Filed 2/9/22; Modified and Certified for Part. Pub. 3/4/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LA INVESTMENTS, LLC, et al.,

Plaintiffs and Respondents,

v.

RICHARD SPIX et al.,

Defendants and Appellants.

 B304734

 (Los Angeles County

 Super. Ct. No. BC544662)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Barbara Marie Scheper, Judge. Affirmed.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, 

Bartley L. Becker and Kenneth C. Feldman for Defendants and 

Appellants.

The E. Johnson Law Firm, Erik L. Johnson; Houston Law 

of California and Troy G. Houston for Plaintiffs and Respondents.

——————————
2

Defendants and appellants Richard Spix, Deborah 

Elizabeth Martin, and Law Office of Spix & Martin (collectively, 

the Attorney Defendants) appeal from a judgment following a 

jury’s verdict finding them liable to plaintiffs and respondents LA 

Investments, LLC, a California limited liability company (LAI) 

and Peter Starflinger (Starflinger) (sometimes collectively 

referred to as plaintiffs) for malicious prosecution. After the trial 

court determined as a matter of law the Attorney Defendants had 

no probable cause to maintain a lawsuit in which they 

represented defendant, Rosa Banuelos (Banuelos), the jury 

determined the Attorney Defendants acted with malice and 

awarded compensatory damages and punitive damages. Finding 

no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Kevin Action and Underlying Action

Sometime in 20091 the Attorney Defendants, on behalf of 

Banuelos’s son, Kevin Banuelos (Kevin), filed an action against

218 Properties, LLC, (218) involving a disputed determination 

that Kevin was not financially eligible to rent a mobilehome

space (Kevin Action). 

While the Kevin Action was pending, on June 26, 2010, 

Banuelos entered into a contract to sell her mobilehome in Park 

1 We cannot locate the exact date in the record on appeal. 

As will be seen, appellants have provided neither a complete 

record, nor adequate citations to the record. It is appellants’ 

burden to provide an adequate record on appeal. (Amato v. 

Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.) To the 

extent the record is inadequate, we make all reasonable 

inferences in favor of the judgment. (Ibid.)
3

Granada Trailer Lodge (Park)2 to Rosa Rodriguez for $55,000. 

218 owns the Park and LAI owns 100 percent of the membership 

interest in 218. Rodriguez submitted an application for residency 

at the Park in connection with the contract. The application 

included paystubs showing monthly gross income of $4,000, but 

Rodriguez’s credit report showed she owed $5,112 per month in 

loan payments. 

On July 2, 2010, 218 attorney Douglas Beck sent a letter to 

Rodriguez asking for additional information in support of her 

application for residency (Beck Letter). The Beck Letter 

requested three categories of documents: (1) a schedule of real 

estate owned, mortgage statements for each mortgage loan, and a 

schedule of gross income, expenses, and net income for the years 

2009 and 2010; (2) verification of funds to complete the $55,000 

purchase of Banuelos’s mobilehome; and (3) written confirmation 

Rodriguez intended to reside in the mobilehome and she did not 

intend to rent to her son or anyone else. 

Rodriguez did not respond to the Beck Letter and on July 7, 

2010, exercised her right to cancel the purchase because she did 

not want to provide the documentation requested. 

About a week later on July 15, 2010, Banuelos submitted a 

declaration in the Kevin Action in support of Kevin’s request for a 

preliminary injunction seeking, inter alia, an order that the 

mobilehome park must receive permission from the trial court 

before denying approval of any lease transfer. Banuelos attached 

three exhibits to her declaration: (1) a June 28, 2010 notice to 

prospective tenant(s) of Park Granada advising the mobilehome

2 The Park is also referred to as Park Granada Mobile 

Home Park. 
4

park was in the process of being converted to condominiums 

(Notice); (2) the July 2, 2010 Beck Letter; and (3) a July 14, 2010 

letter from the City of Carson to LAI stating the application to 

approve the conversion had been denied (City of Carson Letter). 

