I respectfully dissent.
One can sympathize with any party that is sued and prevails. The cost in money and reputation can be significant. (Here, the Mint* 1 was fortunate to have recovered its attorney fees incurred in defending the claims and an additional sum from the party that sued it.) But that does not mean that the lawyers who represented the losing party should be fair game.
I hope there is not a diminishing appreciation by the judiciary for the increasing hazards and pitfalls faced by those in private legal practice. “With increasing frequency, disgruntled defendants have brought claims for malicious prosecution and abuse of process against attorneys for opposing parties.” (Crystal, Limitations on Zealous Representation in an Adversarial System (1997) 32 Wake Forest L.Rev. 671, 687 (Crystal); see Wasserman, Malicious Prosecution: The Disfavored Tort That Will Not Go Away (Aug. 11, 1999) 4 Andrews Sec. Litig. & Reg. Rep. No. 23, p. 13 [“there may have been more malicious prosecution opinions published in the past several years by California courts than on almost any other subject involving attorney liability claims”].) An attorney who asserts claims on behalf of a client should not be exposed to a malicious prosecution claim just because those claims do not fall within the four comers of established case precedent or the specific words of a statute, even though the claims are supported by defensible analogical reasoning from existing authority and evidence that arguably permits an inference of the ultimate facts to be proved.
As I discuss, the trial court correctly determined that Manatt had tenable claims and thus probable cause. The burden was on the Mint to prove that *354Manatt lacked probable cause to assert its clients’ claims in the federal action. The Mint has not established that the trial court erred in concluding that the Mint failed to meet that burden. The burdens of production and persuasion should not be shifted to Manatt.
Moreover, the record is inadequate to support the Mint’s position that Manatt was not entitled to a directed verdict on the issue of probable cause. As reflected in the Mint’s request for judicial notice, properly denied by this court, Manatt submitted literally volumes of evidence in support of the claims during the course of the federal action. That evidence was not before the trial court, nor is it before this court. One cannot conclude that the evidence was legally untenable when one does not know what that evidence was. The Mint’s failure to present that evidence to the trial court compelled the trial court to rule on Manatt’s motion for nonsuit that, as a matter of law, the Mint did not establish that Manatt lacked probable cause in the underlying action. I would affirm the judgment.
A. Malicious Prosecution and the Element of Probable Cause
It might be useful to review some of the fundamental principles regarding the tort of malicious prosecution and the related law governing the ethical and legal obligations of lawyers presenting their clients’ civil claims to a court.2 (See Sheldon Appel, supra, 47 Cal.3d at p. 872; see also Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 62-63 [49 Cal.Rptr.2d 551] {Hufstedler).)
1. The Tort of Malicious Prosecution
The tort of malicious prosecution serves two distinct purposes. First, the tort is one aspect of a body of law intended to deter frivolous or malicious lawsuits. (See generally Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis (1979) 88 Yale LJ. 1218, 1221-1232, cited in Sheldon Appel, supra, 47 Cal.3d at p. 873.) Similar objectives are also served by court rules and statutes that authorize court-imposed sanctions against parties and their attorneys for asserting frivolous or *355vexatious claims,3 and by ethics rules that subject attorneys to professional discipline for advocating such claims on behalf of their clients.4 (See Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 314-315, 105 Cal.Rptr.2d 790, 20 P.3d 1086; Sheldon Appel, supra, 47 Cal.3d at pp. 873-874; see generally Wade, supra, 14 Hofstra L.Rev. at pp. 433-436; 1 Mallen & Smith, Legal Malpractice (2010 ed.) § 6:17, p. 804 (Mallen & Smith) [“the most useful and meaningful tests [of probable cause in a malicious prosecution action] derive from an examination of an attorney’s ethical and professional obligations to a client”].)5
Second, the tort action for malicious prosecution is “intended to protect an individual’s interest ‘in freedom from unjustifiable and unreasonable litigation’ [citation] . . . .” (Sheldon Appel, supra, 47 Cal.3d at p. 878; see also Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740 [62 Cal.Rptr.3d 155, 161 P.3d 527]; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51 [118 Cal.Rptr. 184, 529 P.2d 608] (Bertero); Hufstedler, supra, 42 Cal.App.4th at p. 65.) “Frivolous lawsuits cause appreciable harm to many persons, and in many ways. The person against whom the groundless suit is brought is subjected to serious harassment and inconvenience, pecuniary loss through necessary attorney’s fees, deprival of time from his business or profession, and, in some cases, harm to reputation and even physical damage to person or property.” (Wade, supra, 14 Hofstra L.Rev. at p. 433.) The tort remedy permits the party so injured to obtain compensation from the litigants or attorneys who instigate frivolous claims with malice. (Sheldon Appel, supra, 47 Cal.3d at p. 871.)
Providing a tort remedy for malicious prosecution, however, has significant drawbacks. “[Cjourts have long recognized that the tort has the potential to impose an undue ‘chilling effect’ on the ordinary citizen’s willingness to . . . bring a civil dispute to court . . . .” (Sheldon Appel, supra, 47 Cal.3d at p. 872; accord, Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817 [123 Cal.Rptr.2d 19, 50 P.3d 733] (Wilson), superseded by statute on another point as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 545-550 [59 Cal.Rptr.3d 109]; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, *3561018 [85 Cal.Rptr.3d 838] (Nichols); Paulus, supra, 139 Cal.App.4th at p. 674.) “[I]t is . . . important ‘that an individual be free to protect personal rights by resort to the courts without the threat of a countersuit for damages in the event the suit is unsuccessful’ [citation], and courts have generally been sensitive to the need to carefully limit tort liability in the context of malicious prosecution of a civil proceeding . . . .” (Sheldon Appel, supra, 47 Cal.3d at p. 872, fn. 5.)
Moreover, the adversary system is premised on the notion that an advocate may zealously protect his or her client’s interests. “Lawyers in an adversarial system are free to inflict hard blows on their opponents as part of their responsibility to zealously guard the interests of their clients . . . .” (Caro v. Smith (1997) 59 Cal.App.4th 725, 739 [69 Cal.Rptr.2d 306].) As one authority has observed, “One of the most serious threats to zealous advocacy is the imposition of sanctions against lawyers who file pleadings or make arguments that are deemed to be ‘frivolous.’ ” (Freedman & Smith, Understanding Lawyer’s Ethics (2d ed. 2002) § 4.07, p. 93.) Attorneys fearful of a retaliatory lawsuit “might temper the zealousness of their advocacy to avoid increasing the incentive for the adversary to pursue” such a suit. (Kracht v. Perrin, Gartland & Doyle (1990) 219 Cal.App.3d 1019, 1028 [268 Cal.Rptr. 637] [discussing assignment of malpractice claims to former adversaries]; see Crystal, supra, 32 Wake Forest L.Rev. at pp. 687-688.) Moreover, “overuse of the charge of fiivolousness would chill not only the zeal but the creativity of lawyers who operate on the leading edge of legal development. Even ‘settled’ legal questions must be open to challenge at some point, or else the law would stultify.” (2 Hazard et al., The Law of Lawyering (3d ed. 2010) § 27.12, p. 27-26, italics added (Hazard & Hodes); see also 1 Mallen & Smith, supra, § 6:17, pp. 804-805.) “The law ... is not immutable. It remains in flux to allow for constructive change through the efforts of diligent and conscientious lawyers. It is through legal imagination and ingenuity in pleading that evolution of the law occurs. Whether we examine the law of torts and the development of strict liability for product defect [citation] or family law and the division of retirement benefits as community property [citation], we note the effect of the dynamics of the legal process. Statutes which withstand constitutional challenge in one year may be declared unconstitutional in later years.” {Umansky v. Urquhart (1978) 84 Cal.App.3d 368, 372 [148 Cal.Rptr. 547].)
