm in part and reverse in part the district court's grant of summary judgment in Tucker v. Kenner. We remand for trial the Tuckers' malicious prosecution claim against Kenner to the extent that it is predicated on the abuse of process claim that he included in Death Row v. Tucker. As we explain below, as to that one claim the Tuckers have raised a genuine triable issue of fact.

II.

Factual and Procedural Background

To fully understand these consolidated appeals, it is necessary to set forth the history of the two cases in some detail. Because the district court did not provide an extensive recitation of undisputed facts, we rely primarily on the parties' briefs and the record for the following factual overview, noting factual disputes where they exist and construing any ambiguities in favor of the Tuckers, as the non-moving parties.

A. The Underlying Dispute

Mrs. Tucker was a prominent civil rights advocate who served as the first African-American Secretary of State of Pennsylvania, the first African-American chair of the National Federation of Democratic Women, and the Chair of the Democratic National Committee Black Caucus. She also cofounded and chaired the National Political Congress of Black Women, Inc. ("NPC"), a non-profit organization dedicated to promoting African-American women's education and political, economic, and cultural development.

During the early 1990s, Mrs. Tucker became troubled by the growing popularity of "gangsta rap."3 Of particular concern to Mrs. Tucker was the genre's influence on African- American youth, who she feared would adopt the music's violent and sometimes misogynist perspectives. At the NPC's biennial meeting in 1993, Mrs. Tucker enlisted the help of well-known artists Dionne Warwick, Melba Moore, and Terri Rossi, along with lobbyist Voncier Alexander, to form an Entertainment Commission for the NPC that would support African-American entertainers, and particularly women. The Entertainment Commission adopted a three-part mission: to eliminate barriers facing African-American artists and executives; to mobilize African-American entertainers to address important issues affecting African-American communities; and to "reshap[e] and maintain[ ] positive images to preserve the dignity and heritage of our youth." From 1993 to 1995, the Entertainment Commission worked with prominent individuals in entertainment and media, along with religious leaders and lobbyists, to put pressure on music producers and distributors to halt the sale of gangsta rap to minors. Among Mrs. Tucker's more high-profile efforts in pursuit of this goal were an appearance at a 1995 Time Warner shareholder's meeting, where she offered Time Warner executives $100 to read aloud gangsta rap lyrics from albums distributed under its name, and a protest against the sale of gangsta rap albums outside a Tower Records store, for which she was arrested. Death Row is an independent record label founded in 1991 by Suge Knight and the well-known rap artist Dr. Dre. Death Row signed extremely popular gangsta rap stars including Dr. Dre, Tupac Shakur ("Tupac"), Snoop Doggy Dogg ("Snoop"), and Danny Boy, generating enormous profit, and notoriety, for the label throughout the mid-1990s. Interscope is a general partnership that records and distributes popular music. Like Death Row, it gained success and prominence during the 1990s through the distribution and sale of gangsta rap. From 1992 to 1998, Death Row maintained an exclusive contractual relationship with Interscope, whereby Interscope was the sole distributor of Death Row's music.

In 1995, Mrs. Tucker and the Entertainment Commission began to direct their anti-gangsta rap campaign at Death Row. Knight, Death Row's outside counsel David Kenner, and Omar Bradley, who was then the mayor of Compton, California, were invited to the NPC's biennial convention in July 1995, where they attended a meeting with Mrs. Tucker and other members of the Entertainment Commission. Some facts - including who initiated the meeting - are in dispute, but it is uncontested that this meeting occurred. According to Mrs. Tucker's deposition testimony, during the meeting she spoke with Knight about the influence of gangsta rap on African- American youth and asked him to change the violent and misogynist nature of the lyrics on the albums he produced. Mrs. Tucker testified that Knight agreed to make changes and to come back to the Entertainment Commission with a sample. At some point shortly before or after the NPC convention, Warwick held an informal meeting with Knight, Snoop, and Danny Boy at her home in Los Angeles. According to Warwick, the group discussed removing several references to women as "bitches" and "ho's" on Dogg Food, an album by Tha Dogg Pound that Death Row would soon be releasing. Warwick testified at her deposition that she relayed this information to Mrs. Tucker, Alexander, and Michael Fuchs, then- CEO of Warner Music Group, an affiliate of Time Warner.