Banuelos declared her mobilehome in the Park had been 

listed for sale for about four months and Rodriguez had entered 

into an agreement to purchase it. She stated about one week 

before escrow was to close, Rodriguez backed out of the 

transaction, forcing her to cancel the escrow. She also stated 

there was no application to convert to condominiums pending for 

the Park. 

On July 20, 2010, five days after Banuelos filed her 

declaration in the Kevin Action, the Attorney Defendants, on 

behalf of Banuelos, filed an action for declaratory and injunctive 

relief, statutory violations, interference with contractual and 

economic advantage, and intentional and negligent infliction of 

emotional distress (Underlying Action). They named 218 and 

LAI as defendants. The gravamen of the complaint was 218 and 

LAI had attempted to prevent mobile homeowners from 

exercising their rights to sell their mobilehomes to anyone other 

than the defendants or their proxies. Banuelos alleged 

Starflinger, a manager of the Park, retaliated against her saying 

he was not going to make selling her mobilehome easy because he 

had spent more than $250,000 in legal fees litigating against her 

son. Banuelos alleged the sale to Rodriguez fell through because 

of the unreasonable conduct of the Park in withholding approval 

of buyers. Banuelos attached to the complaint the same three 

exhibits she attached to her declaration filed in the Kevin Action. 

Meanwhile, on July 29, 2010, 218 filed its opposition to the 

motion for preliminary injunction in the Kevin Action, along with 
5

the declarations of Beck and Starflinger. Starflinger explained 

while reviewing Rodriguez’s application for residency, he wanted 

to approve it because he “did not want to give Ms. Banuelos any 

excuse for her to join her son in a multiplicity of lawsuits.” He 

asked Beck to review the application as it appeared Rodriguez 

did not meet the financial qualifications. According to 

Starflinger, when Rodriguez did not respond to the request to 

provide additional financial information, the Park declined her 

application. 

Beck reviewed Rodriguez’s application, which provided for 

a purchase price of $55,000. The application included a net 

worth statement of Rodriguez showing total assets of $1,273,300. 

The net worth statement did not show a source for the purchase 

price, so it appeared Rodriguez would be incurring additional 

debt to finance the purchase. Beck also reviewed Rodriguez’s 

credit report, and it showed monthly loan payments of $5,112. 

But Rodriguez stated her gross monthly salary was $4,000, with 

rental income of $2,800. As a result, Beck sent a letter to Park 

management to transmit to Rodriguez asking for information he 

thought was necessary to assess her qualifications. Beck also 

declared to a conversation he had with Harry Madera, who was 

apparently an agent representing Rodriguez. Beck asked Madera 

where Rodriguez was getting the funds for the purchase. Madera 

stated Rodriguez was getting the money from her sister. Beck 

never heard back from Madera or Rodriguez, so on July 19, 2010, 

he drafted a letter to Rodriguez denying her application. 

The record on appeal does not reflect the outcome of the 

motion for preliminary injunction, but we assume it was denied.3

3 Otherwise, presumably the Attorney Defendants would 

rely on the trial court’s granting of the preliminary injunction as 
6

On January 10, 2011, a new buyer made an offer to 

purchase Banuelos’s mobilehome for $51,000, which Banuelos 

accepted. The new buyer’s application for residency was 

approved, and the sale closed February 28, 2011. 

Following several demurrers and motions to strike, it 

appears the operative third amended complaint4 filed April 4, 

2011 was reduced to three causes of action against R22, Inc. dba 

Star Management (R22, served as Doe 1), the authorized agent 

working on behalf of the owner, 218, and Starflinger (served as 

Doe 2), the agent/representative of R22: (1) second cause of 

action for violation of Civil Code section 798.74; (2) ninth cause of 

action for intentional infliction of emotional distress; and 

(3) tenth cause of action for negligence. On these, R22 and 

Starflinger filed motions for summary judgment. 

The trial court granted summary judgment as to each 

defendant. According to this Division’s opinion in Banuelos v. 