Because of these potential chilling effects and the general “antipathy for litigation spawning litigation” (Brennan v. Tremco Inc., supra, 25 Cal.4th at p. 315), the tort of malicious prosecution “has traditionally been regarded as a disfavored cause of action.” (Sheldon Appel, supra, 474 Cal.3d at p. 872; accord, Zamos v. Stroud (2004) 32 Cal.4th 958, 966 [12 Cal.Rptr.3d 54, 87 P.3d 802] (Zamos); Wilson, supra, 28 Cal.4th at p. 817; Nichols, supra, 168 *357Cal.App.4th at p. 1018; Paulus, supra, 139 Cal.App.4th at p. 674.) Accordingly, “the elements of the tort historically have been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim.” (Sheldon Appel, supra, 47 Cal.3d at p. 872.) One of the “carefully circumscribed” elements a malicious prosecution plaintiff must prove—and the only element at issue on this appeal is—that the defendant lacked probable cause to bring the underlying claim. (Id. at p. 871.)
2. The Lack of Probable Cause Element
Professor Wade stated that lack of probable cause is “[p]erhaps the most vital single requirement” of a malicious prosecution claim because, when combined with the element of malice, it “identifies] the real ‘sting’ of the tortious conduct.” (Wade, supra, 14 Hofstra L.Rev. at p. 444.) Our Supreme Court has stated that it is the “strict requirements” of the probable-cause element that help ameliorate the negative aspects of the tort. “ ‘Concerns over the potential chilling effect [of malicious prosecution claims] are readily assuaged by stringent enforcement of the probable cause element of the malicious prosecution tort.’ [Citation.] It is up to malicious prosecution plaintiffs to ensure that their lawsuits can survive the rigorous judicial scrutiny given to such actions.” (Siebel v. Mittlesteadt, supra, 41 Cal.4th at p. 745, italics added, fn. omitted.) Accordingly, it is worthwhile to examine what “lack probable cause” means and what it does not mean.
In Sheldon Appel, supra, 47 Cal.3d at pages 885-886, our Supreme Court analogized the lack-of-probable-cause element in a malicious prosecution action to a frivolous appeal. (Ibid., citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [183 Cal.Rptr. 508, 646 P.2d 179].) The court held that for purposes of malicious prosecution, a claim is asserted with probable cause if it is “legally tenable”—that is, if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel, supra, 47 Cal.3d at p. 886, italics added.) A claimant lacks probable cause “only if ‘any reasonable attorney would agree that the [claim] is totally and completely without merit.’ ” (Id. at p. 885, italics added; accord, Zamos, supra, 32 Cal.4th at p. 970; Wilson, supra, 28 Cal.4th at p. 817; Nichols, supra, 168 Cal.App.4th at p. 1018; Paulus, supra, 139 Cal.App.4th at p. 674.)
Generally, a claim is legally tenable if the claim is (1) legally sufficient, and (2) substantiated by competent evidence. (Wilson, supra, 28 Cal.4th at p. 821; Nichols, supra, 168 Cal.App.4th at pp. 1019-1020.) But a claim need not be meritorious, or even likely to be so, to be legally tenable. “ ‘Probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious *358prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 743, fn. 13 [3 Cal.Rptr.3d 636, 74 P.3d 737] (Sorrow Formulas).) This is because “it is not ‘true charges’ but rather legally tenable claims for relief that the law seeks to protect. [Citations.]” {Sheldon Appel, supra, 47 Cal.3d at p. 885.) “ ‘Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . .’ [Citation.]” {Ibid., italics added; accord, Wilson, supra, 28 Cal.4th at p. 817; Hufstedler, supra, 42 Cal.App.4th at p. 66.) “A litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortiously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious.” (Wilson, supra, 28 Cal.4th at p. 822; accord, Zamos, supra, 32 Cal.4th at p. 970, fn. 9; Paulus, supra, 139 Cal.App.4th at pp. 674-675; Marijanovic v. Gray, York & Duffy (2006) 137 Cal.App.4th 1262, 1271 [40 Cal.Rptr.3d 867].)
Accordingly, a civil litigant is held to a “relatively low standard of probable cause .... [Citation.]” (Wilson, supra, 28 Cal.4th at p. 823, fn. 8, citing Sheldon Appel, supra, 47 Cal.3d at p. 885; see Nichols, supra, 168 Cal.App.4th at p. 1018 [“ ‘less stringent’ standard”]; Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047 [79 Cal.Rptr.3d 822] (Plumley) [“low threshold” and “lenient standard”]; Paulus, supra, 139 Cal.App.4th at p. 674 [“lenient standard”].) “[P]robable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable.” {Wilson, supra, 28 Cal.4th at p. 824.)
Although this standard is easy to state, our Supreme Court has recognized that it may be difficult to apply in a particular case. (Zamos, supra, 32 Cal.4th at p. 970.) As one authority has observed, “judges display different levels of tolerance for ultimately losing arguments, or when they disagree among themselves as to where the ‘leading edge’ of present law is, and hence the starting place for good faith argument over extension or modification. The problem is compounded because different judges may be more or less likely to see possibilities in a case that counsel has not recognized or has not *359articulated well.” (Hazard & Hodes, supra, § 27.7, p. 27-13, fn. omitted.) Accordingly, our Supreme Court has cautioned that “[t]he question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents” to preserve “the distinction between a merely unsuccessful and a legally untenable claim.” (Sheldon Appel, supra, 47 Cal.3d at p. 875; see also Wilson, supra, 28 Cal.4th at p. 817.) The “court must properly take into account the evolutionary potential of legal principles. [Citation.]” (Sheldon Appel, supra, 47 Cal.3d at p. 886, italics added; accord, Nichols, supra, 168 Cal.App.4th at p. 1019; Paulus, supra, 139 Cal.App.4th at p. 674.) As the court stated in Nichols, “ ‘Consideration of this question [of whether the underlying suit was legally tenable] requires that the court take account of the evolutionary potential of legal principles and any uncertainty which might be embedded there. [Citation.] “To hold that the person initiating civil proceedings is liable unless the claim proves to be valid, would throw an undesirable burden upon those who by advancing claims not heretofore recognized nevertheless aid in making the law consistent with changing conditions and changing opinions. There are many instances in which a line of authority has been modified or rejected. To subject those who challenge this authority to liability for wrongful use of civil proceedings might prove a deterrent to the overturning of archaic decisions.” [Citations.]’ [Citation.]” (Nichols, supra, 168 Cal.App.4th at p. 1019.)
These principles make clear that a claim is not untenable cause merely because there is no existing authority that indisputably establishes its legal viability. Indeed, a claim is not necessarily untenable even if the existing authority is directly adverse, provided there is a tenable basis to argue for an extension, modification, or reversal of existing law. (See, e.g., Rest.3d Law Governing Lawyers, § 110, subd. (1), p. 171; Model Rules, rule 3.1.)6
*360One notorious example from a different but related context illustrates the wisdom of this rule. In Hunter v. Earthgrains Co. Bakery (4th Cir. 2002) 281 F.3d 144 (Hunter), a federal district court in the Fourth Circuit entered summary judgment against the plaintiffs in an employment discrimination case on the ground, inter alia, that the plaintiffs were required to arbitrate their claims. (Id. at p. 148.) The district court then suspended the plaintiff’s lawyer for five years as a sanction under Rule 11 because, “first and foremost,” the lawyer had asserted a legal position on the arbitration issue that was directly contrary to existing Fourth Circuit precedent. (281 F.3d at p. 150.) The district court judge characterized the attorney’s argument as “ ‘utter nonsense’ ” and “ ‘paradigmatic of a frivolous legal contention.’ ” (Id. at p. 153.)
