This is an appeal from an order denying defense motions pursuant to Code of Civil Procedure section 425.16,
At all times relevant, JR was a real estate and development company that owned and leased property in Orange and San Bernardino Counties. JR Capital Group, LLC (JR Capital), was JR's sole general partner. JR had many limited partners (more than 50) who were characterized by JR as passive investors. JR, as lessee, was the successor in interest to a long-term ground lease in Anaheim that is not due to expire for another 50 years. The property, since the 1960's, has been operated as a mobilehome park.
At some point, the Lawrences became the property's owners as successors in interest to the original owner and lessor. Michael
In August 2008, the Lawrences filed their first breach of lease action against JR, alleging claims for quiet title and declaratory relief and seeking to terminate the lease. They were represented by Mahaffey and Mahaffey & Associates. JR filed a cross-complaint, alleging claims for breach of the lease
The trial was bifurcated, with the court deciding some issues and the jury others. The Lawrences prevailed on several claims, but JR prevailed on the others. In March 2011, an amended net judgment was entered in JR's favor for $129,766.50. The Lawrences appealed, but the trial court's decision was subsequently affirmed by this court. (Lawrence v. JR Enterprises, LP (May 15, 2013, G044999) [nonpub. opn.].)
While final judgment in this action was still pending, Mahaffey sent an e-mail to JR's counsel on December 8, 2010. Purportedly seeking information regarding the turnover of the one-acre parcel that was the subject of JR's cross-complaint, the e-mail pointed to "many other battles ahead between these clients." Mahaffey stated: "As to the bigger picture, you know of course that final rulings on the issue of lease termination and forfeiture, the final wording on the judgment, who is the prevailing party, attorneys fees ... new trial motions, and finally an appeal on over 20+ separate issues will be filed."
He went on to say: "Also, and I am sure this comes as no surprise, a new action for lease termination, raising several breaches and illegal conduct issues will be filed, probably next week." According to Mahaffey, he learned for the first time during trial that JR was illegally selling mobilehomes on the property, because it lacked the proper licensing. After going on to list other
On January 17, 2011, the Lawrences sent JR a demand for payment of some $30,000 relating to utilities for one part of the property. The letter requested payment be made to Mahaffey's trust account. Shortly thereafter, JR was served with a notice of lien against Mahaffey by Plan 53, LLC. JR's counsel sent a response seeking clarification as to whether the amounts claimed in the January 17 letter were subject to the lien, but no response was forthcoming.
On March 2, JR filed a complaint for interpleader, declaratory relief and unjust enrichment regarding payment of money under the lease. On April 26, the Lawrences, represented by Mahaffey, filed the first of two cross-complaints. The first cross-complaint alleged breach of contract for the failure to pay the money demanded in the January 17 letter, breach of contract and request for lease termination/forfeiture based on the allegedly illegal mobilehome sales, and declaratory relief.
On April 28, Mahaffey sent another e-mail to JR's counsel. "As fun as the next five to ten years are going to be between our clients in multiple Courts" he began, before urging JR to settle and purchase the property. He then stated that he would like to depose some of the limited partners, before closing with: "Regards, and wow this next round is going to be a fee generator for a lot of lawyers at your firm ... (and of course me)!"
On June 20, the Lawrences filed a pleading captioned "Cross-Complaint to Cross-Complaint" in the interpleader action (the second cross-complaint). It alleged essentially the same three causes of action as the first cross-complaint: breach of contract, breach of covenant, and request for lease termination/forfeiture, and declaratory relief. The second cross-complaint, which eventually became the subject of the instant malicious prosecution action, named both JR and Rochelle, one of the limited partners. The Lawrences alleged Rochelle had ratified JR's conduct with respect to the mobilehome sales and alleged generally that the limited partners were coventurers who had ratified JR's conduct. The Lawrences had not, at that point, taken the deposition of Rochelle or any of the limited partners.
On July 26, the Lawrences dismissed the first cross-complaint with prejudice. On September 12, the Lawrences filed Roe amendments to the second cross-complaint in the interpleader action, thus adding 45 of JR's limited partners as cross-defendants. Some of the amendments were signed by Mahaffey and some were signed by Ghormley, his associate.
