Tucker, Kenner, Death Row and Malicious Prosecution.

PAEZ, Circuit Judge:

In these consolidated malicious prosecution cases,1 William
Tucker and the Estate of Cynthia Dolores Tucker (“the Tuckers”),
2 appeal the district court’s grant of summary judgment
to all defendants in both cases. In Tucker v. Interscope, we
affirm the district court’s ruling as to all defendants. In Tucker
v. Kenner, we affirm the district court’s summary judgment as
to defendant Thomas; however, as to defendant Kenner we
affirm the district court’s ruling in part and reverse in part,
and remand for trial. We also affirm the district court’s grant
of summary judgment as to Mr. Tucker’s loss of consortium
claim in both cases.

I.

Overview

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

1After oral argument, we sua sponte consolidated the two cases on
appeal.

2Mrs. Tucker is now deceased. In an order dated January 27, 2006, the
district court granted Mr. Tucker’s motion to substitute himself, as Personal
Representative of the Estate of plaintiff Cynthia Delores Tucker, as
party plaintiff. On January 6, 2006, this court also substituted Mr. Tucker,
in his capacity as Personal Representative of the estate, as an appellant
pursuant to Fed. R. App. P. 43(a).

1792 ESTATE OF TUCKER v. INTERSCOPE RECORDS

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
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1793
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
3The Oxford English Dictionary (online ed. 2007) defines gangsta rap
as “a style of rap music, originating in south-central Los Angeles, featuring
aggressive, often misogynistic lyrics, typically centering on the violence
of gang culture.”

1794 ESTATE OF TUCKER v. INTERSCOPE RECORDS

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
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1795
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
1796 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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.”
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1797

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.

4

Atlantic was named as a nominal defendant and later dismissed on
Interscope’s motion.
1798 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1799

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.”).
6We consolidated Tucker v. Kenner with Tucker v. Interscope for purposes
of the appeal from the initial summary judgments.
1800 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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
7After the Tuckers timely appealed the district court’s judgment, Case
No. 05-56045, Death Row filed for bankruptcy. We granted a stay as to
Death Row but allowed the Tuckers to proceed after the bankruptcy court
granted their motion for relief from the automatic stay provided in 11
U.S.C. § 362(a). Although Death Row has been represented by counsel
throughout the duration of this appeal, it has never filed a brief and did not
make an appearance at oral argument.

ESTATE OF TUCKER v. INTERSCOPE RECORDS 1801

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.

8Judge Noonan’s partial concurrence and partial dissent states that “the
district court has ruled as a matter of law that Kenner lacked probable
cause to bring the claim for abuse of process.” Dissent at 1802. This statement
is not entirely accurate. In the memorandum accompanying the district
court’s order the judge said two different things—stating in
discussion that he “notes” that “Kenner lacked probable cause” to bring
the abuse of process claim, but then on the following page concluding that
“genuine issues of fact exist[ ] as to [probable cause], which preclude[ ]
finding as a matter of law in his favor.” Tucker v. Kenner, No. CV99-
06129 (C.D. Cal. filed Feb. 24, 2006). This ambiguity is of no consequence
to our ultimate disposition of the Tuckers’ claim against Kenner.
See discussion infra Part IV(C)(1).
1802 ESTATE OF TUCKER v. INTERSCOPE RECORDS

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 proceed-
9Nor need we revisit whether Mrs. Tucker suffered damages as a result
of the underlying litigation because we determined that there were such
damages in Tucker v. Kenner, 85 F. App’x 610 (9th Cir. Jan. 14, 2004)
(unpublished).
1804 ESTATE OF TUCKER v. INTERSCOPE RECORDS
ings 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
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1805
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
10The California Supreme Court explained in Sheldon Appel Co. that
“when . . . there is evidence that the defendant may have known that the
factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew” before the court can determine
the existence of probable cause as a matter of law. Id. at 508.
11See also id. at 506 (“the probable cause element calls on the trial court
to make an objective determination of the ‘reasonableness’ of the defendant’s
conduct, i.e., to determine whether, on the basis of the facts known
to the defendant, the institution of the prior action was legally tenable. The
resolution of that question of law calls for the application of an objective
standard to the facts on which the defendant acted.”) (rejecting Tool
Research & Eng’g Corp. v. Henigson, 120 Cal. Rptr. 291 (Ct. App.
1975)).
1806 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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
12To the contrary, the dissent’s use of Swat-Fame to insist that a knowing
lack of probable cause can be inferred from a mere lack of probable
cause is unfounded. Such an argument—as where the dissent argues that
the absence of an actual breach of contract (objective evidence of probable
cause) “could allow a jury to infer that Kenner knowingly brought [the
claim] without probable cause”—both contradicts the plain facts of that
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1807

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.
case and effectuates an end-run around the very distinction central to
Swat-Fame’s analysis. See Dissent at 1834, 1839; see also Dissent at 1835
(lack of probable cause for racketeering claim evinces “hate-filled malignancy”);
Dissent at 1833 (Kenner lacking probable cause for abuse of process
claim would allow the jury to infer not only that Death Row lacked
probable cause but also that such a circumstance could lead a jury to infer
that both Kenner and Death Row held “knowing assertion[s]” of malice
(emphasis added)). We respectfully disagree with the dissent’s characterization
of Swat-Fame.

13

The dissent overlooks this crucial distinction and therefore misreads
Zamos v. Stroud. The dissent offers Zamos for the proposition that “malice
in continuing a lawsuit is as actionable as malice in originating it.” Dissent
at 1837. But the dissent overlooks that the holding in Zamos did not concern
the post-filing conduct of the parties. Rather, Zamos held that an
attorney who continues to prosecute a suit that he knows is without basis
is liable for malicious prosecution where “any reasonable attorney would
agree [that the case is] totally and completely without merit” as a matter
of law. Zamos, 87 P.3d at 810. This holding is narrow. Weighing the effect
of newly acquired evidence on the continued prosecution of a lawsuit is
a matter peculiarly within the knowledge and competence of an attorney.
It is difficult, therefore, to see how Zamos says anything about how the
court should view Death Row’s role with respect to the ad in The Source
or Tupac’s lyrics, or how Zamos stands for the general proposition that
“malice in continuing a lawsuit is as actionable as malice in originating
it.”
1808 ESTATE OF TUCKER v. INTERSCOPE RECORDS