The summary judgment record contains a letter, dated August 7, 1995, printed on NPC letterhead. The letter appears to be from Knight, though it does not bear his signature. It is addressed to Mrs. Tucker in her capacity as chair of the NPC. The letter commemorates the purported details of Knight's meeting with Mrs. Tucker at the NPC convention and reads in part:

I [Knight] hereby designate and authorize the [NPC] to negotiate an acceptable contract relationship with Time Warner Inc. regarding the production and distribution of [Death Row] music products. I hereby understand that the above arrangement is based on the fact that my company will cease and desist from the production and distribution of misogynist, obscene and pornographic music. . . . This authorization is submitted to demonstrate my good faith in cooperating with the [NPC] in every way possible to reverse the negative trends in African-American music.

There is conflicting testimony as to the circumstances of the letter's drafting, but according to Mrs. Tucker's own testimony it was drafted in the NPC office at her request. Mrs. Tucker also testified that she "gave the final okay to it." On August 8, 1995, another meeting took place at Warwick's house. In attendance were Warwick, Mr. Tucker, Fuchs, and Alexander. Knight was invited but did not attend. Kenner testified at his deposition that he spent that day with Knight and that Knight received several phone calls throughout the day from someone at the meeting. According to Kenner, Knight was offered $80 million and two recording studios if he would agree to break Death Row's contract with Interscope and enter into a new contract with the Warner Music Group. Warwick and Mr. Tucker each testified, when deposed, that no one at the meeting made such an offer to Knight; Warwick also testified that Knight called her that day "at least four times" to discuss problems he had with the August 7 letter.

On August 9, 1995, Kenner sent Warwick a letter on Knight's behalf, indicating that "Mr. Knight has never conveyed [the] authorization [for the NPC to negotiate a contract with Death Row and Time Warner] and to the extent that there is any misapprehension . . . Mr. Knight hereby specifically repudiates any such agreement. . . . Mr. Fuchs [sic] offer, as conveyed to Mr. Knight, of an $80,000,000 advance and to provide him with two studios if he would agree to sign directly with Time/Warner is specifically rejected."

B. The Underlying Litigation

On August 15, 1995, Interscope filed a complaint ("Interscope v. Tucker") in the United States District Court for the Central District of California, charging Mrs. Tucker with inducement to breach contract, interference with contractual relations and prospective business advantage, attempting to induce breach of fiduciary duty, and unfair business practices and unfair competition. Interscope sought damages and an injunction enjoining Mrs. Tucker from attempting to induce Death Row to breach its contract, interfering with the Death Row contract, tortiously interfering with Interscope's prospective business advantage, and attempting to induce Time Warner and/or Atlantic Records to breach their fiduciary duties to Interscope.4 The complaint listed Charles Ortner, Geoffrey Thomas, and Belinda Orem from the law firm of Paul, Hastings, Janofsky & Walker, LLP ("Paul Hastings") as attorneys for Interscope.

On August 17, 1995, Death Row filed a complaint ("Death Row v. Tucker") in the United States District Court for the Central District of California, naming as defendants Mrs. Tucker, the NPC, Time Warner, Inc., Warner Music Group, Inc., Fuchs, and Gerald Levin, who was then-chair of Time Warner's board of directors. The complaint charged all defendants with racketeering and/or aiding and abetting racketeering under 18 U.S.C. § 1962(b) and (c); conspiring to violate § 1962(b) and (c); conspiring to interfere with advantageous business relationships; extortion; unfair business practices; and abuse of process. The complaint also sought to enjoin all defendants from engaging in extortion, interfering with Death Row's First Amendment rights, and "any other unlawful act alleged in this complaint." Kenner was listed as counsel for Death Row.

Interscope v. Tucker and Death Row v. Tucker were assigned to the same district court judge. The district court granted Mrs. Tucker's motion for judgment on the pleadings in Interscope v. Tucker as to the claim for inducement to breach a contract but denied the motion as to the remaining claims. Pre-trial activity continued until June 1998, when Interscope and Death Row each filed motions for voluntary dismissal on the grounds that "Tucker is essentially judgment proof" and Interscope and Death Row no longer had a contractual relationship "for business reasons unrelated to this litigation." The district court granted the motions and dismissed both Interscope v. Tucker and Death Row v. Tucker without prejudice, over Mrs. Tucker's objection that the suits should be dismissed with prejudice.