Prior to filing the amendments, no depositions of limited partners had been taken, although five depositions were noticed subsequently on October 3. Both Mahaffey's and Ghormley's names appeared in the captions of the deposition notices. According to Mahaffey, he believed, based on his experience, that the limited partners received reports relating to financial performance, "attend meetings and are well-informed about the dealings of their partnership."
Leland Jay, one of the limited partners who held a 3 percent interest in JR, had his deposition taken on November 10. According to Mahaffey: "[Jay] testified that as a JR limited partner he was unaware of how much income JR generated from the Property, or what portion of his partnership distributions were attributable to the Property (as opposed to JR's other holdings).... Mr. Jay further testified he did not know if JR had a license which allowed it to sell mobile homes, did not know whether JR sold mobile homes at the Property, and, if so, did not know if JR generated any income from such sales.... He testified that while he annually receives a schedule K-1 and an occasional memo from JR ... he had never seen JR's books or records." Mahaffey later claimed he decided almost immediately to dismiss the limited partners for a number of business reasons.
On November 15, the limited partners (except Rochelle) filed a demurrer to the third cause of action in the second cross-complaint.
On November 16, Mahaffey contacted Scheithauer. According to Scheithauer, Mahaffey complained about the 170.6 motion and stated that the Lawrences and the limited partners should be "aligned" against JR and Spiezia. Mahaffey stated that if the limited partners would withdraw their 170.6 motion, the Lawrences would dismiss the limited partners except for Rochelle. He also stated that he would "represent the Limited Partners in a `derivative' action against JR Enterprises and John Spiezia on contingency and would provide a `finders fee' to my law firm." Mahaffey was not concerned about a conflict of interest because the limited partners "were `not really at fault.'" The limited partners had been sued "`to get their attention' and be sure they were aware of how JR Enterprises had ignored the Lawrences' attempts to settle ...."
On November 17, Scheithauer was contacted by Ghormley. She called to ask whether there would be a stipulation to dismiss the limited partners in exchange for a withdrawal of the 170.6 motion. Scheithauer declined again but did ask about whether Rochelle would be included in such a stipulation. Ghormley said she would need to check with Mahaffey because Rochelle was a "special case." Nonetheless, on the same day, November 17, the Lawrences proceeded to file dismissals without prejudice as to all the limited partners except Rochelle.
On November 18, Mahaffey wrote Scheithauer a letter expressing his desire to "work with [the limited partners] on a business solution that includes, but is not limited to, a buyout of some or all of their interest" in exchange for financial documents. He also repeated the offer of a derivative action. Among other things, the letter stated: "It is transparent, however, from my deposition of Leland Jay, that the limited partners have absolutely no involvement with the general partner as to decisions regarding the management of the subject lease."
On November 21, Mahaffey called Scheithauer and told him that if the 170.6 motion was not withdrawn and was granted, the Lawrences would "re-sue" the limited partners they had just dismissed. On November 22, Judge Thomas J. Borris granted the 170.6 motion and transferred the interpleader action to Judge Andrew P. Banks.
On November 23 (the day before Thanksgiving), the Lawrences applied for an ex parte order striking the 170.6 challenge. Scheithauer could not attend as he was travelling for the holiday (a situation about which Mahaffey was aware), and an associate appeared instead.
At the hearing before Judge Gregory H. Lewis, Mahaffey told the court that the Lawrences had taken the deposition of one of the limited partners, "and became convinced that they are so limited in their involvement that those causes of action likely could never be proven." He argued that significant rulings had taken place before Judge Schumann, the limited partners' 170.6 motion amounted to "forum shopping," and they had acted in
At the conclusion of the hearing, Judge Lewis, apparently unaware that Judge Borris had already granted the 170.6 motion, granted the ex parte application to strike the motion.
On November 28, Rochelle, who had not yet appeared, filed a demurrer, cross-complaint and her own 170.6 motion. On November 29, the Lawrences filed a dismissal as to Rochelle, and on November 30, they filed an ex parte application to strike Rochelle's 170.6 motion. The Lawrences argued the dismissal rendered the 170.6 motion moot. On November 29, Judge Borris issued an order stating that the court would take no further action as the matter had already been reassigned to Judge Banks. The Lawrences attempted to proceed on their ex parte anyway, but Judge Schumann ordered the application off calendar due to Judge Borris's order confirming that the case had been transferred to Judge Banks.