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
14The Tuckers mistakenly rely on Axline v. Saint John’s Hospital and
Health Center, 74 Cal. Rptr. 2d 385 (Ct. App. 1998), disapproved on other
grounds by Hassan v. Mercy Am. River Hosp., 74 P.3d 726 (Cal. 2003),
for the proposition that a malicious-prosecution plaintiff can defeat a
motion for summary judgment by alleging that the defendant knew that
the information upon which he or she based the underlying claim was
false. Axline, however, dealt with a dismissal following the trial court’s
sustaining of a demurrer, the California equivalent of a motion to dismiss
on the pleadings under Federal Rule of Civil Procedure 12(b)(6). See
Axline, 74 Cal. Rptr. 2d at 387 (“When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause of
action.”). For purposes of a demurrer, California courts treat all allegations
in the complaint as true. C & H Foods Co. v. Hartford Ins. Co., 211 Cal.
Rptr. 765, 768 (Ct. App. 1984). To defeat a summary judgment motion,
by contrast, the non-moving party “may not rest upon the mere allegations
or denials” in the pleadings. Fed. R. Civ. P. 56(e). The non-moving party
must establish the existence of a genuine factual dispute on the basis of
admissible evidence; bare allegations without evidentiary support are
insufficient to survive summary judgment.
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1809
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 judg-
15In Padres the defendant moved to strike the plaintiff’s malicious prosecution
claim under California Code of Civil Procedure section 425.16,
commonly known as the Strategic Lawsuit Against Public Participation
(“SLAPP”) statute. Defeating an anti-SLAPP motion requires the plaintiff
to “make a prima facie showing of facts that would be sufficient to sustain
a favorable judgment under the applicable evidentiary standard.” Padres,
8 Cal. Rptr. 3d at 594.
1810 ESTATE OF TUCKER v. INTERSCOPE RECORDS
ment. 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
16One page of the advertisement features in large type the words
“DEATH ROW RECORDS” and promotes Snoop Dogg’s latest album
“Dogg Food from Tha Dogg Pound.” The artists featured on the release
are listed, and include Dr. Dre, Daz, and Kurupt. The facing page, in the
same large type, features the words “FREEDOM FIGHTERS” and lists,
in a similar fashion, the names of twelve legendary civil rights advocates,
including Martin Luther King, Jr., Nelson Mandela, and Sojourner Truth.
Mrs. Tucker’s name appears at the bottom of the list slashed through with
a red line. The page also includes a quotation from King’s “I Have a
Dream Speech” and a quotation by Knight, dated August 28, 1995:
“ ‘Whether it’s freedom for our people or freedom for our people to say
what’s on their minds the fight lives on . . .’ ” (ellipsis in original). Knight
is identified as “CEO Death Row Records.”

17“How Do U Want It” addresses Mrs. Tucker as a “muthafucka” and
berates her because “instead of trying to help a nigga you destroy a brotha,
worst than the others.” In “U Wonda Why They Call U Bitch,” Tupac
raps, “Dear Ms. Delores [sic] Tucker, you keep stressin’ me, fuckin with
a motherfuckin’ mind. I figured you wanted to know, you know, why we
call them ho’s bitches. Maybe this might help you understand. It ain’t personal.
It’s strictly business, baby, strictly business.” These lyrics were the
subject of separate litigation. See Tucker v. Fischbein, 237 F.3d 275 (3d
Cir. 2001); Tucker v. MTS, Inc., 229 F.3d 1139 (3d Cir. 2000) (Table)
(unpublished).
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1811
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
18The Tuckers have failed to show a factual link between the ad in The
Source and Interscope. The ad itself is silent as to Interscope and, presumably,
for Interscope to be liable the Tuckers would have to show that Interscope
was directly involved in the ad, or that Interscope, as the exclusive
distributor of Death Row’s music, managed and controlled Death Row to
the extent that Death Row was a mere agent or instrumentality of Interscope,
see Marr v. Postal Union Life Ins. Co., 105 P.2d 649, 654-55 (Cal.
1940) (establishing factors by which a parent corporation may be liable for
the torts of a subsidiary). The Tuckers have failed to do either.
As to the derogatory references to Mrs. Tucker in All Eyez On Me, the
fact that Death Row produced the album and that Interscope distributed it
do not tie either defendant to the derogatory lyrics. No reasonable finder
of fact could infer from the lyrics that Death Row or Interscope harbored
malice towards Mrs. Tucker and filed the prior, underlying lawsuits for
that reason.

19Zamos is the only California authority cited by the dissent for the
proposition that “malice [by parties] in continuing a lawsuit is [ ] action-
1812 ESTATE OF TUCKER v. INTERSCOPE RECORDS
record, no California authority supports, nor could any reasonable
finder of fact infer, that this post-filing conduct was
probative of why the parties filed Interscope v. Tucker and
Death Row v. Tucker.

[8] The Tuckers next assert that a jury could infer improper
purpose from the fact that Death Row and Interscope prosecuted
the underlying lawsuits for three years without seeking
a hearing on their claims for injunctive relief and then voluntarily
dismissed the suits. In light of the Tuckers’ own discovery
delays, for which they were sanctioned, the mere fact that
the litigation never progressed to a hearing or trial on the merits
is insufficient to create a triable issue of fact regarding
malice. Nor do the voluntary dismissals in Death Row v.
Tucker and Interscope v. Tucker suggest that Death Row and
Interscope initiated those lawsuits believing their claims to be
meritless. Cf. Sierra Club, 85 Cal. Rptr. 2d at 740 (rejecting
argument that post-dismissal settlement was “[ ]relevant to the
issue of [defendant’s] state of mind for purposes of the malicious
prosecution”). The Tuckers produced no evidence to
undermine Defendants’ explanation that they dismissed Death
Row v. Tucker and Interscope v. Tucker upon the termination
of their contractual relationship, at which point most of the
underlying claims for injunctive relief became moot and the
underlying claims for damages, given that the Tuckers were
judgment-proof, became futile. Nor could a jury reasonably
infer that the statements in the Defendants’ motions that the
Tuckers were judgment-proof were somehow “windowdressing
meant to disguise the absence of any fact supporting
the outrageous claims asserted.” Dissent at 1832. To the contrary,
the California Court of Appeal has encouraged timely
dismissals, noting that:
able.” Dissent at 1837. But, the post-filing behavior at issue in Zamos
involved an attorney who continued to prosecute a case after discovering
facts demonstrating that the lawsuit had no merit. That case does not contemplate
whether post-filing conduct by the parties evinces malice in initiating
the suit.
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1813
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
1814 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1815
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 quasiwith
others which are well founded, they are not on that account less injurious,
and, therefore, [even one charge can] constitute a valid cause of
action.” Crowley v. Katleman, 881 P.2d 1083, 1088 (Cal. 1994) (internal
quotation marks omitted); see also Bertero v. Nat’l Gen. Corp., 529 P.2d
608 (Cal. 1974) (approving a jury instruction allowing the jury to find for
the plaintiff in a malicious prosecution action even if only one of the three
theories of liability pleaded in the underlying action lacked probable
cause).
1816 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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
21For this reason, although Kenner invites us to affirm the district
court’s grant of summary judgment on the basis that he had probable cause
to include the abuse of process claim in Death Row v. Tucker, he has
utterly failed, on this record, to demonstrate that he is entitled to judgment
as a matter of law. We therefore have no basis on which to affirm on this
alternative ground.