The Fourth Circuit Court of Appeals reversed the sanction order. The appellate court agreed that the argument advanced by the lawyer was directly contrary to existing Fourth Circuit authority. (Hunter, supra, 281 F.3d at p. 154.) But, the appellate court noted, six other federal circuits had rejected the Fourth Circuit’s reasoning, and none had agreed with it. (Ibid.) Moreover, by the time the district court issued its sanction order, the United States Supreme Court had, in a different case, adopted the legal position advocated by the plaintiffs’ lawyer. (Id. at p. 155.) As a result, “[w]hen the district court suspended [the lawyer] for advancing a legal position that was ‘not the law of this circuit,’ ... it was itself propounding a legal proposition in conflict with the Supreme Court’s . . . decision.” (Id. at pp. 155-156, citation omitted.) The appellate court thus concluded that the lawyer “was plainly entitled (and probably obligated) to maintain that [the Fourth Circuit precedent] was incorrectly decided.” (Id. at p. 156, italics added, fn. omitted.) The court observed, “[I]f it were forbidden to argue a position contrary to precedent, ‘the parties and counsel who in the early 1950s brought the case of Brown v. Board of Ed., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), might have been thought by some district court to have engaged in sanctionable conduct for pursuing their claims in the face of the contrary precedent of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). The civil rights movement might have died aborning.’ [Citation.]” (Hunter, supra, 281 F.3d at p. 156, quoting Blue v. United States Dept, of Army (4th Cir. 1990) 914 F.2d 525, 534; see also Cochran, Rule 11: The Road to Amendment (1991) 61 Miss. L.J. 5, 9 & fns. 16, 19; Stein, Rule 11 in the Real World: How the Dynamics of Litigation Defeat the Purpose of Imposing Attorney Fee Sanctions for the Assertion of Frivolous Legal Arguments (1990) 132 F.R.D. 309, 318.)
Of course, I do not suggest that this case is comparable to Brown v. Board of Education, supra, 347 U.S. 483. But the policy of fostering the sort of zealous and creative advocacy that led to the Brown decision may be endangered if, in cases like this one, courts hold that attorneys lacked probable cause to assert claims on behalf of their clients. Examples such as *361Hunter, supra, 281 F.3d 144 should caution judges adjudicating the legal tenability of a claim that, unless the claim is patently meritless, the benefit of the doubt should go to the lawyer. As the United States Supreme Court stated, “In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.” (McCoy v. Court of Appeals of Wisconsin (1988) 486 U.S. 429, 444 [100 L.Ed.2d 440, 108 S.Ct. 1895], italics added [discussing criminal defense attorneys].)
3. Determining Probable Cause
“Whereas the malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action, 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. [Citation.]” (Sheldon Appel, supra, 47 Cal.3d at p. 878.) “[I]f the trial court concludes that, on the basis of the facts known to the defendant, the filing of the prior action was objectively reasonable, the court has necessarily determined that the malicious prosecution plaintiff was not subjected to an unjustified lawsuit.” (Id. at p. 883.) Whether a reasonable lawyer would have thought the claim legally tenable—an objective inquiry—is a legal issue that is reviewed de novo. (See Arcaro v. Silva & Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156 [91 Cal.Rptr.2d 433] (Arcaro).) Another component of probable cause—the state of a defendant’s knowledge of the supporting facts at the time of the initiation of the underlying lawsuit and thereafter—is potentially a factual issue that is reviewed under the substantial evidence standard of review. (Sheldon Appel, supra, 47 Cal.3d at p. 884; see Estate of Tucker v. Interscope Records (9th Cir. 2008) 515 F.3d 1019, 1031.)
Applying the objective standard for determining whether a claim is tenable may be challenging in a particular case. Some ancillary principles, however, may guide the court’s decision. I have already discussed one of these—the concept that the “court must properly take into account the evolutionary potential of legal principles. [Citation.]” (Sheldon Appel, supra, 47 Cal.3d at p. 886.) There are others.
First, the malicious prosecution plaintiff bears the burden of producing evidence and persuading the court that the attorney defendant lacked probable *362cause. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup); Sheldon Appel, supra, 47 Cal.3d at p. 874; Songster v. Paetkau (1998) 68 Cal.App.4th 151, 164 [80 Cal.Rptr.2d 66] (Sangster).) The defendant is not required affirmatively to establish probable cause. Moreover, the plaintiff cannot establish lack of probable cause merely by establishing that the claim was determined to be unmeritorious in the underlying action. As discussed ante, “[favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause.” (Jarrow Formulas, supra, 31 Cal.4th at p. 743, fn. 13, original italics; 1 Mallen & Smith, supra, § 6:17, p. 808 [“The plaintiff must show both a lack of merit and a lack of probable cause.” (Italics added.)].)7 When considering probable cause, “ 1 “[T]he inquiry [is] not whether the plaintiff had in fact a good and valid cause of action, but whether this was apparently true, and it was accordingly the right of the plaintiff to invoke a judicial decision concerning the merits of the case presented for determination ....”’ [Citation.]” (Wilson, supra, 28 Cal.4th at p. 818, original italics; see also 1 Mallen & Smith, supra, § 6:17, p. 807 [“[T]he inquiry concerns the apparent existence of reasonable grounds for the attorney’s decision to initiate or continue the proceedings.” (Italics added.)].) For example, neither a defense summary judgment nor a denial of a motion for preliminary injunction in the underlying action establishes that a claim is untenable. (Jarrow Formulas, supra, 31 Cal.4th at p. 742 [defense summary judgment]; Paulus, supra, 139 Cal.App.4th at p. 667, fn. 6 [denial of preliminary injunction].)
Second, the malicious prosecution plaintiff may prove lack of probable cause in two ways that, although related, are distinct. (See Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512 [126 Cal.Rptr.2d 747] (Morrison), disapproved on another ground in Zamos, supra, 32 Cal.4th at p. 973; Sangster, supra, 68 Cal.App.4th at pp. 164-165; Puryear v. Golden Bear Ins. Co. (1998) 66 Cal.App.4th 1188, 1195 [78 Cal.Rptr.2d 507] (Puryear).) “In considering the issue of probable cause there is an analytical dichotomy which arises due to the factual/legal duality involved in virtually all lawsuits. In a typical case the merits of the lawsuit depend upon the factual circumstances established by the evidence and the legal theory upon which relief is sought. A litigant will lack probable cause for his action if he relies upon facts which he has no reasonable cause to believe to be true, or seeks recovery upon a legal theory which is untenable under the facts known to *363him. The probable cause analysis may differ depending upon where the alleged deficiency lies.” (Leonardini, supra, 216 Cal.App.3d at p. 568.)
Thus, one method of showing lack of probable cause is to prove that no reasonable attorney would contend that the facts alleged in the underlying action would establish liability under the legal theory advanced—i.e., the claim is legally untenable. (See Soukup, supra, 39 Cal.4th at p. 292; Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 319 [8 Cal.Rptr.3d 915] (Slaney).) “ ‘[F]rom the legal perspective,’ an action is tenable ‘if it is supported by existing authority or the reasonable extension of that authority.’ ” (Morrison, supra, 103 Cal.App.4th at p. 512, quoting Arcaro, supra, 77 Cal.App.4th at p. 156.)
The other method is to prove that the attorney (1) alleged facts the attorney knew or subsequently learned were not true, or (2) the attorney had no reasonable basis to infer that evidence of the alleged facts could be developed through discovery or further investigation—i.e., the claim is factually untenable. (See Soukup, supra, 39 Cal.4th at p. 292; see also Daniels v. Robbins (2010) 182 Cal.App.4th 204, 222 [105 Cal.Rptr.3d 683]; Slaney, supra, 115 Cal.App.4th at p. 319; Morrison, supra, 103 Cal.App.4th at p. 512; Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 625-627 [124 Cal.Rptr.2d 556] {Swat-Fame), disapproved on another ground in Zamos, supra, 32 Cal.4th at p. 973; Arcaro, supra, 11 Cal.App.4th at pp. 156-157.)