At the hearing on December 5 before Judge Steven L. Perk, the Lawrences sought relief under section 473. Mahaffey told the court he had "inadvertently" failed to dismiss Rochelle at the same time as the other limited partners. Scheithauer challenged the assumption that the failure to dismiss Rochelle was a mistake at all, pointing to his declaration which recounted his conversations with Ghormley and Mahaffey, including Ghormley's "special case" comment and Mahaffey's attempt to bargain for Rochelle's dismissal. The court held that the Lawrences had not met their burden to show that relief under section 473 was appropriate.
On March 5, 2012, 12 of the limited partners filed the instant malicious prosecution action against the Lawrences, Mahaffey, Mahaffey & Associates, and Ghormley. The complaint pled two causes of action, malicious prosecution for bringing the case and malicious prosecution for continuing it. The Lawrences answered with a general denial. The attorneys filed an answer pleading several affirmative defenses.
In May, defendants filed anti-SLAPP motions. The attorneys' argument focused on probable cause and malice, arguing that the second cross-complaint did not allege the limited partners were liable for JR's contractual
The limited partners' opposition was accompanied by fairly voluminous evidence, including more than a dozen declarations. The declarations included all 12 of the limited partners, each of whom stated essentially that they were passive investors who had no involvement in JR's management or operations. The declarations also included those from other individuals, including attorneys (both the limited partners' and JR's), Spiezia, and others who had had contact with both Michael Lawrence and the attorneys, testifying as to their interactions. The oppositions argued the limited partners had met their burden of demonstrating a prima facie case of malicious prosecution existed, and the motions should therefore be denied.
In their reply briefs, defendants raised the issue of favorable termination for the first time. Mahaffey also submitted a substantive declaration which stated that his reason for dismissing the limited partners was a business decision. Ghormley also filed a declaration, essentially stating she was following Mahaffey's directions. The Lawrences filed a declaration from Michael, in which he claimed he was relying on the advice of counsel when he decided to sue the limited partners. Mahaffey filed numerous evidentiary objections and the Lawrences also filed two others.
The limited partners then filed objections to the reply declarations, arguing that defendants could not submit new evidence with their reply. They also filed a declaration from their attorney to address the issues raised by the attorneys for the first time in the reply.
The trial court issued a tentative ruling denying the motions. Among other things, the court stated the evidence showed it was "not at all likely" that defendants "can show any control exercised by limited partners — in fact evidence shows the defendants knew the limited partners were not in control." Because no tort claims were alleged, the tortious conduct exception in the Corporations Code did not apply, and evidence of malice was "ample." The tentative ruling also granted various requests for judicial notice, overruled the Lawrences' and the attorneys' evidentiary objections, and sustained the limited partners' objection to the late reply declarations. The court took
Section 425.16, subdivision (e), specifies the type of acts included within the statute's ambit. An "`act in furtherance of a person's right of petition or free speech ... in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
On appeal, we "review an order granting an anti-SLAPP motion de novo, applying the same two-step procedure as the trial court. [Citation.]" (Cole, supra, 206 Cal.App.4th at p. 1105.) In conducting our review, "[w]e consider `the pleadings, and supporting and opposing affidavits ... upon which the liability or defense is based.' [Citation.] However, we neither `weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup).)
With respect to evidentiary challenges submitted in connection with an anti-SLAPP motion, we review the trial court's rulings for abuse of discretion. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444 [57 Cal.Rptr.3d 885].) "A trial court's exercise of discretion will be disturbed only for clear abuse. [Citation.]" (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 827 [147 Cal.Rptr.3d 340].)
Before we address the substance of the anti-SLAPP motions, we address defendants' evidentiary argument. Defendants contend the trial court abused its discretion by excluding the declarations of Michael, Mahaffey and Ghormley that were filed with their reply briefs in the trial court. As noted above,
This argument is misplaced. Neither the Lawrences nor the attorneys cite any anti-SLAPP cases in which, for the first time in reply, the moving parties introduced entirely new evidence. They cite cases in which courts have considered evidence in reply, but such evidence was supplemental to evidence submitted in the moving papers, not brand new. In Wong v. Jing (2010) 189 Cal.App.4th 1354 [117 Cal.Rptr.3d 747] (cited by defendants for the first time in their reply briefs), the court, in dicta, suggested that a reply declaration was sufficient to establish a defendant's lack of liability. There was, however, no explicit evidentiary ruling in that case.