C. The Malicious Prosecution Litigation

Within a month of the dismissal, the Tuckers filed their complaint in Tucker v. Interscope in the United States District Court for the Eastern District of Pennsylvania, invoking diversity jurisdiction. The complaint charged Interscope, Death Row, Ortner, and Paul Hastings ("Interscope Defendants") with malicious use of civil proceedings, abuse of process, intentional infliction of emotional harm, common law civil conspiracy, and racketeering conspiracy in violation of 18 U.S.C. § 1962(d). Upon Defendants' motion, the case was transferred to the Central District of California. The Tuckers later successfully moved to withdraw all but the malicious prosecution and loss of consortium claims.

The Tuckers filed their complaint in Tucker v. Kenner in the United States District Court for the Central District of California, naming Kenner and Thomas as defendants ("Kenner Defendants"), along with five other defendants who were subsequently dismissed, and again invoking diversity jurisdiction.5 5The district court and the parties relied on California law in both cases, as do we. Neither party has argued that Pennsylvania law should apply in

The Kenner complaint similarly raised claims for malicious prosecution and loss of consortium, in addition to abuse of process, slander, and negligent and intentional infliction of emotional distress. The district court later dismissed all but the malicious prosecution and loss of consortium claims. After discovery, the Interscope and Kenner Defendants filed separate motions for summary judgment based on (1) an affirmative defense of unclean hands; (2) lack of favorable termination; (3) existence of probable cause; (4) lack of malice; (5) insufficient evidence of damages; and (6) no loss of consortium. The district court granted the motion on the basis of insufficient evidence of damages and no loss of consortium but declined to address the other issues on the ground that they were moot. We reversed the summary judgment rulings in both cases in an unpublished memorandum disposition. See Tucker v. Kenner, 85 F. App'x 610 (9th Cir. Jan. 14, 2004) (unpublished).6 We remanded with instructions to the district court to consider the remaining grounds for summary judgment: unclean hands; lack of favorable termination; existence of probable cause; and lack of malice. Id. at 614. On remand, the Interscope and Kenner Defendants again filed for summary judgment asserting: (1) an unclean hands affirmative defense; (2) lack of favorable termination; (3) no loss of consortium; and (4) existence of probable cause for the underlying claims; and (5) lack of malice.

In Tucker v. Interscope, the district court concluded that genuine issues of fact existed as to favorable termination and Defendants' affirmative defense of unclean hands. It conthe Interscope case. See C.N.R. Atkin v. Smith, 137 F.3d 1169, 1170-71 (9th Cir. 1998) ("The district court applied California law to this dispute and neither party objected. Therefore, we consider the parties to have waived any objection to the application of California law."). cluded, however, that all Interscope Defendants had probable cause to pursue claims for intentional interference with contractual relationship, intentional interference with prospective business advantage, and unfair business practices and unfair competition. However, regarding Interscope, Ortner, and Paul Hastings, the district court found that genuine issues of fact existed as to whether they had probable cause to pursue the claims for inducement to breach contract and inducement to breach fiduciary duty. Regarding Death Row, the district court found that genuine issues of fact existed as to whether it had probable cause to pursue the claims for RICO violations, state law extortion, and abuse of process.

In addition, the district court concluded that the Tuckers "failed to produce any evidence to show that the Interscope Defendants acted with malice" in filing the underlying lawsuits and that Mr. Tucker's alleged injuries were insufficient to support a claim for loss of consortium. It therefore dismissed the malicious prosecution claim based on insufficient evidence of malice and dismissed the loss of consortium claim because it was alleged as a derivative claim and because Mr. Tucker's evidence was insufficient to establish a loss of consortium. The Tuckers timely appealed the district court's judgment, Case No. 05-56045.7

In Tucker v. Kenner, the district court concluded that Kenner and Thomas had probable cause to pursue the claims for intentional interference with contractual relationship, intentional interference with prospective business advantage, and unfair business practices and unfair competition. It concluded that material issues of fact remained whether Thomas had probable cause to pursue the claims for inducement to breach contract and inducement to breach fiduciary duty and whether Kenner had probable cause to pursue the claim for abuse of process. The district court further concluded that material issues of fact remained as to favorable termination and Defendants' unclean hands affirmative defense.