22We also note that the only additional evidence that Kenner obtained
after he filed the complaint, according to his own deposition, was that,
“[Tucker] apparently did call the Justice Department, I think Janet Reno
directly, and I think she called Alcohol, Tobacco and Firearms, and I think
she called the FBI . . . there [may have been] an investigation that followed.”
Even assuming arguendo that such complaints or investigations
occurred, the tort of abuse of process lies in the misuse of the power of
the court. Meadows, 59 Cal. Rptr. at 37. Under these circumstances, a reasonable
fact-finder could infer, as recognized in Zamos, that Kenner’s continued
prosecution of the abuse of process claim, after learning that it had
no merit, was evidence of a malicious intent. See also Sycamore Ridge
Apt’s v. Naumann, 69 Cal. Rptr. 3d 561, 579-81 (Ct. App. 2007) (applying
Zamos).
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1817
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
23The dissent provides no legal authority from a California court for its
assertion that a decision to file numerous claims is probative of malice.
Dissent at 1835-36. Nor does the “two against one” posture of the underlying
litigation, see id. at 1838, establish any triable issue regarding malice.
1818 ESTATE OF TUCKER v. INTERSCOPE RECORDS
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.
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1819

VI.

Conclusion

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.

In 05-56045, Defendants shall recover their costs on
appeal.

In 06-53376, the parties shall bear their own costs on
appeal.

NOONAN, Circuit Judge, concurring and dissenting:

The legal question to be decided is whether Tucker presented
sufficient evidence to create a triable issue of material
fact as to whether Death Row and Kenner had sued her with
malice when they began and continued a suit against her
charging her with racketeering involving extortion, mail and
1820 ESTATE OF TUCKER v. INTERSCOPE RECORDS
wire fraud; intentional interference with contract; and abuse
of process, and whether there was sufficient evidence of malice
to go to a jury as to whether Interscope, Ortner, and Paul,
Hastings had acted with malice when they began and continued
a suit against Tucker in which she was charged with conspiracy,
disrupting a contract, depriving Interscope of
property and extortion. The standard of review is that all
inferences are to be drawn in favor of Tucker, the nonmoving
party. It is evident, I believe, that Tucker submitted sufficient
evidence to defeat the summary judgments in favor of Death
Row Records, Interscope, Kenner, Ortner and Paul, Hastings.
A statement of the facts, followed by a statement of the law
will show the basis for this contention.