Defendants also argue the statutory language of section 425.16, subdivision (b)(2), requires the court to consider all evidence submitted. But the statute neither suggests nor states that normal rules of evidence and procedure do not apply to anti-SLAPP motions, and again, defendants offer no authority suggesting otherwise. They contend their decision was justified because they could not possibly guess what the limited partners might offer to meet their burden. Defendants are wrong — they knew from the complaint exactly what the basis of the limited partners' argument was: "The purpose of the Lawrences and their counsel in bringing suit against the Limited Partners was not to pursue some legal right that they actually believed they possessed. Rather, the purpose was a malicious scheme, concocted by the Lawrences, Douglas Mahaffey and Susan Ghormley, to so harass and vex the Limited Partners that the Limited Partners would — in turn — harass and vex JR Enterprises and otherwise use their power as the Limited Partners to force JR Enterprises into settling ... and as leverage to help the Lawrences obtain `a business resolution of their dispute with JR Enterprises,' including, but not limited to, a buyout of the partnership interests of the Limited Partners." The complaint then goes on to detail the sequence of events with regard to naming the limited partners in the interpleader action, including the 170.6 motions. It discusses conversations and statements made by the attorneys. It is simply specious for defendants to argue they had absolutely no idea what evidence the limited partners would be presenting.
This rule is based on the same solid logic applied in the appellate courts, specifically, that "[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument." (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [13 Cal.Rptr.2d 432]; see Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 720, fn. 10 [153 Cal.Rptr.3d 62].)
To the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance but only filled gaps in the evidence created by the limited partners' opposition. Defendants' decision to wait until the reply briefs to bring forth any evidence at all, when the limited partners would have no opportunity to respond, was simply unfair. Thus, while the trial court had discretion to admit the reply declarations, it was not an abuse of discretion to decline to do so.
In any event, even if we were to consider this evidence, it is ultimately of little import, due to the manner in which anti-SLAPP motions are reviewed. As we discussed above, "we neither `weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
We keep in mind that malicious prosecution is a "disfavored action." (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 566 [264 Cal.Rptr. 883].) "[T]he elements of [malicious prosecution] have historically 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 Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 [254 Cal.Rptr. 336, 765 P.2d 498] (Sheldon Appel).)
"To determine whether a party has received a favorable termination, we consider `"the judgment as a whole in the prior action ...." [Citation.]' [Citation.] Victory following a trial on the merits is not required. Rather, `"the termination must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit." [Citation.]' [Citation.]" (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 741 [62 Cal.Rptr.3d 155, 161 P.3d 527].) The defendants argue that the dismissal of the limited
"A voluntary dismissal is presumed to be a favorable termination on the merits ...." (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1400 [69 Cal.Rptr.3d 561].) Here, defendants offer no evidence to rebut this presumption other than Mahaffey's excluded declaration, which is, of course, not evidence at all.
Even if we were to consider Mahaffey's declaration on this point, his self-serving testimony is belied by other statements, such as telling the court that "the limited partners have absolutely no involvement with the general partner as to decisions regarding the management of the subject lease." Such a contemporaneous statement strongly suggests the limited partners were dismissed because they had no liability. At best, the evidence is conflicting and therefore cannot defeat the limited partners' prima facie case. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) From either angle, the court properly found the limited partners had set forth a prima facie case of favorable termination.