As in Tucker v. Interscope, however, the district court concluded that the Tuckers "failed to produce any evidence to show that [Thomas] acted with malice" and therefore dismissed the malicious prosecution and loss of consortium claims against him. The court also dismissed the loss of consortium claim against Kenner for lack of evidence but did not address whether the Tuckers' evidence could show that Kenner acted with malice. In response to this ambiguity, Kenner filed a second motion for summary judgment on the basis of lack of malice and for clarification of the court's prior ruling. The district court's subsequent ruling determined that the malicious prosecution claim against Kenner should be dismissed because "the evidence Plaintiffs offer in addition to this finding is insufficient to show that Kenner acted with malice." Therefore, "[a] reasonable jury could not return a verdict in [the Tuckers'] favor" and summary judgment was warranted.8 The Tuckers timely appealed this judgment as well, Case No. 06-55376.

III.

Jurisdiction and Standard of Review The district court had original jurisdiction over both cases under 28 U.S.C. § 1332. Our jurisdiction over the Tuckers' timely appeals arises under § 1291. We review de novo a district court's grant of summary judgment. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir. 2001). Federal rather than California procedural rules govern this diversity action. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A defendant who moves for summary judgment bears the initial burden of proving the absence of any triable issue of fact but need not produce evidence negating elements of a claim for which the plaintiff bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A non-moving plaintiff can defeat a motion for summary judgment by producing evidence "such that a reasonable jury could return a verdict" in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Pursuant to Federal Rule of Civil Procedure 56(e), a non-moving plaintiff cannot "rest upon the mere allegations or denials of the adverse party's pleading" but must instead produce evidence that "set[s] forth specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks omitted).

IV.

The Malicious Prosecution Claims

[1] Under California law, a malicious prosecution claim is disfavored and requires proof that the underlying litigation: (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in ESTATE OF TUCKER v. INTERSCOPE RECORDS 1803 his, plaintiff's, favor; (2) was brought without probable cause; and (3) was initiated with malice. Zamos v. Stroud, 87 P.3d 802, 807 (Cal. 2004) (internal quotation marks, citations, and alterations omitted). In addition, the plaintiff must demonstrate "resulting damage by way of attorneys' fees incurred in defense, mental distress, and/or injury to reputation or social standing." Harbor Ins. Co. v. Cent. Nat'l Ins. Co., 211 Cal. Rptr. 902, 907 (Ct. App. 1985). Because, with one exception, we conclude that the Tuckers' evidence did not establish a genuine issue of fact as to malice, we do not address the element of favorable termination for Mrs. Tucker.9 We discuss the element of probable cause to the extent it relates to malice.

A. The Elements of Malice and Probable Cause

"The ‘malice' element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. . . ." Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 503 (Cal. 1989). In Sierra Club Found. v. Graham, 85 Cal. Rptr. 2d 726 (Ct. App. 1999), the California Court of Appeal explained: [M]alice is present when proceedings are instituted primarily for an improper purpose. Suits with the hallmark of an improper purpose are those in which: (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.

Id. at 739-40 (internal quotation marks, citation, and alteration omitted). Malice is usually a question of fact for the jury to determine. See Sheldon Appel Co., 765 P.2d at 503. Summary judgment on the basis of lack of malice is nonetheless appropriate when there is no evidence from which a reasonable fact finder could conclude that the defendant pursued the underlying action with malice. See Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892, 899 (9th Cir. 1987) (affirming summary judgment dismissal of malicious prosecution claim under California law when plaintiff could "point to no evidence from which a fact-finder could reasonably infer that the investigators or the employer lacked probable cause or that they acted with malice").

Probable cause, in contrast, is a question of law that turns on whether the underlying claim was "legally tenable, as determined on an objective basis." Padres L.P. v. Henderson, 8 Cal. Rptr. 3d 584, 600 (Ct. App. 2004). Whereas the element of malice focuses on the defendant's state of mind at the time he initiated the underlying litigation, probable cause: "is measured by the state of the defendant's knowledge, not by his intent. . . . [T]he standard applied to defendant's consciousness is external to it. The question is not whether he thought the facts to constitute probable cause, but whether the court thinks they did."

Sheldon Appel Co., 765 P.2d at 508 (quoting Dir. Gen. v. Kastenbaum, 263 U.S. 25, 27-28 (1923)) (emphasis in Sheldon Appel Co.).