218 Properties, LLC (Sept. 3, 2013, B241645) [nonpub. opn.] 

(Banuelos I), the trial court found: “(1) as to the cause of action 

for violation of Civil Code section 798.74 and the derivative 

negligence claim, the undisputed evidence showed . . . Rodriguez 

cancelled her purchase of [Banuelos]’s mobile home because she 

evidence they had probable cause to continue the Underlying 

Action. (See Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1011 

[one way a defendant can negate absence of probable cause and 

defeat malicious prosecution claim is by showing interim victory 

such as granting of a preliminary injunction in the underlying 

case].)

4 The first, second, and third amended complaints are not 

in the record on appeal. Nor are the trial court’s minute orders 

sustaining the demurrers.
7

did not want to respond to the requests for further information 

and those requests were objectively reasonable; (2) as to the 

intentional interference with contract cause of action, it was 

undisputed . . . Rodriguez exercised her contractual right to 

cancel the purchase and . . . defendants were not strangers to the 

contract; (3) as to the interference with economic advantage 

cause of action, the undisputed evidence showed . . . the 

interference was not wrongful and the requests for additional 

information were objectively reasonable;[5] and (4) as to the 

intentional infliction of emotional distress cause of action, the 

undisputed evidence showed defendants did not engage in 

extreme or outrageous conduct and plaintiff did not suffer severe 

emotional distress.” (Banuelos I, supra, B241645 at p. 6.)

Banuelos appealed, and a different panel of this Division

affirmed in Banuelos I. The Division held, inter alia, “the 

defendants were well within their rights in demanding that the 

prospective purchaser located by [Banuelos] provide satisfactory 

evidence of an ability to pay the required park rent and charges. 

Civil Code section 798.74 allows park owners to refuse to approve 

mobile home purchasers for residency based on their ‘lack of 

ability to pay park rent and charges.’ ” (Banuelos I, supra, 

B241695 at p. 9.)6 

5 It is unclear from the record on appeal where the 

interference with economic advantage and intentional infliction 

of emotional distress causes of action arose, given R22’s and 

Starflinger’s motions for summary judgment do not address 

them. 

6 This Division also affirmed on procedural grounds. 

Banuelos I explained, Banuelos’s “arguments improperly rely on 

evidence to which objections were sustained. However, 
8

II. The Instant Action

A. Complaint

Six months after issuance of the remittitur in Banuelos I, 

on May 5, 2014, LAI, 218, R22, and Starflinger filed the instant 

action against Banuelos and the Attorney Defendants, alleging 

causes of action for malicious prosecution and defamation. 

“The complaint alleged in relevant part: the [Underlying 

Action] was terminated in LAI’s favor. Banuelos and her counsel 

lacked probable cause to initiate and prosecute the [Underlying 

Action], no reasonable attorney would have thought the claims 

were legally tenable, and there was a complete failure to 

investigate the facts before bringing suit. The [Underlying 

Action] ‘was predicated on the charge that [LAI and others] acted 

in concert to unreasonably, intentionally, and wrongfully refuse 

the transfer of mobile homes to [LAI and others] or their proxies.’ 

Had Banuelos and her counsel ‘conducted any investigation 

whatsoever, they would have discovered that there was only one 

occasion—which occurred more than five years earlier, before 

Plaintiffs 218 . . . , LAI, and R22 even had any involvement with 

Park Granada—where the sale of a mobile home to a prospective 

[Banuelos] does not challenge the court’s rulings sustaining 

defendants’ objections to this evidence. As a result, any issues 

concerning the correctness of the court’s evidentiary rulings have 

been waived and we consider all such evidence to have been 

properly excluded. [Citation.] [¶] In addition, [Banuelos] does 

not address the numerous alternate bases for the trial court’s 

rulings, including the court’s conclusion that her separate 

statement was deficient and that [LAI] was not liable for the acts 

of 218 . . . . Therefore, [Banuelos] has failed to show that 

summary judgment was improper.” (Banuelos I, supra, B241645

at p. 12, fn. omitted.) 
9

third party buyer was turned down before it was sold to an 

alleged “proxy” of Plaintiff Starflinger.’ Further, Banuelos and 

her counsel acted with malice, as evidenced by, inter alia,

derogatory comments about Starflinger in the presence of others. 