FACTS

The Cast of Principal Characters. The plaintiff, C. Delores
Tucker (Tucker), was a person of prominence in the African
American community, in the Democratic Party, and in the
Commonwealth of Pennsylvania. In the 1970’s, she was Secretary
of State of the Commonwealth — the first woman and
the first African American to serve in this office. She served
as Chair of the Democratic National Committee Black Caucus.
She was the first African American president of the
National Federation of Democratic Women. She crossed the
path of the defendants by her concern over the popularity and
promotion of gangsta rap and the impact of gangsta rap upon
the behavior of black youths and upon the reputation of the
black community. In 1995, she was 68 years-old.
Dionne Warwick (Warwick) had an established reputation
in rhythm and blues, soul, and soft contemporary music. Warwick’s
public service included raising money for AIDS
research, serving as the American Ambassador for Health in
the 1980’s, and acting as global ambassador for the UN’s
Food and Agriculture Organization in 2002. Her music
reached a wide public and struck a note very different from
that of gangsta rap, as in her signature song “Walk On By”:
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1821
If you see me walking down the street
And I start to cry each time we meet
Walk on by, walk on by
Make believe that you don’t see the tears
Just let me grieve in private ‘cause each time I see
you
I break down and cry
Death Row Records (Death Row), founded in 1991, is the
producer of gangsta rap and other music. Its revenues are estimated
to have been $900,000 in 1993 and to have been
$33,000,000 in 2002. It is currently in bankruptcy. Its cofounder
and CEO in the period 1993-1998, when the events
relative to this litigation occurred, was Suge Knight. Death
Row signed some of hip-hop’s biggest stars, including Tupac
Shakur, and dominated the rap industry in the mid-1990’s.
The company came to represent the West Coast rap movement
in the emerging East Coast-West Coast rap rivalry that
eventually led to the murders of Tupac Shakur in 1996 and
Tupac’s East Coast rival rapper, Biggie Smalls in 1997. At the
time relevant to this litigation, Death Row had a distribution
agreement with Interscope Records.
Marion “Suge” Knight, Jr. (Knight) was 28 years-old in
1993. He had been charged with and pled no contest to auto
theft, possessing a concealed weapon, attempted murder,
assault, and battery with a deadly weapon. He was convicted
of assault in 1992 and placed on probation. In 1996, he was
sentenced to nine years in prison for parole violation.
Knight’s criminal career after dates relevant to the litigation
is omitted.
Interscope Records was a California general partnership
consisting in 1993-1995 of Interscope Records, Inc. and
Atlantic Ventures, an affiliate of Time Warner.
Time Warner is a media and communications company
whose principal place of business is New York. Its total assets
1822 ESTATE OF TUCKER v. INTERSCOPE RECORDS
in 1995 were $3.72 billion. At the start of the underlying suits,
Time Warner owned a 50 percent share of Interscope Records
through its affiliate Atlantic Ventures.
David Elliot Kenner (Kenner) was in 1995 a 53 year-old
lawyer, a graduate of the law school of the University of
Southern California, engaged in the solo practice of law in
Encino, California.
Charles B. Ortner (Ortner) was 50 years old in 1995, had
graduated from Brooklyn Law School, and was an attorney
with Paul, Hastings.
Paul, Hastings, Janofsky & Walker (Paul, Hastings) is a
large law firm headquartered in Los Angeles and has 17 other
offices around the world employing 1200 attorneys.
Events. In 1993, when Tucker was the Chair of the National
Political Congress of Black Women (the NPC), she listened
to the plea of Warwick and Melba Moore, another wellknown
African American performer, to do something about
“what’s going on in Hollywood about our young people calling
us whores and bitches and disrespecting and denigrating
African American women.” Tucker followed up by checking
on whether this stuff was sold to children. If it was, she was
going to “put my marching shoes back on that I marched with
Dr. Martin Luther King hand in hand in Selma.” The stuff
was sold to children. Tucker began marching.
As president of the NPC, Tucker enlisted Warwick, Moore,
Voncier Alexander, and Terri Rossi to form an Entertainment
Commission, whose Mission Statement ran as follows:
The goals of the National Political Congress of
Black Women, Inc. (NPCBW) Entertainment Commission
(NPCBW Entertainment Commission) are
threefold:
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1823
• Seek to eliminate internal blockage in the industry
that currently and most obviously prevents
African Americans from the achievement of
equal opportunities as artists and those positions
of decision making.
• Mobilize African Americans in the industry to
join the struggle to resolve critical issues affecting
African American communities, particularly
in the areas of education and health, where so
many serve as role models and spokespersons.
• Offer strategies and solutions of reshaping and
maintaining positive images to preserve the dignity
and heritage of our youth . . . instead of continuously
exposing our youth to negative media
that distort their images of male/female relationships,
undermines the stability of our families,
communities and nation by encouraging violence,
abuse and sexism as acceptable behaviors, and
perpetuates the cycle of low self-esteem of African
American youth.
Tucker’s march had just started. She demonstrated outside
a Tower Records store to protest its sale of albums of gangsta
rap to minors. She gained support for her cause from a broad
spectrum of national leaders, including William Bennett, Joe
Lieberman, Tipper Gore, Bob Dole, and Sam Nunn. She testified
before the Federal Communications Commission and
before committees of Congress on the harm done by gangsta
rap. She attended a Time Warner stockholders’ meeting
where she offered the corporation’s executives $100 if they
would read gangsta rap aloud to the meeting. In short, Tucker
using the skills and smarts of a woman knowledgeable about
political endeavors and media responses, took advantage of
the democratic processes available to aroused citizens, and
made herself a terrific nuisance to a principal producer of
gangsta rap, Death Row.
1824 ESTATE OF TUCKER v. INTERSCOPE RECORDS
On July 7, 1995, the NPC convened its biennial convention
in Seattle. Suge Knight and Kenner as Death Row’s lawyer
met with Tucker and others. They discussed the formation of
a distribution company owned by blacks that could distribute
Death Row Records if Suge Knight eliminated the gangsta
rap.

On August 7, 1995, Tucker and others drafted a letter for
Knight’s signature, memorializing the July 7 meeting. In the
letter, Knight stated that Death Row “will cease and desist
from the production and distribution of misogynist, obscene
and pornographic music,” a preliminary condition for
Knight’s authorization of NPC “to negotiate an acceptable
contract relationship with Time Warner Inc. regarding the
production and distribution of our music products.” This letter
was unsigned and delivered to Knight. The next day, August
8, Warwick arranged a meeting attended by about ten persons,
some of them NPC members, not including Tucker, and four
persons from Time Warner. Michael Fuchs, an executive of
Warner Music, wanted to know if Knight had a contract with
Interscope to distribute his records. Fuchs had flown from
New York to meet Knight and “the purpose of the meeting
was for [Fuchs] to sort of grill Suge Knight on his involvement
or his relationship with Interscope.” Knight had been
invited, but wasn’t there. He telephoned repeatedly from
11:00 A.M. to 4:00 P.M. to say he was on the way. Knight
spent the day with his lawyer, Kenner, and James Iovine, then
the President of Interscope Records.

The following day, August 9, Kenner drafted a letter signed
by Kenner and Knight and addressed to Dionne Warwick. The
letter rejected the draft letter sent to Knight, affirmed his position
to stand by his music and musicians, and stated that
Tucker had misunderstood him or was misrepresenting what
he had said. The letter also rejected what it described as “Mr.
Fuchs’ 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.”
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1825

Kenner then conferred with Ortner, counsel for Interscope.
On August 15, 1995, Ortner filed a complaint on behalf of
Interscope against Tucker in the Central District of California.
The complaint alleged that beginning in mid-1995, for her
own “personal and financial gain,” Tucker “together with others
whose identities are [ ] unknown,” engaged in a conspiracy
to destroy Interscope by “committing extortion, threats,
and other unlawful acts.” Interscope’s partner, the Time Warner
affiliate, was also named but characterized as “a nominal
defendant.”

The first claim of the complaint was that as a result of
Tucker’s actions, “the contractual relationship between Interscope
and Death Row Records has been disrupted.” The second
claim sought a preliminary and permanent injunction
against these acts. The third claim was for such injunctions
against Tucker attempting to induce Time Warner and its
affiliate Atlantic Ventures to breach their fiduciary duty to
Interscope. The fourth claim sought similar injunctions
against Tucker engaging in unfair business practices and
unfair competition, by reason of which “Interscope has
incurred irreparable harm and has been deprived of its property
rights.” Compensatory, exemplary, and punitive damages
were sought on each claim, along with reasonable attorneys
fees. The complaint carried the name of three lawyers and the
firm name of Paul, Hastings. It was signed in Ortner’s name.
Two days later, on August 17, 1995, Kenner on behalf of
Death Row also filed in the Central District a complaint
against Tucker; the NPC; Time Warner; the Warner Music
Group; Michael Fuchs; and Gerald Levin for “multiple violations
of the Racketeer Influenced and Corrupt Organization
Act (RICO), 18 U.S.C. § 1961-68, as well as various other
violations of federal and state laws.” The allegations against
Tucker were stated to be against her as an individual and as
“a representative or officer of [the NPC].” Fuchs was identified
as chairman of Warner Music and Levin as chairman of
Time Warner. The defendants were alleged to be in a conspir-
1826 ESTATE OF TUCKER v. INTERSCOPE RECORDS
acy “to enrich the Defendants themselves.” The defendants
were said to have engaged in their unlawful scheme “[f]or the
past 13 months,” that is, since July, 1994. Their acts began
with “a smear campaign.” “This campaign, primarily directed
toward Defendant TIME WARNER, was and is an apparent
attempt to induce action through political pressure.” Tucker
“did not disclose her ulterior motive to replace and supplement
Interscope Records as the distributer of the recorded
output of Death Row Records. This commercial goal was hidden
and obscured by Defendant TUCKER.” Among the acts
charged against Tucker personally was her picketing of a
Time Warner stockholders’ meeting, her denouncing Time
Warner “for their support of music containing ‘explicit’ lyrics,
and its alleged denigration of African-American women.”
Tucker’s recruitment of William Bennett and Bob Dole to her
cause was also alleged against her.