[2] The elements of malice and probable cause therefore require different showings. The probable cause inquiry is objective, asking whether a reasonable person would have thought that the claim was legally tenable "without regard to [her] mental state." Roberts v. Sentry Life Ins., 90 Cal. Rptr. 2d 408, 412 (Ct. App. 1999). The only potential factual issue for purposes of probable cause is "the state of the defendant's knowledge" at the time she initiated the underlying lawsuit. Sheldon Appel Co., 765 P.2d at 507.10 "[W]hen the state of the defendant's factual knowledge is resolved or undisputed, it is the court which decides whether such facts constitute probable cause or not." Id. at 508.11

[3] Malice, on the other hand, is shown through evidence of "the subjective mental state of the defendant in instituting the prior action." Downey Venture v. LMI Ins. Co., 78 Cal. Rptr. 2d 142, 152 (Ct. App. 1998) (internal quotation marks omitted). Because the objective reasonableness of the underlying lawsuit is separate from a defendant's subjective mental state in bringing it, by itself, the conclusion that probable cause is absent logically tells the trier of fact nothing about the defendant's subjective state of mind. . . . [T]he presence of malice must be established by other, additional evidence. . . . [T]hat evidence must include proof of either actual hostility or ill will on the part of the defendant . . . to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant. Id. at 153-54 (citations and footnote omitted) (emphasis added); see also Grindle v. Lorbeer, 242 Cal. Rptr. 562, 565 (Ct. App. 1987) ("[I]n a given case, unreasonable behavior which could lead to a determination that there was a lack of probable cause to file, might not provide a sufficient basis to infer malice." (emphasis added) (internal quotation marks omitted)).

[4] As recently as 2002 the California Court of Appeal has emphasized that where malice must be shown, only "other, additional evidence" apart from a lack of probable cause, is sufficient. Swat-Fame, Inc. v. Goldstein, 101 Cal. App. 4th 613, 634 (2002) (citing Downey Venture, 66 Cal.App.4th at 498), disapproved on other grounds by Zamos v. Stroud. In Swat-Fame, that additional evidence was the deposition testimony of defendant Goldstein. In her testimony Goldstein admitted as true facts that she had alleged were false in her recently-filed complaint against Swat-Fame. When her complaint was dismissed, Swat-Fame brought suit for malicious prosecution. The court of appeal determined that the discord between Goldstein's two accounts, as well as her settlement tactics in the earlier litigation raised a material issue as to whether she "knowingly [brought] an action without probable cause." Id. Swat-Fame confirms our understanding of California law that the two elements - probable cause and malice - are not only distinct but that "a lack of probable cause, standing alone, does not support an inference of malice." Id.12

For the reasons that follow, we conclude that - save for the abuse of process claim filed by David Kenner - the Tuckers' evidence did not create a triable issue of fact whether the Interscope or Kenner Defendants acted with malice in pursuing Interscope v. Tucker and Death Row v. Tucker. Although the Tuckers have not attempted to differentiate their evidence of malice as it relates to Interscope and Death Row as parties in the underlying litigation and to Ortner, Kenner, Thomas, and Paul Hastings as attorneys for the parties, we note that a party's malfeasance in initiating a lawsuit is not imputable to counsel. See Zeavin v. Lee, 186 Cal. Rptr. 545, 548 (Ct. App. 1982). Nor are claims related to continuing such a lawsuit interchangeable for parties and attorneys.13 We therefore separately consider the two groups of defendants.

B. Defendants Death Row and Interscope

[5] The Tuckers first assert that they could prove malice to a jury because they have contested factual allegations made in the complaints in Death Row v. Tucker and Interscope v. Tucker. A "bare assertion that [defendants] ‘fabricated' evidence" does not show malice. Sangster v. Paetkau, 80 Cal. Rptr. 2d 66, 75 (Ct. App. 1998); see also Fed. R. Civ. P. 56(e).14 The Tuckers' evidence comprises only Mrs. Tucker's deposition testimony that the underlying cases were "lies, and that's the reason this [malicious prosecution] suit was filed," and similar statements by Mr. Tucker. These unsubstantiated assertions do not create a triable issue of fact regarding the existence of malice. Moreover, "the fact there may be some disputed facts relevant to the merits of the underlying action does not by itself defeat a motion for summary judgment in a malicious prosecution action." Sangster, 80 Cal. Rptr. 2d at 76.

