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3407 A trial court's overruling of a demurrer to a misrepresentation claim based on the argument that the alleged misrepresentations were expressions of opinion establishes that the misrepresentation claim was tenable when instituted (i.e., was brought with probable cause) and precludes a subsequent malicious prosecution action for commencement of that claim; an attorney who continues litigation after discovering that it is untenable is not liable for malicious prosecution if the litigation was tenable when it was commenced; a client who relied on the advice of counsel in commencing litigation is protected from malicious prosecution liability only if s/he informed counsel of the facts truthfully and in good faith.CitationSWAT-FAME v GOLDSTEIN (Tenable Misrepresentation) 101 CA4 613 [See: Sheldon Appel v Albert 47 C3 863; Hufstedler v Superior Court 42 CA4 55, T/AT 3/96; Roberts v Sentry 76 CA4 375, T/AT 12/99; Arcaro v Silva 77 CA4 152, T/AT 2/00; Vanzant v Daimler 96 CA4 1283, T/AT 4/02]
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