The first cause of action set out was racketeering in violation
of 18 U.S.C. § 1962(b) and (c). Tucker, the NPC “and
others” unknown were said to have formed an enterprise to
establish “a record distribution company controlled by Defendant
TUCKER.” The enterprise was attempting to secure its
objective by a “pattern of racketeering activity.” The predicate
criminal acts included extortion, that is, an attempt to
obtain property from Death Row Records “by a wrongful use
of force or fear against Knight” resulting in “actual,” although
unknown, damages to Death Row. Mail fraud in violation of
18 U.S.C. § 1841 was another part of the pattern, a crime carried
out by the draft letter proposed for Knight’s signature on
August 7, 1995. Wire fraud in violation of 18 U.S.C. § 1343
was also part of the pattern, the fraud consisting in unspecified
uses of “the wires, radio, or televison communications”
with the result of actual, but unknown, damage to Death Row.
The defendants were further charged with criminal interference
with interstate commerce in violation of 18 U.S.C.
§ 1951-2, a crime alleged to have been committed simply “by
transporting persons and things in interstate commerce” in
furtherance of their scheme. A final element of the unlawful
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1827
pattern was the conspiracy of the defendants to achieve their
unlawful end.

The second cause of action alleged conspiracy in violation
of 18 U.S.C. § 1962(d) and sought treble damages for unspecified
harm. The third cause of action alleged a “conspiracy to
interfere with advantageous business relationships” broadly
said to be “in violation of federal and state law.” The fourth
cause of action was for intentional interference with contract
and prospective business advantage. The fifth cause of action
made “extortion” its gravamen. The sixth cause of action was
“unfair business practices”; the seventh was “abuse of process,”
by the defendants “threatening to fabricate and pursue
a course of conduct designed to cause criminal and civil liability
to Knight,” a crime amounting to “wrongful use of the
criminal and civil justice system.”
Death Row sought an injunction against all the defendants,
treble damages for the first and for the second causes of
action, and compensatory, exemplary, and punitive damages
for all causes of action.

In October 1995, two months after the litigation began, an
ad appeared in The Source, a hip-hop magazine, listing twelve
black freedom fighters such as Martin Luther King, Jr. and
Nelson Mandela. To this list a thirteenth name had been
added, that of Tucker. A red line was drawn through this
name. At the bottom of the ad were two quotes. The first was
attributed to Martin Luther King, Jr.: “When we let freedom
ring, . . . we will be able to speed up that day when all of
God’s children . . . will be able to join hands and sing . . .
‘Free at last! Free at last! Thank God Almighty, we are free
at last.’ ” A second quote followed under this first one.
Underneath this paragraph and parallel to it were these words:
“Whether it’s freedom for our people or freedom for our people
to say what’s on their minds the fight lives on . . . .” Following
this quotation, its author was identified as “Suge
Knight, CEO of Death Row Records.
1828 ESTATE OF TUCKER v. INTERSCOPE RECORDS

On October 4, 1995, Kenner wrote counsel for Tucker, stating
“Death Row, because of the actions of the parties, including
your clients, has been damaged and Death Row Records
has every right to proceed to have their case heard without
delay.” Death Row and Interscope made demand for the production
of documents including “without limitation, any communication,
notes of conversations, correspondence,
contracts, proposals, drafts and/or memoranda . . . that reflect,
refer, or relate to Interscope, Death Row and/or rap music”
and “[a]ll of your personal and business telephone records,
logs, messages and related documents, for the period of January
1, 1995 to the present.” In their capacity as plaintiffs, they
also took Tucker’s testimony for four days of depositions. A
month later, they took another four days, so that the total testimony
came to 1,700 pages contained in eight volumes. In
1996, approximately thirteen months later, they took another
three days of depositions from Tucker, adding three more volumes
to the total.

In February 1996, Death Row produced and Interscope distributed
an album sung by Tupac Shakur. One song, “How Do
U Want It?” asked:
Now tell me is it cool to fuck?
Did you think I came to talk?
The rapper went on in the course of his song to say:
Delores Tucker, yous a muthafucka,
Instead of trying to help a nigga you
Destroy a brotha, worst than the others,
Bill Clinton, Mr. Bob Dole, you too old
To understand the way the game’s told.
You lame soul, I got to hit you with the high facts.
When some release makin’ millions . . . .
A second song on the album, “Wonda Why They Call U
Bitch,” concluded:
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1829
Dear Ms. Delores Tucker, you keep stressin’ me,
Fuckin’ with a motherfuckin’ mind.
I figured you wanted to know, you know,
Why we call them ho’s bitches.
Maybe this might help you understand.
It ain’t personal.
It’s strictly business, baby, strictly business.
So if u wonda why we call u bitch
U wonda why we call u bitch
If u wonda why we call u bitch,
U wonda why we call u bitch.
Trial was finally set, for October 27, 1998. On June 1,
1998, Death Row filed a notice of motion to dismiss its entire
action. The reasons given were that Death Row and Interscope
had severed their relationship and Death Row no longer
needed injunctive relief to protect it and that investigation had
shown that Tucker and the NPC lacked money to satisfy the
damages to which Death Row was entitled. Interscope also
moved for dismissal of its action. On June 18, 1998, the
motions were granted.
PROCEEDINGS
Judge Paez’s opinion accurately states the beginning and
course of the two cases now consolidated for decision. Tucker
died at the age of 78 in 2005; her husband, William Tucker,
is now her personal representative. Death Row is in bankruptcy,
and its bankruptcy estate is being managed by a courtappointed
trustee.