Finally, the cause of action for defamation was predicated on a 

June 2013 statement by Martin, in the presence of others, that 

Starflinger had been sued by the SEC for securities fraud. ‘This 

statement was . . . indisputably false, as . . . Starflinger has never 

been sued by the SEC for securities fraud.’ Further, said 

statement was defamatory per se and was not privileged because 

it was not made in the course of a judicial proceeding.” (LA 

Investment v. Banuelos (June 30, 2016, B260151) [nonpub. opn.] 

at p. 6 (Banuelos II).)

B. Special Motion to Strike and Banuelos II

The Attorney Defendants filed a special motion to strike 

the complaint, and Banuelos joined. The motion asserted, inter 

alia, LAI could not prevail on the malicious prosecution claim 

because the facts known as of the date of filing of the Underlying 

Lawsuit established probable cause as a matter of law. The 

motion also argued LAI could not establish the element of malice 

and that Banuelos had a complete defense because she acted on 

the advice of counsel. 

“In opposition, LAI argued a lack of probable cause can be 

established by showing either that the prior action was initiated

without probable cause, or that it continued to be prosecuted 

after Banuelos learned it was not supported by probable cause.” 

(Banuelos II, supra, B260151 at pp. 7–8.) LAI further contended 

it could show Banuelos and the Attorney Defendants acted with 

malice and that Banuelos’s invocation of the advice of counsel 

defense was premature. 
10

The trial court denied the special motion to strike. 

The Attorney Defendants appealed. A different panel of 

this Division reversed in part and remanded with directions to 

grant the motion as to the defamation claim, and otherwise

affirmed in Banuelos II, supra, B260151 at page 28. This 

Division determined the trial court properly denied defendants’ 

special motion to strike the cause of action for malicious 

prosecution.7

C. Trial 

With the agreement of counsel, the trial court dismissed 

plaintiffs 218 and R22 and agreed to Attorney Defendants’ 

request to bifurcate the punitive damages phase of trial. It was 

also agreed argument regarding probable cause would be made to 

the court, not the jury, and the court would make a finding before 

the case was argued to the jury. 

The case was tried in September 2019. On September 24, 

2019, the trial court denied plaintiffs’ motion for directed verdict 

and denied the Attorney Defendants’ motion for nonsuit. The 

court found as a matter of law the Attorney Defendants had no 

probable cause to initiate the Underlying Action.8 The court 

7 Our decision in Banuelos II cannot form the basis for a 

finding of probable cause or malice in the instant appeal. (See 

Code Civ. Proc., 425.16, subd. (b)(3).)

8 On September 23, 2019, both sides filed requests for 

judicial notice, which the trial court stated it had “read and 

considered.” The record on appeal does not contain the Attorney 

Defendants’ request(s) for judicial notice. Plaintiffs 

supplemented the record on appeal to include the following 

requests for judicial notice dated: September 19, 2019; 

September 22, 2019; and October 1, 2019. Based on the timing of 
11

stated, “I think this case was utterly lacking in probable cause 

from its beginning to its end and that no reasonable attorney 

would have maintained it.” The court also found the two 

witnesses (Spix and Martin) who testified they thought what they 

did was supported by probable cause were “utterly lacking” in 

credibility, stating, “I found all three of the defendants’ testimony

[Banuelos was the third] to be combative and their refusal to 

answer straightforward questions in a straightforward manner 

contributes to the court’s finding that they are lacking in 

credibility.” The court found the only reason to commence or 

continue the underlying action was to harass the Park and 

Starflinger. “So the court finds that there was no probable cause 

to commence the case and certainly no probable cause to continue 

it.” 

On September 30, 2019, the jury returned its verdict. The 

jury found the Attorney Defendants acted primarily for a purpose 

other than succeeding on the merits of the claim and that their 

conduct was a substantial factor in causing plaintiffs harm.9 The 

jury found the Attorney Defendants engaged in the conduct with 

malice, oppression, or fraud. 

the court’s comments, it appears the court “read and considered”

plaintiffs’ September 22, 2019 request. It contains the moving 

and opposing papers on the motion for preliminary injunction in 

the Kevin Action, and the moving and opposing papers on the

motion for summary judgment in the Underlying Action. 