Related to this standard of factual tenability is the rule that a lawyer is not required to possess all of the evidence necessary to prove a claim prior to filing a complaint. A reasonable lawyer may rely on discovery and further investigation conducted after filing the lawsuit to supply the evidentiary foundation for the claim. (Hazard & Hodes, supra, § 27.6, p. 27-10.) All that is required is that the lawyer have a reasonable factual basis to believe that such evidence may be developed. (See Swat-Fame, supra, 101 Cal.App.4th at p. 625 [lawyer had probable cause to assert fraud claim when lawyer’s information “reasonably suggested] that . . . evidence might come to light during discovery”]; Arcaro, supra, 11 Cal.App.4th at p. 156 [probable cause “requires evidence sufficient to prevail in the action or at least information reasonably warranting an inference there is such evidence” (citing Puryear, supra, 66 Cal.App.4th at p. 1195)].) This is because the threat of a malicious prosecution action “must not bar the courthouse door to people who have some support for a complaint but need discovery to prove their case.” (Frantz v. U.S. Powerlifting Federation (7th Cir. 1987) 836 F.2d 1063, 1068 [discussing sanctions under Rule 11]; see also Model Rules, rule 3.1, com. [2] [“The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.”].)
*364Third, in determining whether the malicious-prosecution plaintiff has met his or her burden of proving lack of probable cause, the court should view the allegations in the underlying action most favorably to the attorney defendant. (Songster, supra, 68 Cal.App.4th at p. 165; Leonardini, supra, 216 Cal.App.3d at p. 571.) As the court in Leonardini explained, “Three sound but separate policies compel liberality in construction of the pleadings. First, ... the policy which favors open access to the courts for the resolution of conflicts. This policy is inconsistent with a rigid construction of the prior pleadings to support a malicious prosecution action. Second, 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. [Citation.] Finally, and in any event, in this state pleadings are required to be liberally construed in favor of the pleader. [Citations.] The factual allegations of the complaint are controlling over the title or label given the pleading and over the prayer or demand for relief. [Citation.] In these respects federal rules of pleading are similar. [Citation.] Together these policies compel the conclusion that [the defendant’s] complaint must be construed liberally in determining whether the action was legally tenable.” (Leonardini, supra, 216 Cal.App.3d at p. 571.)
Fourth, “[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.” (Wilson, supra, 28 Cal.4th at p. 818.) As relevant here, an order overruling a demurrer—or, in federal practice, denying a motion to dismiss—establishes as a matter of law the legal tenability of a cause of action as alleged. (Swat-Fame, supra, 101 Cal.App.4th at p. 625.) Because such an order does not address the evidence, however, it does not establish the factual tenability of the claim.
B. The Mint Failed to Establish Lack of Probable Cause
The principles discussed in the preceding part compel the conclusion that the trial court was correct in determining that the Mint failed as a matter of law to establish that Manatt lacked probable cause to assert the trademark dilution and false advertising claims at issue here. The legal tenability of both claims, as alleged, was established by the order of United States District Judge Richard Paez denying the Mint’s motion to dismiss. Moreover, properly taking into account the evolutionary principles of the law, Manatt had an arguable legal basis for asserting both claims. As to factual tenability, the Mint produced no evidence whatever to establish that the factual allegations *365in the underlying complaint were false; Manatt knew them to be false; after filing the complaint, Manatt learned specific, verifiable facts that precluded the claims; or Manatt had no reasonable basis to believe that competent evidence to support the claims could be developed through discovery or additional investigation.
1. Trademark Dilution
a. Legal Tenability
In Swat-Fame, supra, 101 Cal.App.4th at page 626, the Court of Appeal held, inter alia, “Because the allegations in the complaint were true to the best of the [lawyer-defendants’] knowledge at the time the complaint was filed, and because the trial court overruled Swat-Fame’s demurrer . . . , the lawyers necessarily had probable cause to bring the claim . . . .” This is a sound rule, for it is consistent with the principle that “[c]laims that have succeeded at a hearing on the merits ... are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness” (Wilson, supra, 28 Cal.4th at p. 818); it mitigates “ ‘the potential [of malicious prosecution claims] to penalize and deter the legitimate invocation of the judicial process for redress of grievances’ ” (Plumley, supra, 164 Cal.App.4th at p. 1052, quoting Wilson, supra, 28 Cal.4th at p. 818); and it “ ‘vindicates] ... file dignity and authority of judicial tribunals ... in order that their judgments and decrees may be invested with that force and sanctity which shall be a shield and protection to all parties and persons in privity with them’ ” (Plumley, supra, 164 Cal.App.4th at p. 1052, fn. 8, quoting Crescent Live Stock Co. v. Butchers’ Union (1887) 120 U.S. 141, 159 [30 L.Ed. 614, 7 S.Ct. 472]). That rule disposes of the legal tenability issue here.
In the underlying case, the Mint moved to dismiss the trademark dilution claim. (Cairns I, supra, 24 F.Supp.2d at pp. 1033-1036.) After an examination of the allegations stated in the complaint and the relevant legal authorities, Judge Paez concluded that—although the claim might be difficult to prove—the complaint stated a claim for trademark dilution. (Ibid.) Under the rule of Swat-Fame, supra, 101 Cal.App.4th at page 626, the district court’s ruling established as a matter of law the legal tenability of the trademark dilution claim.
Plaintiff argues that Judge Paez’s ruling was not conclusive as to probable cause because, in ruling on a motion to dismiss, he was required to accept all *366material allegations as true and construe them in a light most favorable to the nonmoving party. But that observation concerns only factual tenability. Plaintiff does not seek to distinguish Swat-Fame, supra, 101 Cal.App.4th 613, or argue that it was wrongly decided. Accordingly, legal tenability of the trademark dilution claim was established as a matter of law by Judge Paez’s denial of the Mint’s motion to dismiss.
United States District Judge Florence-Marie Cooper, who characterized the dilution claim as “absurd” in her order granting the summary judgment in favor of the Mint in the federal action, stated in awarding the Mint its attorney fees that the dilution claim was “just short of frivolous.” (Cairns IV, supra, 115 F.Supp.2d at p. 1189, italics added.) Short of frivolous is not frivolous; not frivolous is legally tenable. (See Sheldon Appel, supra, 47 Cal.3d at p. 885 [defining probable cause by reference to standard for frivolous appeals].) To the extent Judge Cooper’s decision on the attorney fee motion is relevant,8 it supports rather than contradicts the conclusion that the claim had a tenable legal basis.
Even if Judge Paez’s ruling did not establish the legal tenability of the claim, the authorities cited by Manatt are sufficient to permit a reasonable lawyer to argue its legal merit, particularly taking into account the evolutionary potential of the law. Lack of probable cause is not established by Judge Paez’s order denying Manatt’s motion for a preliminary injunction, nor by Judge Cooper’s order granting the defense summary judgment. (Jarrow Formulas, supra, 31 Cal.4th at p. 742; Paulus, supra, 139 Cal.App.4th at p. 667, fn. 6.) The issue is not whether Manatt’s legal position was meritorious, but whether the contrary position was “so absolutely correct that no reasonable attorney would have thought otherwise.” (Hufstedler, supra, 42 Cal.App.4th at p. 67, italics added.)