The district court’s ruling in the Kenner case was as follows:
While the court notes that Kenner lacked probable
cause to pursue a claim of abuse of process in the
underlying litigation, the evidence Plaintiffs offer in
addition to this finding is insufficient to show that
1830 ESTATE OF TUCKER v. INTERSCOPE RECORDS
Kenner acted with malice. Plaintiffs have offered no
evidence to support their allegation that Kenner
knew no threats were levied against his client. Moreover,
Plaintiffs’ assertion is inconsistent with Kenner’s
deposition testimony as well as Mrs. Tucker’s
admission that she did contact the Justice Department
and the FBI regarding Death Row Records.
Lastly, Plaintiffs’ allegations about Kenner’s conduct
during the course of litigation amount to nothing
more than mere speculation and fail to
demonstrate actual hostility or ill will. A reasonable
jury could not return a verdict in Plaintiffs’ favor on
this evidence. As such, summary judgment is warranted
as to this issue.

The district court added:

Defendant Kenner also seeks clarification as to the
court’s ruling regarding probable cause and favorable
termination. The court advises Defendant that
genuine issues of fact existed as to both issues which
precluded a finding as a matter of law in his favor.
In the Interscope case, the court found that genuine issues
of material fact remained as to Interscope Records’ probable
cause for inducement to breach contract and inducement to
breach fiduciary duty as well as Death Row’s probable cause
to file claims for RICO violations, extortion, and abuse of
process.

ANALYSIS

In these diversity cases, it is uncontested that California law
should govern. We consider them separately except to note
that both suits brought by the defendants against Tucker terminated
in her favor. A necessary element of a case for malicious
prosecution is judgment against the plaintiffs in the suits
that they maliciously launched. Under California law a volun-
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1831
tary dismissal accepted by the court constitutes such a judgment
even though the phrase “with prejudice” is not added to
the dismissal. Fuentes v. Berry, 38 Cal. App. 4th 1800, 1808
(1995).

Tucker v. Kenner. On the evidence presented by Tucker, a
jury could conclude that Kenner lacked probable cause and
filed and pursued Death Row’s action against Tucker and the
NPC with malice.

First, as to the objective lack of probable cause: The district
court has already ruled that there are triable issues of fact as
to probable cause. Death Row and Kenner have not appealed
that ruling. It may, therefore, seem to be a work of supererogation
to review the counts of the Death Row complaint in
terms of their lack of any foundation in fact. That, however,
is not the case. Lack of probable cause can be an element in
the proof of malice. Even more significantly, knowledge of
the lack of probable cause is itself proof from which a jury
may infer malice. Swat-Fame, Inc. v. Goldstein, 101 Cal.
App. 4th 613, 634 (2002). Reasons exist, therefore, to review
the lack of probable cause for many of the claims of the quondam
plaintiffs and the likelihood that the claims were knowingly
brought without cause.

First, after three years of investigation, discovery, and
deposition-taking, Kenner voluntarily withdrew Death Row’s
action against Tucker, including the claims that she had committed
a variety of federal and state crimes. A jury could reasonably
infer that the stated reason that Tucker and the NPC
were judgment-proof was window-dressing meant to disguise
the absence of any fact supporting the outrageous claims
asserted. Second, a jury could make an inference from the difference
between the Interscope and Death Row complaints.
Although both companies and their lawyers were in communication
in preparing their respective suits, and although both
corporations had the same information about Tucker and the
same reasons to hate her, Interscope did not charge Tucker
1832 ESTATE OF TUCKER v. INTERSCOPE RECORDS
with racketeering. If there were any evidence of racketeering
in possession of Death Row, a jury could infer that it would
have been shared with Interscope. The absence of racketeering
charges in Interscope’s complaint would permit a rational
trier of fact to conclude that, more probably than not, Death
Row and Kenner knew no facts to support their racketeering
claims. Third, a jury could also infer from the extraordinary
vagueness of several of Death Row’s criminal charges that
Kenner was merely using boiler plate without possession of
any facts on which to act. A trier of fact could consider, for
example, the failure to identify any actual harm caused by the
conduct complained of; the utterly unspecified reference to
“uses” of “the wires”; the strange charge of criminal interference
in interstate commerce by the transport of “persons and
things.” Fourth, a jury could also infer that the racketeering
charges against the NPC were without any foundation and
without any purpose except to make out Tucker as a scheming
and faithless fiduciary who would manipulate an educational
group for her own private profit.

Fifth, the district court has ruled as a matter of law that
Kenner lacked probable cause to bring the claim for abuse of
process. This ruling has not been appealed and is the law of
the case. A jury could infer that if Kenner lacked probable
cause so did Death Row. Further, a jury could infer that Kenner
knew there was no probable cause for this claim. As a
lawyer, Kenner must have known that an abuse of process “is
an act done in the name of the court and under its authority
for the purpose of perpetrating an injustice,” and thus, the
essence of an abuse of process claim “lies in the misuse of the
power of the court.” Meadows v. Bakersfield Sav. & Loan
Ass’n, 250 Cal. App. 2d 749, 753 (1967). Tucker had brought
no suit against his client. A jury could well infer that the
knowing assertion of this claim manifested malice.
Similarly, an action for intentional interference with contract
requires an actual breach or disruption of the contractual
relationship. Quelimane Co. v. Stewart Title Guar. Co., 960
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1833
P.2d 513, 530 (Cal. 1998). The absence of any evidence of an
actual breach could allow a jury to infer that Kenner knowingly
brought and continued Death Row’s actions without
probable cause.

Finally, that the August 7, 1995 letter authorized the NPC,
and not Tucker, to “negotiate an acceptable contract relationship”
on behalf of Death Row suggests that Tucker could not
have harbored a ulterior motive of personal enrichment as
alleged in Death Row’s complaint. A jury could infer from
this letter that Kenner had no probable cause and therefore
harbored malice in attributing hidden motives to Tucker
where no such evidence existed.

