What is the test for probable cause in the malicious prosecution context?

In analyzing the issue of probable cause in a malicious prosecution context, the trial court must consider both 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 either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks [68 Cal.App.4th 165] recovery upon a legal theory which is untenable under the facts known to him. In making its determination whether the prior action was legally tenable, the trial court must construe the allegations of the underlying complaint liberally in a light most favorable to the malicious prosecution defendant. (Leonardini v. Shell Oil Co., supra, 216 Cal.App.3d at p. 571, 264 Cal.Rptr. 883.) ⁷ In all cases, probable

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