The Mint has cited no authority directly adverse to Manatt’s dilution claim, and to my knowledge there is none because of the unique circumstances presented by who Princess Diana was and the fame she achieved. The trademark authorities cited by Manatt establish principles from which a reasonable lawyer, zealously and creatively representing his client’s interests, could argue that a legal framework had been established that would permit *367Manatt’s clients to recover under a trademark dilution theory. That is how the law evolves—good lawyers, usually in weak cases, reasoning from established principles to advocate an extension, modification, or reversal of existing law. Even cases that “are factually dissimilar . . . may be relied on as furnishing some basis for finding [a] claim to have been objectively tenable.” (Paulus, supra, 139 Cal.App.4th at p. 682, fn. 19.)
Indeed, in Peaceable Planet, Inc. v. Ty, Inc. (7th Cir. 2004) 362 F.3d 986, 990, United States Court of Appeals Judge Richard Posner observed that the rule that a personal name cannot obtain trademark protection without secondary meaning is a common law “generalization” rather than a statutory absolute, and stated that when the “rule” “would impede rather than promote competition and consumer welfare, an exception should be recognized.” Such views hardly signify an immutable legal precept when it comes to determining whether there is trademark protection. It is precisely the fluidity of legal principles that licenses creativity by attorneys in formulating their clients’ claims and the legal arguments that support them. Based on the foregoing, the only question remaining is whether the Mint proved by a preponderance of the evidence that the claim was factually untenable.
b. Factual Tenability
To establish that the dilution claim was factually untenable, the Mint bore the burden of proving by a preponderance of the evidence that (1) Manatt knew when it filed the complaint, or it subsequently learned, that the facts alleged in the complaint were not true, or (2) when the complaint was filed, Manatt had no reasonable basis to infer that evidence of such facts could be developed through discovery or further investigation. (See Soukup, supra, 39 Cal.4th at p. 292; see also Daniels v. Robbins, supra, 182 Cal.App.4th at p. 222; Slaney, supra, 115 Cal.App.4th at p. 319; Morrison, supra, 103 Cal.App.4th at p. 512; Swat-Fame, supra, 101 Cal.App.4th at pp. 625-627; Arcaro, supra, 77 Cal.App.4th at pp. 156-157.) Implicit in the first standard, of course, is the requirement that the Mint prove that the factual allegations were, in fact, false. The Mint failed to meet its burden under either standard.
The Mint failed as a matter of law to prove factual untenability for the simple reason that the Mint did not introduce into evidence in this case the factual record developed in the underlying case. (See Hufstedler, 42 Cal.App.4th at pp. 65-66 [noting that, in some circumstances when there are no disputed facts, “the record in the underlying action” may “constitute[] all *368the evidence needed to determine whether the underlying action was objectively tenable”].) There is no dispute that Manatt submitted evidence to the district court in support of the dilution claim both on its motion for a preliminary injunction (Cairns I, supra, 24 F.Supp.2d at p. 1038, 1043-1045) and in opposition to the Mint’s motion for summary judgment. (Cairns III, supra, 107 F.Supp.2d at pp. 1221-1222.) The Mint’s request for judicial notice, properly denied by this court because the material was not before the trial court, contains nine volumes of material exceeding 2,500 pages, a substantial portion of which is comprised of evidence submitted by Manatt in the underlying case. As the plaintiff in this malicious prosecution action, the Mint had the burden to produce the evidence necessary to prove factual untenability by a preponderance of the evidence. (Soukup, supra, 39 Cal.4th at p. 292; Sheldon Appel, supra, 47 Cal.3d at p. 874; Sangster, supra, 68 Cal.App.4th at p. 164.) Now, as the appellant, it is the Mint’s burden to provide a record sufficient to permit this court to conclude, as a matter of law, that the trial court erred by finding (after 17 days of trial) that it was “overwhelmingly clear” that Manatt had a tenable basis to assert the claim. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [224 Cal.Rptr. 664, 715 P.2d 624].) The trial court rightfully concluded that the Mint could not prevail on its contention that there was no tenable evidence to support the claims pleaded by Manatt when the evidence actually submitted by Manatt in support of those claims in the underlying action was not before the trial court. To conclude otherwise would have been extraordinary.
Even if the Mint’s failure to introduce the factual record in the underlying action does not compel judgment against it as a matter of law, the Mint nevertheless "has failed to show that it is entitled to a reversal. In briefing this issue on appeal, the Mint has cited no cognizable evidence to establish that the trademark dilution claim was factually untenable.9
The rulings in the underlying case cannot be considered substantive evidence of lack of probable cause. Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1191 [121 Cal.Rptr.2d 794] (Mattel) and Slaney, supra, 115 Cal.App.4th 306, to the extent they suggest otherwise, are *369demonstrably incorrect and inconsistent with other authorities. Both cases are nevertheless distinguishable from the instant case.
In Mattel, supra, 99 Cal.App.4th 1179, the malicious prosecution plaintiff settled a federal trademark infringement action brought by the defendant and later filed a malicious prosecution action against the defendant in California state court. The defendant moved under the so-called anti-SLAPP statute (Code Civ. Proc., §425.16) (“‘strategic lawsuits against public participation’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 [124 Cal.Rptr.2d 530, 52 P.3d 703])) to strike the malicious prosecution action. The trial court denied the motion, finding that the plaintiff had demonstrated a probability of prevailing on the merits. The appellate court affirmed. (Mattel, supra, 99 Cal.App.4th at pp. 1182-1183.) As relevant here, the primary issue on appeal was whether the settlement of the federal trademark action constituted a termination of that action favorable to the malicious prosecution plaintiff. The appellate court concluded that it did because the plaintiff had obtained sanctions against the defendant under Rule 11 for filing a meritless claim, reflecting a determination on the merits in favor of the malicious prosecution plaintiff. (Mattel, at pp. 1190-1191.) With respect to the probable cause and malice elements, however, the court in Mattel stated only the following, with no additional authority or analysis: “The findings made in connection with the [R]ule 11 . . . sanctions, the appropriate subject of judicial notice requested of the trial court (Evid. Code, § 451, subd. (a)), are evidence that the underlying action was filed without probable cause. Malice may be inferred from the lack of probable cause. [Citation.]”10 (Mattel, supra, 99 Cal.App.4th at p. 1191, citation omitted.) The Court of Appeal in Slaney, supra, 115 Cal.App.4th at page 321, relied on Mattel without independent analysis. In those cases, the courts relied upon Rule 11 sanctions, which were not involved here. In both cases, however, the use of findings in the underlying case as substantive evidence of factual untenability, without discussion, was an improper use of judicial notice.
When a court takes judicial notice of a court ruling in another action, it may notice the existence of the ruling, but it may not take judicial notice of the truth of a factual finding made by a judge sitting as a trier of fact. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 484 [104 *370Cal.Rptr.3d 545]; Plumley, supra, 164 Cal.App.4th at pp. 1050-1051; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749 [50 Cal.Rptr.2d 484] [“a court may not take judicial notice of the truth of a factual finding made in another action” (italics omitted)]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1563-1569 & fn. 8 [8 Cal.Rptr.2d 552] (Sosinsky).)