As to evidence from which a rational trier of fact could
infer malice, Swat-Fame, 101 Cal. App. 4th at 634, shows that
the knowing bringing of a baseless claim is sufficient for a
jury to conclude that a case was brought maliciously. Second,
the charges against Tucker evince hatred. A 68 year-old civic
leader is charged with a spate of offenses that would be
appropriate to an indictment of a mafioso. She is an extortionist
and a racketeer. She has organized a racketeering enterprise
to enrich herself. Malice gleams from Death Row’s
complaint.

Third, the allegations in the complaint specifically set out
the criminal conduct charged to Tucker as beginning in 1994.
In their brief on appeal the defendants acknowledge that
Tucker had a perfect right under the First Amendment to agitate
against gangsta rap and to ask others to join in her cause.
That is precisely what she was doing in 1994. Not even a
shred of evidence exists to show that this veteran of the civil
rights movement was acting for her personal profit on any
occasion in 1994. What Tucker was doing, both in 1994 and
in 1995, a jury could find, was what Bob Dole, Tipper Gore
and Joe Lieberman were doing — telling Time Warner and its
affiliate, “Get this stuff off the air. You should be deeply
ashamed. You are maligning women. You are promoting law-
1834 ESTATE OF TUCKER v. INTERSCOPE RECORDS
lessness. You are denigrating an entire ethnic community. For
heaven’s sake and for the sake of your own reputation, get out
of it.” Warwick, a deeply respected singer, had taken the lead.
Yet Tucker alone was charged with racketeering and a pattern
of racketeering reaching back to the period of her acknowledged
First Amendment activity. Her profit-seeking motive is
alleged to have been “hidden.” A jury could conclude that a
hidden motive was an imagined motive, a motive maliciously
conjured up to bolster Death Row’s complaint. Only malicious
minds, a jury might decide, could so construe her toughminded
and democratic strategy.

Fourth, former education Secretary William Bennett is
named as a recruit of Tucker. His recruitment is an asserted
part of the pattern of racketeering. The dogged determination
to do in Tucker is manifestly malicious when her wooing of
a senior American political leader is asserted to constitute
criminal behavior.

Fifth, the complaint alleged that Levin, the CEO of Time
Warner, and Fuchs, the CEO of Warner Music, were engaged
in the racketeering conspiracy to enrich Tucker. The sheer
implausibility of this claim, unsupported by any specific allegations,
could lead a jury to infer malice. Hate-filled malignancy,
a jury could infer, had led to the fantastic supposition
that a multi-billion dollar corporation sought to enrich Tucker
by cooperating in her racketeering.

Sixth, a jury could infer malice from the way Death Row
and its counsel conducted the case — first asserting a need for
a prompt trial but at no point moving for a restraining order
or preliminary injunction; besieging Tucker with an oppressive
demand for discovery; harassing Tucker with days of
deposition-taking, while taking very little deposition testimony
from Warwick, who participated in the August meeting;
and taking no depositions from Fuchs and Levin, alleged to
be Tucker’s partners in crime.
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1835

Seventh, three publications outside of the Death Row complaint
shed light on Death Row’s motives. The first is the ad
in The Source. Tucker believed that the ad called for her
death. She was deposed as to the pain it caused her and the
precautions she felt obliged to take to prevent being killed. No
direct evidence was submitted establishing that Death Row
paid for the ad. A jury could take into account two facts: (1)
The concluding quotation was ascribed to Knight in his corporate
capacity. This quotation is paired with the quotation of
Martin Luther King, Jr.; (2) Knight had reason to hate Tucker.
This full page ad improbably put Knight on par with King,
pointedly identified Knight as Death Row’s CEO, and marked
Tucker, at least symbolically, for destruction. The inference
could rationally be drawn that the ad was inserted in The
Source by Death Row and was significant evidence of its malice
as it continued its suit against Tucker. The two songs
made by Tupac under the Death Row record label during the
litigation demonstrate the strongest antipathy to Tucker, who
is assailed in vile language. A jury could well conclude, If this
evidence does not exhibit malice, what would?
Kenner is not personally responsible for the ad or the lyrics.
He is responsible for setting out the malicious imaginings of
a client with such hate, or so a jury could conclude. Kenner
could be held responsible for the irresponsible assortment of
criminal charges in the complaint against Tucker that he
drafted and filed. Despite his extensive experience with the
criminal law, Knight does not appear to have had the education
necessary to conceive of the RICO charges and to express
Tucker’s alleged crimes in words fitted to the statutory provisions
invoked. A jury could well conclude that the special
malice of the racketeering allegations owed their origin and
presentation to the knowledge and skills of Kenner. An attorney
cannot escape liability by saying, “I was only a hired gun.
My client and its CEO may have been malicious, but I was
not.” Kenner could be found to have begun and continued the
suit sharing the malice of his client and to have expressed
malice in the drafting of the complaint.
1836 ESTATE OF TUCKER v. INTERSCOPE RECORDS
It is argued that the ad in The Source and Tupac’s lyrics are
not evidence of malice at the start of the suit because they
appeared after the suit was started. For two reasons, this argument
is unconvincing. First, a jury could well infer that the
hatred of Tucker displayed in the ad and in the lyrics was not
a sudden development arising out of the suit, but the overt
demonstration of what had smouldered and been fueled by
anger at Tucker’s campaign against gangsta rap. Second, it is
good California law that malice in continuing a lawsuit is as
actionable as malice in originating it. Zamos v. Stroud, 87
P.3d 802, 810 (Cal. 2004). The ad and the lyrics demonstrate
malice in the prosecution of the suit.
It has been suggested that the ad can be read as the personal
act of Suge Knight, not of Death Row. Again that argument
cannot be sustained. First, Knight’s corporate title was used
to identify him. Second, Knight — as far as this record shows
— was Death Row. When he appears in the record, he is bargaining,
complaining, negotiating for Death Row without reference
to its directors or to any corporate control. He is it, or
so a jury could reasonably infer.

It has been suggested that Death Row is not responsible for
Tupac’s lyrics. The suggestion is one possible reading of the
evidence. But a jury could reasonably infer that the extraordinarily
pointed references to Tucker did not arise out of any
special animus against her on Tupac’s part but were designed
by Death Row and its CEO to bring their adversary into a
public pillory.
Tucker v. Interscope, Death Row, Ortner, and Paul, Hastings.
Tucker sued Interscope, Death Row, Ortner and Paul,
Hastings on five grounds that have been winnowed in the
course of its action and an appeal consists in a single claim
of malicious prosecution. Again, it is desirable to examine the
elements of the claim that consist in the lack of probable
cause as well as the presence of malice. A jury could infer
Death Row’s malice and lack of probable cause from the
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1837
same evidence showing Kenner’s malice and lack of probable
cause, as discussed earlier. What of the acts of Interscope
taken by itself and of the lawyers representing Interscope in
the litigation against Tucker?