[6] The Tuckers also argue that the district court erred in granting summary judgment on the basis of lack of malice when there were genuine issues of fact regarding the existence of probable cause for some claims brought in the underlying litigation. But the fact that the district court found triable issues of fact as to probable cause for some claims, without more, is insufficient to survive summary judgment based on lack of malice. See Paulus v. Bob Lynch Ford Inc., 43 Cal. Rptr. 3d 148, 161 (Ct. App. 2006) ("Malice cannot be established simply by a showing of the absence of probable cause. . . ."); Downey, 78 Cal. Rptr. 2d at 153-54 (holding that underlying claim's "lack[ of] legal tenability . . . without more, would not . . . permit the inference [of malice]" and requiring that "the presence of malice . . . be established by other, additional evidence"). As explained above, malice requires proof of a defendant's subjective state of mind; a "conclusion that probable cause [as an objective inquiry] is absent logically tells the trier of fact nothing about the defendant's subjective state of mind." Downey, 78 Cal. Rptr. 2d at 153. Even if we were to agree with the dissent that probable cause was lacking for many of the claims alleged in Death Row v. Tucker and Interscope v. Tucker, the evidence provided by the Tuckers is simply not probative of the subjective intent in filing the underlying lawsuits.

In Padres, the Court of Appeal concluded that the plaintiff established a prima facie case of malice15 because, in addition to the lack of probable cause, the defendant filed repeated actions against the plaintiff "in order to interfere with and/or derail" the plaintiff's business venture. 8 Cal. Rptr. 3d at 605.

This evidence of subjective intent was in addition to the lack of probable cause and was sufficient to defeat summary judgment. See id. In HMS Capital, Inc. v. Lawyers Title Co., 12 Cal. Rptr. 3d 786 (Ct. App. 2004), the court similarly found that the plaintiff had made a prima facie showing of malice sufficient to defeat the defendant's anti-SLAPP motion when it produced evidence that the defendant knew the underlying suit lacked any factual basis, took no depositions, and offered to accept $25,000 in exchange for dismissing the case. Id. at 796-97. "These facts could support a conclusion that [defendant] was simply trying to squeeze a settlement from [plaintiff] on a baseless case, and hence evidence of malice." Id. at 797.

The Tuckers argue that they, too, have produced evidence of malice with respect to Death Row and Interscope. Specifically, they rely on a two-page advertisement taken out in the October 1995 issue of The Source, a popular hip-hop magazine, which they characterize as "calling for Mrs. Tucker's elimination," 16 and derogatory references to Mrs. Tucker in the songs "How Do U Want It" and "Wonda Why They Call U Bitch" on Tupac's 1996 album All Eyez on Me.17 The Tuckers assert that a jury could infer from the ad and lyrics that Death Row and Interscope harbored hostility toward Mrs. Tucker and that they brought the underlying lawsuits for the improper purpose of chilling her anti-rap campaign.

[7] We disagree because under California law malice is shown through evidence of "the subjective mental state of the defendant in instituting the prior action." Downey Venture, 78 Cal. Rptr. 2d at 152 (internal quotation marks omitted) (emphasis added). This is not a case like Padres, where repeated actions were filed, or HMS Capital were no depositions were taken and questionable settlement tactics were pursued.

Here, even assuming the Tuckers produced sufficient evidence from which a jury could connect the ad in The Source or Tupac's lyrics to either Interscope or Death Row,18 such conduct occurred months after the suits were initiated and is simply not probative of either party's subjective intent in filing the underlying litigation. Placing an ad to promote Snoop Dogg's latest album, or calling out an individual in lyrics - even if done so in a shocking and degrading way - does not present any of the "hallmark[s]" of a lawsuit brought for an improper purpose. See Sierra Club, supra, 72 Cal. App. 4th at 1157. Nor does Zamos address this question.19 On this the law favors the early resolution of disputes, including voluntary dismissal of suits when the plaintiff becomes convinced he cannot prevail or otherwise chooses to forego the action. This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action. Leonardini v. Shell Oil Co., 264 Cal. Rptr. 883, 897-98 (Ct. App. 1989) (citation omitted).

[9] Finally, the Tuckers assert they can demonstrate malice on the ground that Interscope named only Mrs. Tucker (and Atlantic Ventures nominally) as a defendant. Given that the strongest evidence supporting Interscope's claims was the August 7 letter bearing Mrs. Tucker's name, the decision to name only Mrs. Tucker rather than other members of the NPC and its Entertainment Commission reflects a prudent litigation decision and is not evidence that the parties knowingly brought an action without probable cause or that they harbored especial ill will towards Mrs. Tucker.