The reasons for this rule recently were restated by this division in Plumley, supra, 164 Cal.App.4th 1031: “ ‘While we have no quarrel with the fact that a judge, after hearing a factual dispute between litigants A and B, may choose to believe A, and make a finding of fact in A’s favor, and while we have no quarrel that at some subsequent time it may be proper to take judicial notice that the judge did in fact make that particular finding in favor of A, the taking of judicial notice that the judge made a particular factual finding is a far cry from the taking of judicial notice that the “facts” found by the judge must necessarily be the true facts, i.e., must necessarily be “the truth.” To state this a bit more simply, the taking of judicial notice that the judge believed A (i.e., that the judge ruled in favor of A on a particular factual dispute) is different from the taking of judicial notice that A’s testimony must necessarily have been true simply because the judge believed A and not B.’ [Citation.]” (Id. at p. 1050, quoting Sosinsky, supra, 6 Cal.App.4th at p. 1565.) “ ‘[N]either a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding. As we have noted, “[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.” [Citation.] Taking judicial notice of the truth of a judge’s factual finding would appear to us to be tantamount to taking judicial notice that the judge’s factual finding must necessarily have been correct and that the judge is therefore infallible. We resist the temptation to do so.’ [Citation.]” (Plumley; supra, 164 Cal.App.4th at p. 1050, fn. 7.) “ ‘It is the consequence of judicial notice that the “fact” noticed is, in effect, treated as true for purposes of proof. . . . Therefore, a finding of fact that was judicially noticed would be removed as a subject of dispute and would be accepted for evidentiary purposes as true. The effect would be that without resort to concepts of collateral estoppel or res judicata that would litigate whether the issue was fully addressed and resolved, a finding of fact would be removed from dispute in the other action in which it was judicially noticed.’ [Citation.]” (Plumley; supra, 164 Cal.App.4th at p. 1051, italics added, original italics omitted.)
Although not directly on point, also instructive is Soukup, supra, 39 Cal.4th 260. In that case, the malicious prosecution defendant attempted to establish probable cause for the underlying claims by reference to “rulings in other cases,” involving parties other than the malicious prosecution plaintiff, that *371were favorable to the defendant. The other rulings included a judgment in the defendant’s favor in a factually related malicious prosecution action brought by another person. (Id. at pp. 294—295.) The Supreme Court rejected the defendant’s argument, stating, “But defendants do not contend, much less demonstrate, that these rulings have collateral estoppel effect on the issue of whether probable cause existed to support the [claims] in the underlying suit .... Absent such effect, they are irrelevant to that issue.” (Id. at p. 295, italics added.)
In this case, we should not repeat the errors in Mattel, supra, 99 Cal.App.4th 1179 and Slaney, supra, 115 Cal.App.4th 306 by taking judicial notice of the truth of the findings in the underlying case that Manatt’s claims were “groundless and unreasonable.” (Cairns IV, supra, 115 F.Supp.2d at p. 1188.) We can judicially notice only that the district court in the underlying case made such findings—but that fact has no bearing on whether Manatt knew the claims to be false or had no reasonable basis to believe it could develop evidence to support the claims. This court properly has rejected the Mint’s argument that the district court’s findings have a collateral estoppel effect as to the probable cause determination in this case. “Absent such effect, [those findings] are irrelevant to [the probable cause] issue.” (Soukup, 39 Cal.4th at p. 295.) As a result, the Mint has produced no cognizable evidence whatever to sustain its burden of proving lack of probable cause. That should be the end of this case.
The Mint asserts that Manatt introduced no evidence at trial to show that Princess Diana used her name and likeness as a trademark. But this improperly shifts the burden of production from the plaintiff—the Mint—to the defendant—Manatt. In fact, as discussed, the Mint has cited no cognizable evidence in the record to establish that Diana did not use her name and likeness as a trademark, or that Manatt was aware of “specific information as to verifiable facts that, if true, would totally negate its cause of action.” (Swat-Fame, supra, 101 Cal.App.4th at p. 627.) This improper burden shifting is a pervasive flaw in the Mint’s argument.
That the trial court judge who denied Manatt’s motion for summary judgment in this case suggested that Manatt’s summary judgment evidence failed to refer to services provided by Princess Diana is irrelevant. That motion for summary judgment was denied and is not on review—we are reviewing the decision of a different trial judge made after trial based on the trial record.11 The evidence submitted by Manatt in support of its summary judgment motion has no relevance here, particularly when that evidence is *372not part of the record on appeal. Of even less relevance—i.e., less than none, if that is possible—is the trial judge’s characterization of that evidence in connection with the summary judgment motion. Furthermore, there is no basis in the record to restate the trial judge’s comment that the evidence did “not mention any services”—a negative—as an affirmative statement that Princess Diana’s name was used only as part of a textual reference to Princess Diana as an individual.
We cannot distinguish other celebrity cases from this case based on our own assumptions and views about Princess Diana. It is, of course, undisputed that Princess Diana was quite famous. Without evidence, neither the trial court nor this court can make categorical conclusions about people’s perceptions at a particular point in time with respect to the words “Diana, Princess of Wales.” Whether the “public” associates the phrase “Diana, Princess of Wales” with the Diana of the fairytale wedding and tabloid divorce, on the one hand, or the Diana who did charitable work, on the other, is a matter subject to proof \ as is the questionable assumption that the words “Diana, Princess of Wales” could never gain secondary meaning. Such statements and assumptions are not undisputed facts supported by competent evidence in the record. They provide no basis for reversing the trial court’s judgment in this case. Parenthetically, even if “Diana, Princess of Wales” did not have a secondary meaning during Princess Diana’s life, it is conceivable that at some point after her death, Princess Diana’s name might well become associated with her charities and thus achieve a secondary meaning. That this association might have occurred is an issue that Manatt tenably could argue.
2. False Advertising
The false advertising claim was not legally untenable. First, Judge Paez denied the Mint’s motion to dismiss. In so doing, Judge Paez considered both the allegations in the body of the complaint and the advertisements themselves, which were attached to the complaint. Under federal pleading practice, “[a]ll documents attached to the pleadings as exhibits are considered part of the pleadings for the purposes of’ a motion to dismiss. (Cagan v. Intervest Midwest Real Estate Corp. (N.D.I11. 1991) 774 F.Supp. 1089, 1091, fn. 2; see Fed. Rules Civ.Proc., rule 10(c) (28 U.S.C.); Schwarzer et al., Cal. Practice Guide: Federal Civil Procedure Before Trial (The Rutter Group 2010) 1 8:680, p. 8-75 (rev. # 1, 2009).) In ruling on the Mint’s motion to dismiss in the federal action, Judge Paez observed that the court could consider “exhibits submitted with the complaint . . . .” (Cairns I, supra, 24 F.Supp.2d at p. 1023.) Accordingly, the legal tenability of the false advertising was established as a matter of law.
*373Second, as discussed, in determining whether the malicious prosecution plaintiff has met its burden of proving lack of probable cause, the court must view the allegations in the underlying action most favorably to the attorney defendant. (Sangster, supra, 68 Cal.App.4th at p. 165; Leonardini, supra, 216 Cal.App.3d at p. 571.) This is not a case in which there was an attempt in the body of a complaint to misstate the facts or mislead the court. As stated, the advertisements were appended to the complaint and considered on the motion to dismiss. Accordingly, in determining whether Manatt had probable cause, we should reconcile the allegations stated in the body of the complaint with the advertisements appended to it, and construe the allegations most favorably to Manatt.
So construed, the false advertising claim was tenable. One of the advertisements offered for sale a limited edition commemorative plate and stated, “All proceeds go to Diana, Princess of Wales’ Charities.” It did not state, as mischaracterized by the Mint, that the Mint “would donate all of the proceeds of a particular portrait plate ordered through a particular ad.” (Italics added.) It is undisputed that, when the action was filed, none of the proceeds from the sale of that plate had been donated to any charity, let alone “Diana, Princess of Wales’ Charities.” Manatt thus had probable cause to bring a false advertising claim based on that advertisement.
The deposit with the court by the Mint of a portion of the revenue generated by sales of the plate (as distinct from revenue from sales generated by the ad) did not divest Manatt of probable cause. It is also undisputed that, in fact, a significant portion of the proceeds from the sales of the plates Were never donated to “Diana, Princess of Wales’ Charities,” but instead were donated to charities favored by the Mint’s owners. The representation in the ad can be viewed as having been proved to be actually false. Even if such subsequent events cannot establish probable cause at the time the lawsuit was filed (see Soukup, supra, 39 Cal.4th at p. 295 [evidence obtained after filing action did not provide probable cause for filing, but that evidence was inadmissible in any event]), we should not permit a tortfeasor to maintain a malicious prosecution action simply because the tort was not finally completed until after the underlying action was terminated. These circumstances suggest that there was evidence that Manatt could develop to support its false advertising claim. This is another basis for supporting the trial court’s determination that the Mint could not prevail on its malicious prosecution suit based on the false advertising claim.