More specifically, "`"probable cause to bring an action does not depend on 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. [Citation.]"' [Citation.] Probable cause exists if the claim is legally sufficient and can be substantiated by competent evidence. [Citation.]" (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 448-449 [117 Cal.Rptr.3d 3].) "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 recovery upon a legal theory which is
They therefore argue that given these facts, no reasonable attorney could ever have thought it was reasonable to bring the claims in the second cross-complaint for breach of contract, breach of covenant, and declaratory relief. The breach of contract cause of action specifically alleged a breach of the lease. The second cause of action for breach of covenant alleged JR had breached a covenant in the lease by conducting illegal mobilehome sales, and the limited partners "ratified this illegal conduct." The basis for the second cause of action was that such alleged illegal activity violated a specific provision in the lease. The declaratory relief claim merely alleged there was a controversy and sought a declaration interpreting the responsibilities of the parties. Based on the narrowly circumscribed liability of limited partners under law and the nature of the claims alleged in the second cross-complaint, we agree with the limited partners that they have stated a prima facie case demonstrating a lack of probable cause. We therefore examine defendants' evidence to see if they can defeat the claim as a matter of law. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
Defendants contend that the limited partners were not exempt from tort liability, relying on an exemption in Corporations Code section 15903.03, subdivision (a). This is an interesting argument, considering, as described above, the cross-complaint alleged claims for breach of contract, breach of a covenant in that same contract, and declaratory relief. The Lawrences claim the allegations relating to the second cause of action, relating to the mobilehome sales, were sufficient to constitute a tort theory of liability. The attorneys contend "the evidence presented to the court established at least an inference that the Limited Partners were liable in tort to the Lawrences." They point to Mahaffey's assertions as to his understanding of limited partners' participation in partnership dealings, again pointing to these statements in his excluded declaration.
The Lawrences, for the first time in their reply brief, argue they relied on Mahaffey's advice. This is often a valid defense. "Reliance upon the advice of counsel, in good faith and after full disclosure of the facts, customarily establishes probable cause. [Citations.]" (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556 [8 Cal.Rptr.2d 552].) As discussed above, however, we do not entertain new points raised for the first time in a reply brief absent good cause. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [60 Cal.Rptr.2d 770].) There is absolutely no sound reason this issue could not have been raised in the Lawrences' opening brief. We therefore grant the limited partners' motion to strike pages 13 to 17 of the Lawrences' reply brief.
Further, even if we were to consider this argument, it is premised on statements made by Mahaffey and Michael in their excluded reply declarations and therefore unsupported by admissible evidence. In sum, we conclude the limited partners successfully set forth a prima facie showing of the lack of
Such other evidence "is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose." (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157 [85 Cal.Rptr.2d 726].) "Suits with the hallmark of an improper purpose" include "those in which: `"... (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim."' [Citation.]" (Ibid.)
Because direct evidence of malice is rarely available, "malice is usually proven by circumstantial evidence and inferences drawn from the evidence." (HMS Capital, supra, 118 Cal.App.4th at p. 218.)
The trial court found there was "ample" evidence of malice, and much of that evidence relates directly to Mahaffey. Mahaffey's statement during the first breach of lease case that "[t]he limited partners make no decisions" strongly suggests that Mahaffey was well aware that as a general rule, limited partners did not actively participate in the management of a limited partnership.
After that case was over, Mahaffey sent an e-mail to JR's counsel that included a number of thinly veiled threats of ongoing litigation, pointing to "many other battles ahead between these clients." He warned of a new action and stated that if JR did not wish to discuss settlement seriously, "[t]here will be many opportunities in the next five years of Superior Court and Court of Appeal litigation to further develop the clients view points.... At this point I assume they understand that 500K a year of an attorneys fees budget on this lease will become the norm for many years to come ...." Several months later, after the interpleader action was filed, Mahaffey again stated that if JR did not settle, they could look forward to "the next five to ten years are going to be between our clients in multiple Courts" which would be a "fee generator" for the lawyers in the case. Taken together, all of these statements raise a strong inference that Mahaffey's (and the Lawrences') goal in the ongoing litigation was not to resolve genuine legal disputes, but to push JR into a settlement.
Rochelle was brought into the interpleader action when the Lawrences filed the second cross-complaint, and the other limited partners were added by Roe amendment shortly thereafter. A number of things happened thereafter that suggest the limited partners were sued for an improper purpose. When Scheithauer asked Ghormley why the limited partners had been sued for breach of a lease to which they were not parties, she responded that "Doug Mahaffey has plans for the Limited Partners."