9 The jury found Banuelos did not act primarily for a 

purpose other than succeeding on the merits and was not a 

substantial factor in causing harm to any plaintiff. 
12

The jury awarded compensatory damages representing

attorney fees and costs in the sum of $171,465.09 and emotional 

distress damages in the sum of $10,000. The trial court added 

interest of $85,581.18 to the compensatory damages award. With 

respect to punitive damages, the jury awarded LAI punitive 

damages from Spix of $300,000 and from Martin $25,000. The 

jury awarded Starflinger punitive damages from Spix of $15,000 

and from Martin $5,000. 

Judgment was entered December 3, 2019. Following denial 

of their motion for judgment notwithstanding the verdict and 

motion for new trial, Attorney Defendants timely appealed.10 

CONTENTIONS

The Attorney Defendants contend (1) there was probable 

cause to prosecute the Underlying Action; (2) the evidence was 

insufficient to support the jury’s finding of malice; (3) the 

compensatory damages award must be vacated and set aside 

because LAI and Starflinger did not pay anything for attorney

10 We asked counsel to brief whether the March 4, 2020 

notice of appeal was timely based on the notice of entry of 

judgment served by mail by the clerk of the superior court on 

December 3, 2019. We have reviewed the parties’ letter briefs. 

We grant defendants’ unopposed motion to augment the record on 

appeal filed January 7, 2022. We deem the clerk’s certificate of 

mailing effective December 4, 2019, the date it was signed by the 

clerk. (See Code Civ. Proc., § 659, subd. (a)(2) [party intending to 

move for new trial shall file notice of intention to move for new 

trial within 15 days of “date of mailing notice of entry of 

judgment by the clerk of the court”].) Therefore, the time having 

been extended by 30 days, the notice of appeal was timely filed. 

(See Cal. Rules of Court, rule 8.104(a)(1)(A)-(B).)
13

fees and costs; and (4) the punitive damages awards are excessive 

as a matter of law. 

DISCUSSION

To state a cause of action for malicious prosecution, 

plaintiff must plead and prove the prior action (1) was 

commenced by or at the direction of defendant and was pursued 

to a legal termination in plaintiff’s favor; (2) was brought without 

probable cause; and (3) was initiated with malice. (Sheldon 

Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (Sheldon 

Appel).) A malicious prosecution suit may be maintained even if 

only some of the claims in the prior action lacked probable cause. 

(Crowley v. Katleman (1994) 8 Cal.4th 666, 676.) 

There is no dispute the Underlying Action was commenced 

by the Attorney Defendants and plaintiffs obtained a favorable 

termination in the Underlying Action. The issues on appeal 

concern probable cause, malice, and compensatory and punitive 

damages.

I. The Trial Court Correctly Found the Attorney Defendants

Had No Probable Cause to Initiate or Maintain the

Underlying Action

The question whether defendant had probable cause for 

instituting the prosecution is always a matter of law to be 

determined by the trial court. (Sheldon Appel, supra, 47 Cal.3d 

at p. 875.) The question whether, on a given set of facts, there 

was probable cause requires a sensitive evaluation of legal 

principles and precedents, a task generally beyond the ken of lay 

jurors. (Ibid.) Malicious prosecution includes continuing to 

prosecute a lawsuit discovered to lack probable cause. (Zamos v. 

Stroud (2004) 32 Cal.4th 958, 970.) The reasonableness of 
14

counsel’s persistence in continuing to prosecute is a question of 

law to be decided on a case-by-case basis. (Ibid., fn. 9.) 

Whether a reasonable lawyer would have thought the claim 

legally tenable—an objective inquiry—is a legal issue we review 

de novo. (Arcaro v. Silva & Silva Enterprises Corp. (1999) 

77 Cal.App.4th 152, 156; see Hufstedler, Kaus & Ettinger v. 

Superior Court (1996) 42 Cal.App.4th 55, 63 [where no disputed 

questions of fact relevant to probable cause issue, matter 

reviewed on appeal by de novo review].) 