Manatí’s failure to establish that all of the Mint’s advertisements appended to the complaint were false or misleading does not mean that Manatt lacked probable cause as to the claim or theory or ground of recovery. (See Kreeger v. Wanland (2006) 141 Cal.App.4th 826, 834 [46 Cal.Rptr.3d 790].) It cannot be *374that an attorney is liable for malicious prosecution if probable cause was lacking for an alleged fact within the claim even if there was probable cause for the claim or theory of recovery.
C. Malicious Prosecution As to an Alternative Ground
I have given my reasons why I believe the trial court’s decision should be affirmed. I append a few additional comments on the subject of malicious prosecution.
By virtue of the Supreme Court’s decision in Crowley v. Katleman (1994) 8 Cal.4th 666 [34 Cal.Rptr.2d 386, 881 P.2d 1083] (Crowley), we are justified in examining each of the causes of action in the underlying complaint prepared by Manatt in this case to determine if Manatt can be held liable for malicious prosecution. In Crowley, the court reaffirmed the rule of Bertero, supra, 13 Cal.3d 43, which held “that a suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause.” (Crowley, supra, 8 Cal.4th at p. 671.)
Both the majority and the dissent in Crowley, supra, 8 Cal.4th 666 made valid points on whether the rule of Bertero, supra, 13 Cal.3d 43, should be continued.12 I note that in 2007 the Supreme Court of New Mexico addressed this issue as follows: “Viewing the certified questions with an eye toward protecting honest litigants, we believe that a court’s analysis of probable cause should be undertaken in a manner that will likely have the least chilling effect on a litigant’s access to the courts. Accordingly, we conclude that probable cause relates to the complaint as a whole, and the original plaintiff need not show favorable termination of each individual claim to establish an effective defense to a subsequent suit for malicious abuse of process. It would be too inhibiting of the right to seek redress in court if plaintiffs had to win on every count or be subject to a malicious abuse of process claim for any count that was unsuccessful. See, e.g., Teefey v. Cleaves 73 S.W.3d 813, 817 (Mo.Ct.App.2002) (“Separate counts in an underlying petition do not support separate actions for malicious prosecution: To allow a party to separate the unsuccessful claims from the successful claims in the underlying proceeding and bring a malicious prosecution action on the unsuccessful ones would invite a multitude of unwarranted litigation . . . .” (quoted authority omitted)). [H By allowing ‘some form of recovery’ for the plaintiff in the underlying suit, even though not on all counts, to serve as conclusive evidence of *375probable cause, we remain true to [the] mandate that the malicious abuse of process tort be construed narrowly in favor of the right of access to the courts. [Citation.] As the Tennessee Supreme Court in Swepson v. Davis, 109 Tenn. 99, 70 S.W. 65, 69 (1902), aptly observed in the context of a malicious prosecution case: ‘We know of no authority, and have been cited to none, holding that it is necessary for the plaintiff in his original suit to sustain every allegation or charge made in his bill, or else be liable to a suit for malicious prosecution. If this be the correct doctrine, then in every suit for malicious prosecution there must be a separate investigation and retrial of each separate allegation made in the original suit, without reference to the result of the suit as a whole, and the final decree therein. The only sound and tenable rule in cases of malicious prosecution is ... to settle the question whether the original suit was successfully prosecuted or not by the decree therein upon the final adjudication, and not by the separate allegations and charges, and the proof for and against each.’ This rationale recognizes that the litigation process must allow plaintiffs room to frame the issues and make changes in their approach when necessary.” (Fleetwood Retail Corp. v. LeDowc (2007) 142 N.M. 150 [164 P.3d 31, 37]; see also Joseph H. Held & Associates, Inc. v. Wolff (Mo.Ct.App. 2001) 39 S.W.3d 59; Moity v. Bodin (La.Ct.App. 1986) 489 So.2d 474; Crystal, supra, 32 Wake Forest L.Rev. at p. 688 [“the California Supreme Court’s decision in Crowley v. Katleman seems wrong” (Fn. omitted.)].)
It does seem odd that a remedy for excessive litigation expands the opportunity for lawsuits. (See Southern Christian Leadership Conference v. Al Malaikah Auditorium Co. (1991) 230 Cal.App.3d 207, 228 [281 Cal.Rptr. 216].)13 Moreover, a proliferation of malicious prosecution actions against attorneys can increase the cost of legal services14 and affect the attorney-client relationship.
Civil litigators face difficulties as a result of the decision in Crowley, supra, 8 Cal.4th 666, which difficulties are highlighted by the instant case. They may believe that their clients have a right to recovery, but if they assert various alternative causes of action, they face a possible malicious prosecution claim; and if they fail to allege such alternative causes of action they risk a malpractice claim—as suggested by the trial court in the instant case. *376(See Marijanovic v. Gray, York & Duffy, supra, 137 Cal.App.4th at p. 1272, fn. 5 [“it could well constitute malpractice for an attorney to drop a lawsuit, for which supporting evidence existed, merely because opposing counsel asserted the action was baseless”].)15
Attorneys defending a claim often file an answer denying all liability and asserting a score of affirmative defenses, most of which have no relationship to the case. At worst, the assertion of a frivolous defense may lead to sanctions under Code of Civil Procedure section 128.5, but not to exposure to a claim in an independent lawsuit.16 An attorney who asserts a good faith defense for a client does not expect any adverse consequences for alleging a variety of possible defenses that may have no applicability to the litigation. The same conduct by an attorney filing a complaint exposes him or her to a malicious prosecution action.
In this case, it would not be unreasonable to assume that the Mint’s marketing campaign interfered with the rights of Manatt’s clients. At first glance, the executors of the Princess Diana estate and trustee of the Diana, Princess of Wales Memorial Fund, might reasonably be apprehensive about a United States company marketing goods that use the name and likeness of Princess Diana and suggesting that proceeds from the sale of those goods will go to an undisclosed Princess Diana charity.17 The executors and the trust justifiably could believe this was a prelude to many other companies doing the same thing, thereby adversely affecting the charitable activities of the Princess Diana estate and trust. Whether or not there is under existing law a valid claim that can be asserted to prevent such conduct is another matter. But if there was probable cause to assert a claim under one theory, should the attorneys be vulnerable to a malicious prosecution for asserting other claims arising out of the same operative facts? The claims of right of publicity and false designation of origin under the Lanham Act (15 U.S.C. § 1125(a))—the two claims found to be based on probable cause—seemingly arise for the most part under the same operative facts upon which the trademark dilution claim under the Lanham Act (15 U.S.C. § 1125(c)) is based. The false advertising claim under the Lanham Act may be more distinct from the other claims, although related.
*377My point in this part is to suggest the dangers attorneys face making allegations in a complaint in the hope of fitting the injury to a client into several alternative legal theories, expanding a legal theory, or developing facts during discovery to support the claims or theories. Perhaps it is safer to omit alternative theories in the anticipation that after discovery, the complaint may be amended. But I doubt that many choose this potentially unwieldy option.
I would affirm the judgment.
Respondents’ petition for review by the Supreme Court was denied July 21, 2010, S183545. George, C. J., did not participate therein. Moreno, J., was of the opinion that the petition should be granted.