Interscope’s complaint alleged that Tucker was a conspirator
engaged in extortion and other unlawful acts for her own
profit. The few facts stated in the complaint focused on hazy
and inconclusive accounts of the July 1995 meeting and on
accounts of the August 1995 meeting held by Warwick from
which Knight, Kenner, and Tucker were all absent. A jury
could infer that not only was probable cause lacking for these
baseless charges, but that Interscope and its lawyers, Ortner
and his firm, knew that the charges were baseless.
Second, a theory of both complaints was that Tucker was
using her leverage with Time Warner, no doubt sensitive to
adverse publicity, to break Interscope’s contract with Death
Row. In fact, however, in September 1995, less than two
months afer the complaints were filed, Time Warner terminated
the only investment it had in the joint venture with
Interscope. Despite the absence now of any channel by which
Tucker could affect Death Row’s relation to Interscope, the
suit continued for three years without a foundational fact.
Third, the plaintiffs lined up against Tucker were Death
Row and Interscope. Yet she was alleged to be disrupting
their relation. The improbability of the two plaintiffs being set
against each other by Tucker would permit a jury to infer that
the suits were continued after they had lost even a smidgen of
probability.

Fourth, the claim that the Interscope-Death Row relationship
had been disrupted was palpably untrue. The contract
between them had not been breached. Their counsel, Ortner
and Kenner, worked hand and glove together, or so the jury
might infer from the coordination of the complaints. The allegation
that Interscope had “incurred irreparable harm” and
1838 ESTATE OF TUCKER v. INTERSCOPE RECORDS
had been “deprived of its property rights” was unsupported
and inferably known by the Interscope attorneys to be untrue.

Conclusion. The evidence in this record, interpreted as it
must be, in favor of the nonmoving party is sufficient to
require the reversal of summary judgment for Kenner, Death
Row, Interscope, Ortner, and Paul, Hastings. As a matter of
law, their cases against her ended with prejudice. The law of
this case is that there are triable issues as to probable cause.
Tucker’s evidence affords multiple instances where a jury
could infer, from what Death Row, Kenner, Interscope, and
Ortner said and did, that the suits brought and maintained
against Tucker were knowingly and therefore maliciously
filed without probable cause and were prosecuted with malice
for three years in an oppressive way, long after a scintilla of
cause had been extinguished.

Two issues appear to divide the court. The first is whether
malicious prosecution can be shown by malicious acts by a
defendant performed after the defendant has brought the lawsuit
that the plaintiff complains of. Judge Paez’s opinion
seems to suggest that malice in the mind of the defendant can
only be shown by what is alleged in his complaint. That view
of the law is mistaken. Malice may be shown by malicious
acts subsequent to the complaint in the continuation of the
lawsuit. See Zamos, 87 P.3d 802; Del Rio v. Jetton, 55 Cal.
App. 4th 30, 36 (1997).

In Zamos, the court listed the elements of a suit for malicious
prosecution, including the requirement that the suit was
“initiated with malice.” Zamos, 87 P.3d at 807 (citations omitted)
(italics in original). The court noted that the defendants
in the case before it argued that continuing to prosecute a lawsuit
discovered to lack probable cause did not constitute the
tort of malicious prosecution. Id. The court rejected the defendants’
argument. Its holding stated: “We conclude an attorney
may be held liable for continuing to prosecute a lawsuit discovered
to lack probable cause.” Id. at 803. As in Swat-Fame,
ESTATE OF TUCKER v. INTERSCOPE RECORDS 1839
knowledge of the lack of probable cause (in the court’s phrase
“discovery” of this lack) supplies the malice that supports the
tort.

The second division is on whether knowing lack of probable
cause may constitute proof of malice. Stressing the objective
character of probable cause, Judge Paez’s opinion
suggests that absence of probable cause is not relevant to malice.
But when a suit is brought without probable cause and the
allegator knows that he has no probable cause, a window is
opened to the mind of the allegator. California law clearly
states that although lack of probable cause alone does not support
an inference of malice, “malice may still be inferred
when a party knowingly brings an action without probable
cause.” Swat-Fame, 101 Cal. App. 4th at 634 (citation omitted)
(italics in original). Knowing that he has no basis for
what he alleges, the allegator manifests malice in the hateful
acts he imagines and attributes to the enemy he is pursuing.
In discussing Kenner’s malice in charging Tucker with
abuse of process, Judge Paez observes: a “fact-finder could
reasonably infer from Kenner’s drafting of the complaint
[charging Tucker with abuse of process] that he did not
believe the claim was valid when filed, or that the claim was
instituted for an improper purpose.” I agree with this reasoning,
concur in Judge Paez’s conclusion as to the vitality of
Tucker’s claim for malicious prosecution in Kenner’s charge
of abuse of process and wonder why the same rule does not
apply to the other claims advanced by the defendants where
inferably they know they had no probable cause. I do not
understand how this court, years after the original litigation,
is capable of determining the state of mind of the defendants
here. That is a question of fact. As a question of fact it is for
a jury to decide.

In both our cases, an experienced fighter for civil rights,
acting to defend her community, was charged with extortion,
with seeking to enrich herself, and exploiting her own organi-
1840 ESTATE OF TUCKER v. INTERSCOPE RECORDS
zation for her profit. Further, in the case brought by Kenner
she was accused of committing major federal crimes nonexistent
in fact and so vaguely alleged as to show on the face of
the complaint that the lawyer had conjured them up or simply
filled in a blank form. The court is in no position to conclude
that the lawyers and their clients believed that these charges
were true, rather than unscrupulous inventions. Indeed almost
anyone would doubt that sophisticated lawyers could have
known anything except that the charges were false. In any
event, it is not for us now to decide this question, but to allow
a jury to determine whether the lawsuits against Tucker were
brought without probable cause and with knowledge of the
absence of probable cause and therefore with malice. A court
of the United States presented with a record as the one before
us should not walk on by.