[10] In sum, we agree with the district court's legal conclusion that the Tuckers did not produce sufficient evidence from which a jury could infer that either Death Row or Interscope pursued the underlying litigation out of malice.

C. Attorney-Defendants Ortner, Thomas, Kenner, and Paul Hastings

[11] To show that attorney-Defendants Ortner, Thomas, Kenner, and the law firm of Paul Hastings acted with malice in pursuing the underlying litigation on behalf of their clients, the Tuckers must do more than rely on the evidence relating to Death Row and Interscope's own purposes in initiating Death Row v. Tucker and Interscope v. Tucker. See Zeavin, 186 Cal. Rptr. at 548 (rejecting the "argument of joint liability of attorney and client for the conduct of each other where both are joined as defendants in a malicious prosecution action" and noting that "the client is not the agent of his attorney"); see also Morrison v. Rudolph, 126 Cal. Rptr. 2d 747, 752 (Ct. App. 2004) (" ‘Usually, the client imparts information upon which the attorney relies in determining whether probable cause exists for initiating a proceeding. The rule is that the attorney may rely on those statements as a basis for exercising judgment and providing advice, unless the client's representations are known to be false.' " (quoting Mallen & Smith, Legal Malpractice (5th ed. 2000) § 6.19, p. 620) (emphasis added)), disapproved of on other grounds by Zamos, 87 P.3d at 802. To ultimately prevail against any of the attorney-Defendants, the Tuckers must show "other, additional evidence" that demonstrates the attorney's own malice or knowing lack of probable cause. Swat-Fame, 101 Cal. App. 4th 613 at 634 (citing Downey Venture, 66 Cal. App. 4th at 498); see also Ross v. Kish, 51 Cal. Rptr. 3d 484, 497 (Ct. App. 2006) (holding that "because the evidence suggests [the attorney-defendant] knew the claims for breach of contract and legal malpractice lacked factual and legal support[,] . . . a trier of fact reasonably could infer [the defendant-attorney] filed the action with malice").

1. Kenner and the Claim for Abuse of Process

With respect to the abuse of process claim in Death Row v. Tucker, the Tuckers have raised a triable issue of fact under the above standard. A reasonable fact-finder could infer from Kenner's drafting of the complaint that Kenner knew the abuse of process claim lacked merit.20 In drafting the com- 20The fact that Kenner included multiple causes of action in the complaint, some of which were pled properly on the known facts at the time of filing, does not affect our determination that Kenner's abuse of process claim raises a triable issue of fact regarding malice. Under California law, "it is not necessary that the whole proceeding be utterly groundless, for, if groundless charges are maliciously and without probable cause, coupled plaint, Kenner alleged that Mrs. Tucker's "wrongful use of the criminal and civil justice system" was an abuse of process under California state law. The only fact in the complaint to support that allegation was that "[Suge] Knight was specifically threatened that as a result of [Tucker's] power and influence that [he] would spend the rest of his life in jail." Even if Kenner sincerely relied on his client's representations that such a threat was made by Tucker, Kenner's use of that allegation to state an abuse of process claim provides a triable issue as to whether Kenner did so with malice.

[12] This is because under well-established California law, the tort of abuse of process "requires misuse of a judicial process." Stolz v. Wong Commc'ns Ltd. P'ship, 25 Cal. App. 4th 1811, 1822 (Ct. App. 1994). It is a process that is "pursuant to authority of [a] court." Meadows v. Bakersfield Sav. & Loan Ass'n., 59 Cal. Rptr. 34, 37 (Ct. App. 1967); see id. ("[T]he essence of the tort ‘abuse of process' lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice."); see also 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 517, pp.767-68. To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the judicial process, and (2) committed "a willful act in the use of th[at] process not proper in the regular conduct of the proceedings." Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986). Misuse of an administrative proceeding - even one that is quasi judicial - does not support a claim for abuse of process. Stolz, 25 Cal. App. 4th at 1823-25 (noting that there is "no authority" that extends the tort to administrative proceedings). Nor is there any authority - Kenner's citation to Standing Committee on Discipline v. Ross not withstanding - that threats made outside of the judicial process can form the basis for an abuse of process claim. See Ross, 735 F.2d 1168, 1170 (9th Cir. 1984) (threatening criminal charges to obtain an advantage in an ongoing civil action subjected lawyer to disciplinary proceedings).