Associate Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I refer to plaintiffs and appellants Franklin Mint Company, Roll International Corporation, Steward Resnick and Lynda Resnick collectively and in the singular as the Mint. I refer to defendants and respondents Manatt, Phelps & Phillips, LLP, and Mark S. Lee collectively as Manatt. Reference to the “federal” or “underlying” action is to the underlying lawsuit. (See Cairns v. Franklin Mint Co. (C.D.Cal. 1998) 24 F.Supp.2d 1013 (Cairns I)', The Diana Princess of Wales Memorial Fund v. Franklin Mint Co. (9th Cir. Feb. 24, 2000, Nos. 98-56722, 99-55157) 1999 WL 1278044 (Cairns II)', Cairns v. Franklin Mint Co. (C.D.Cal. 2000) 107 F.Supp.2d 1212 (Cairns III)', and Cairns v. Franklin Mint Co. (C.D.Cal. 2000) 115 F.Supp.2d 1185 (Cairns TV).) When I refer to “Manatt’s claims,” I speak of Manatt in its representative capacity.
My discussion concerns malicious prosecution claims asserted against lawyers arising from the prosecution of civil litigation on a client’s behalf. I do not specifically discuss claims asserted directly against the client (see, e.g., Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 665 [43 Cal.Rptr.3d 148] (Paulus)), or claims asserted by a person maliciously subjected to unwarranted criminal charges. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 [254 Cal.Rptr. 336, 765 P.2d 498] (Sheldon Appel); 1 Harper et al. on Torts (3d ed. 2006) §§ 4.1—4.7, pp. 455-515; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 475, pp. 701-702.)
See, e.g., Code of Civil Procedure, section 128.5, subdivision (a); Federal Rules of Civil Procedure, rule 11(b) (28 U.S.C.) (Rule 11); see generally Wade, Frivolous Litigation: On Frivolous Litigation: A Study of Tort Liability and Procedural Sanctions (1986) 14 Hofstra L.Rev. 433, 457-490 (Wade) (surveying statutes and court rules authorizing sanction awards).
See, e.g., Rules of Professional Conduct, rule 3-200(B); American Bar Association Model Rules of Professional Conduct, rule 3.1 (Model Rules); Restatement Third of Law Governing Lawyers, section 110, subdivision 1, page 171.
I do not mean to suggest that we are bound by either the rules governing sanctions or the ethics rules in deciding this case under the common law of malicious prosecution. Those authorities, however, serve similar objectives and employ similar legal standards and terminology. Accordingly, I find those authorities sufficiently analogous that the principles they express are useful in examining the issues before this court.
“Legal conventions necessarily require that, at any point in time, well-trained lawyers be able to distinguish more plausible arguments from less plausible ones and, more to the point, plausible legal arguments from frivolous ones. However, it follows from the basic premises of legal historicism that what makes a good legal argument a good legal argument changes historically. The judgments of well-socialized lawyers about what is more plausible and less plausible, and even between what is ‘on the wall’ and what is totally ‘off the wall,’ are not fixed; rather, they evolve over time in response to historical and political forces in addition to the inevitable internal changes in legal doctrine. There is, therefore, no such thing as an inherently ‘frivolous’ legal argument considered transhistorically, although at any point in time there are plenty of ‘frivolous’ legal arguments, and well-trained lawyers are defined in part by their ability to spot and denounce them. Indeed one of the most remarkable features of any study of American legal history is watching arguments migrate from the category of ‘frivolous’ or ‘unthinkable’ to ‘reasonable, albeit, all things considered, unpersuasive’ to ‘reasonable, and on the whole the better argument,’ to being so overwhelmingly persuasive that to criticize them is to be tarred with the brush of ‘frivolity’ and, possibly, subjected to legal sanctions under Rule 11.” (Balkin & Levinson, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore (2001) 90 Geo. L.J. 173, 181.)
As Professor Wade observed, “[t]his requirement is unusual in that it places the burden on the present plaintiff to prove a negative . . . .” (Wade, supra, 14 Hofstra L.Rev. at p. 444.) But it is by placing such burdens on the malicious prosecution plaintiff—and by enjoining courts to enforce strictly such requirements—that the law seeks to mitigate the chilling effects of the tort. (See Siebel v. Mittlesteadt, supra, 41 Cal.4th at p. 745; Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 566 [264 Cal.Rptr. 883] (Leonardini).)
Judge Cooper’s award of attorney fees was expressly based, as she said, “on [Manatt’s] ‘absurd’ contention that ‘Diana, Princess of Wales’ had taken on a meaning other than identification of an individual. (June 27, 2000 Order at 21.) Attempting to argue that ‘Diana, Princess of Wales’ had acquired a secondary meaning falls just short of frivolous.” (Cairns IV, supra, 115 F.Supp.2d at p. 1189.) Manatt’s allegation that “ ‘Diana, Princess of Wales’ had taken on a meaning other than identification of an individual,” however, was a factual allegation subject to proof, not a legal claim. Judge Cooper’s decision on the attorney fee motion in Cairns IV thus might relate to the factual tenability of the claim, but it does not affect Judge Paez’s original conclusion that, as pleaded, the dilution claim was legally tenable.
In its opening brief, the Mint cited a few pages from its request for judicial notice, but this court has refused to judicially notice that material. In its written and oral arguments in the trial court in opposition to Manatt’s motions for nonsuit and a directed verdict, the Mint also relied on testimony from (1) Mark Lee that Princess Diana was (as characterized by the Mint’s trial attorney) “known for her royalty, her beauty, her style, her social life, her status as the mother of the future kings of England, and perhaps scandal”; and (2) the notes of a solicitor at a British law firm, attributing to Mr. Lee the statement that the trademark dilution claim was alleged solely “so that the wealth of evidence on charities could be introduced.” The Mint’s failure to argue such evidence in its briefs as grounds for reversing the judgment forfeited the Mint’s right to rely such evidence. (See Paulus, supra, 139 Cal.App.4th at p. 685.) In any event, such evidence appears immaterial to a determination of objective probable cause.
I note that the latter point—that malice is inferable solely from the lack of probable cause—probably was an incorrect statement of the law when Mattel, supra, 99 Cal.App.4th 1179, was decided. (See Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498 [78 Cal.Rptr.2d 142], citing Sheldon Appel, supra, 47 Cal.3d at pp. 885-886.) In any event, shortly thereafter, our Supreme Court expressly rejected the notion that subjective malice can be inferred solely from an objective lack of probable cause. (Jarrow Formulas, supra, 31 Cal.4th at p. 743.)
This is different than relying on a prior court decision to establish probable cause.
A court has gone even further than did the court in Crowley, supra, 8 Cal.4th 666, holding that “a malicious prosecution action [can] be maintained where most but not all of the amount sought in the prior action was claimed without probable cause.” (Citi-Wide Preferred Couriers, Inc. v. Golden Eagle Ins. Corp. (2003) 114 Cal.App.4th 906, 914 [8 Cal.Rptr.3d 199].)
See Drummond v. Desmarais (2009) 176 Cal.App.4th 439 [98 Cal.Rptr.3d 183] (malicious prosecution action brought against an attorney for bringing a malicious prosecution action).
If there is insurance coverage for malicious prosecution, there might be a duty to defend even though under Insurance Code section 533 and Civil Code section 1668 there is no obligation to indemnify. (See Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th 478.)
I concede that if there is probable cause for one cause of action, it would be more difficult to establish malice for an alternative cause of action lacking probable cause.
A tort of malicious defense is recognized in few jurisdictions. (California Physicians’ Service v. Superior Court (1992) 9 Cal.App.4th 1321, 1325 [12 Cal.Rptr.2d 95]; Young v. Allstate Ins. Co. (2008) 119 Haw. 403 [198 P.3d 666]; see also generally Aranson v. Schroeder (1995) 140 N.H. 359 [671 A.2d 1023] [adopting malicious defense tort].)
As plaintiffs prevailed in the underlying action, I do not question their conduct.