After the limited partners (except Rochelle) filed a demurrer and 170.6 motion, Mahaffey contacted Scheithauer and claimed that the Lawrences and the limited partners should be "aligned" against JR and Spiezia. He offered to dismiss the limited partners (except Rochelle) if they would withdraw the 170.6 motion and then offered to "represent the Limited Partners in a `derivative' action against JR Enterprises and John Spiezia on contingency and ... provide a `finders fee'" to Scheithauer's firm. He was unconcerned about a conflict of interest because the limited partners "were `not really at fault'" and had been sued "`to get their attention' and be sure they were aware of how JR Enterprises had ignored the Lawrences' attempts to settle ...." After the limited partners were dismissed, Mahaffey called Scheithauer and told him that if the 170.6 motion was not withdrawn and was
The only evidence to contradict the facts the limited partners established was Mahaffey's reply declaration, which, as we have noted several times, was properly deemed inadmissible. But even if we did consider Mahffey's self-serving declaration, at best it would serve to create factual disputes that are not sufficient grounds upon which to grant the anti-SLAPP motion. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) Was the evidence sufficient? "Overwhelming" would be a better word. The limited partners more than met their burden to establish a prima facie case of malice as to Mahaffey.
Ghormley's argument, supported by evidence raised for the first time below in her stricken reply declaration, essentially argued that she was an associate who was following Mahaffey's instructions and nothing more. Even if we considered the stricken reply, there is sufficient evidence of malice to overcome an anti-SLAPP motion.
The limited partners presented evidence that Ghormley signed 25 of the Roe amendments, and her name appeared in the captions of the five deposition notices served on the limited partners. She also communicated with Scheithauer, telling him, when asked why the limited partners were being sued for breach of a lease to which they were not parties, that "Doug Mahaffey has plans for the Limited Partners." In another call, in which she offered to dismiss the limited partners if the first 170.6 motion was withdrawn, she referred to Rochelle as a "special case." When Rochelle was finally dismissed, Ghormley "personally processed" the paperwork.
Attorneys have been held liable for associating into cases containing frivolous claims. (Cole, supra, 206 Cal.App.4th at p. 1119.) The attorneys in Cole claimed "they did no actual work" (id. at p. 1115) on the case underlying the malicious prosecution action and had merely associated in on the matter. The court rejected their argument that they could avoid liability for malicious prosecution "merely by showing that they took a passive role in that case as standby counsel." (Id. at p. 1100.)
We agree with the trial court that the case against Ghormley was not overwhelming, but her actions were sufficient to raise an inference of malice. She did not merely sign documents but knew enough about the case to speak to opposing counsel and to propose dismissal in exchange for withdrawing a 170.6 motion — an action that strongly gives rise to an inference that she knew the case had no merit and was being prosecuted for an improper purpose. Thus, the evidence of malice is sufficient to overcome an anti-SLAPP motion.
Michael's prelitigation conduct, when taken together with the lack of probable cause, is sufficient to give rise to an inference of malice due to improper purpose. The evidence demonstrated that Michael wanted to sell and redevelop the property, which was impossible due to the long-term lease, and was actively looking for ways to end the lease. Among other things, he tried to reach a side deal with Spiezia, tried to organize the limited partners against JR, and tried to persuade the City of Anaheim to "threaten condemnation" to achieve his goal of terminating the lease. Taken together, these facts raise an inference that Michael did not bring the limited partners into the case because he truly believed they were liable but as another tactic to create enough misery for JR that they would settle the case. Because of the close relationship between the Lawrences, it is reasonable to infer that Victoria was aware of Michael's actions and shared his intent. We would find the same to be true, incidentally, if Victoria had been the more active spouse in this matter.
The Lawrences offer no evidence sufficient to overcome these facts as a matter of law. Michael's reply declaration, as we have noted, was properly excluded, and at best it would create factual disputes insufficient to overcome the limited partners' prima facie case. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) Victoria offered no evidence at all. We therefore conclude the court did not err in finding the limited partners had established a prima facie case of malice as to the Lawrences.
The trial court's order is affirmed. The limited partners are entitled to their costs on appeal.
Rylaarsdam, Acting P. J., and Bedsworth, J., concurred.
As court records, these documents are subject to judicial notice under Evidence Code sections 452, subdivision (d), and 459. Judicial notice may be granted if the documents for which notice is sought are at least minimally relevant to the instant appeal. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [31 Cal.Rptr.2d 358, 875 P.2d 73].) The first four documents listed above meet that standard, but we see no particular relevance as to the final document, this court's opinion in Grunder v. Mahaffey. The request is therefore granted as to the first four documents.