[13] Here, in drafting the abuse of process claim, Kenner relied on vague language about "wrongful use of the criminal and civil justice system" despite clearly established law that requires misuse of a court process.21 Moreover, he supported the claim with the mere factual assertion that Tucker would use her "influence" to ensure that Knight went to jail. These circumstances raise a genuine triable issue of fact as to Kenner's "subjective mental state . . . in instituting the [claim]." Downey Venture, 78 Cal. Rptr. 2d at 152. A fact-finder could reasonably infer from Kenner's drafting of the complaint that he did not believe the claim was valid when filed, or that the claim was instituted for an improper purpose.22

2. Ortner, Thomas, Paul Hastings and the Remaining Claims against Kenner

[14] With respect to Ortner, Thomas, Paul Hastings, and the remaining claims against Kenner, the Tuckers fail to pinpoint how any of the evidence in the record suggests that any of the attorney-Defendants filed Death Row v. Tucker and Interscope v. Tucker for a purpose other than honoring their clients' wishes. The Tuckers have not shown, with respect to these remaining claims, that the attorneys affirmatively knew that the factual bases for the underlying suits to be false at the time the suits were filed, cf. Morrison, 126 Cal. Rptr. 2d at 752. Nor have the Tuckers shown that any attorney-Defendant continued to prosecute any of the remaining claims after learning that they were not supported by probable cause. Zamos, 87 P.3d at 810. Given this lack of evidence, the district court correctly concluded that no reasonable trier of fact could find that the attorney-Defendants, with the exception of Kenner's claim for abuse of process, acted with malice when they filed the underlying litigation on behalf of Death Row and Interscope.23

V.

Loss of Consortium

Mr. Tucker's claim for loss of consortium was derivative of his wife's cause of action for malicious prosecution. The district court granted summary judgment in favor of all the Kenner and Interscope Defendants, in part, on the basis that Mr. Tucker's claim was tied to the malicious prosecution claims, which the court determined did not survive summary judgment. Were this the only basis for the court's disposition of this claim, reversal might well be warranted because we have concluded that the malicious prosecution claim must proceed as to Kenner. See Snyder v. Michael's Stores, Inc., 945 P.2d 781, 785 (Cal. 1997) ("One spouse cannot have a loss of consortium claim without a prior disabling injury to the other spouse.").

However, the district court also reached the merits of Mr. Tucker's claim and concluded on the limited evidentiary record that, "the harm . . . is more akin to a loss of society and companionship than the type of longstanding and debilitating impairment to the relationship necessary to support a loss of consortium." We can affirm the district court's grant of summary judgment on any basis supported by the record, and we agree.

To support a loss of consortium claim, marital spouses must allege that their partner suffered an injury that is "sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired." Molien v. Kaiser Found. Hosp., 616 P.2d 813, 823 (Cal. 1980); Anderson v. Northrop Corp., 250 Cal. Rptr. 189, 195 (Ct. App. 1988) (same). The injury may be physical or psychological, but psychological injury must "rise[ ] to the level of a ‘neurosis, psychosis, chronic depression, or phobia' [to be] sufficient to substantially disturb the marital relationship." Anderson, 250 Cal. Rptr. at 195, quoting Molien, 616 P.2d at 813.

[15] We agree with the district court that Mr. Tucker's testimony does not raise a triable issue as to psychological injury sufficiently serious or disabling as to raise an inference that his relationship with his wife was more than superficially impaired. Therefore, the district court properly granted Defendants' motion for summary judgement as to Mr. Tucker's loss of consortium claims.

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http://www.ca9.uscourts.gov/ca9/newopinions.nsf /E92123CDE3ABA867882573E9000280B1/$file/0556045.pdf?openelement

Outcome: With the exception of the abuse of process claim where the Tuckers raised a triable issue as to Kenner’s malice, the Tuckers did not produce evidence from which a jury could find malice, which is a necessary element of the malicious prosecution claim. Although Mrs. Tucker’s estate may be entitled to recover damages for malicious prosecution, the district court appropriately granted summary judgment for the Kenner and Interscope Defendants with respect to Mr. Tucker’s cause of action for loss of consortium. We therefore affirm the district court’s grant of summary judgment in Tucker v. Interscope, No. 05-56045, and affirm in part and reverse in part the district court’s grant of summary judgment in Tucker v. Kenner, No. 06-53376. 05-56045 AFFIRMED. 06-53376 AFFIRMED in part; REVERSED in part; REMANDED.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None