A party has probable cause to bring a lawsuit if, objectively 

viewed, its claims were legally tenable, meaning a reasonable 

attorney would conclude the underlying action was not totally 

and completely without merit. (Sheldon Appel, supra, 47 Cal.3d 

at p. 885.) “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 untenable under the facts 

known to him.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 

164–165.)

The Attorney Defendants asserted in the Underlying Action 

that LAI and Starflinger interfered with Banuelos’s contract to 

sell her mobilehome by unreasonably refusing to approve a sale. 

They also asserted the Beck declaration from the Kevin Action 

evidenced Rodriguez’s ability to pay about $300 per month in 

rent. In their opening brief, Attorney Defendants fail to 

differentiate between what they knew upon initiation of the 
15

Underlying Action and what they learned after its inception.11 

Attorney Defendants offer the following evidence in support of 

their contention they had probable cause. 

Banuelos testified Starflinger “didn’t let me sell the mobile 

home” and “[h]e was not going to let me do it.” Banuelos then 

told her attorneys all the facts as she knew them. 

Spix testified at the time the Rodriguez sale fell through, 

he was aware the mobilehome residency laws permitted inquiry 

concerning the ability of a prospective tenant to pay rent. He 

agreed the law stated approval of a prospective tenant cannot be 

withheld if financial ability of the prospective tenant is 

established. However, he believed the Beck Letter was intrusive 

and requested more information than was permitted under the 

statute. Spix also testified the Notice sent to Rodriguez was a lie, 

because the condominium conversion had been denied for more 

than a month before the Notice was given. Spix testified one of 

the bases for his allegation the sale fell through was due to the 

Park’s unreasonable conduct in not approving the sale to 

Rodriguez.12

11 In their reply brief, Attorney Defendants touch on 

whether they had probable cause to continue the Underlying 

Action to a final judgment, but they fail to cite to the record on 

appeal throughout the reply. We consider the points waived. 

(See Mansell v. Board of Administration (1994) 30 Cal.App.4th

539, 545 [“We are not required to search the record to ascertain 

whether it contains support for [appellant’s] contentions”].)

12 The Attorney Defendants represent, “Mr. Spix believed 

that Mr. Starflinger’s request for information was a pretext for 

denying Ms. Rodriguez’s application to rent” citing page 2606 of 

the reporter’s transcript. Page 2606 does not reflect the 

referenced testimony. 
16

The Attorney Defendants fail to address Spix’s admission 

during his testimony that he initiated the Underlying Action to 

spur the closing of escrow and to free Banuelos from the Park. 

The Attorney Defendants also fail to address the requests for 

judicial notice the lower court relied on in reaching its conclusion 

the Underlying Action lacked probable cause.13 

When they filed the Underlying Action, the Attorney 

Defendants had the exhibits to the complaint—the Notice, Beck 

Letter, and City of Carson Letter. None constitute probable 

cause to institute or continue the Underlying Action.

As for the Notice, in her testimony, Martin acknowledged 

Rodriguez viewed the prospect of conversion favorably.

Therefore, a reasonable attorney would have concluded even if 

Attorney Defendants believed the Notice contained a lie, it did 

not cause Rodriguez any hesitation in pursuing a purchase of 

Banuelos’s mobilehome. 

As to the City of Carson Letter, the Attorney Defendants do 

not argue it legitimately formed a basis for initiating or 

continuing the Underlying Action.

The Beck Letter is another matter, but we do not believe it 

constituted probable cause to initiate the Underlying Action. The 

Beck Letter raised three concerns and requested additional 

information on each—Rodriguez’s mortgage debt, the source of 

$55,000 in cash she was going to pay for the mobilehome, and the 

Park’s rules prohibiting subletting, given Rodriguez disclosed her 

adult son would occupy the mobilehome. 

13 As previously noted, the Attorney Defendants did not 

supply us with their request(s) for judicial notice.
17

Spix testified the Beck Letter, rather than a request or 

phone call directly from management, was “sort of amping it up, 

sort of raising the intimidation factor. That got my eyebrows 

raised.” Spix was also concerned about what Beck did not say in 

the letter, such as whether or not Rodriguez’s credit report 

showed delinquencies. Spix testified the request to identify the 

source of Rodriguez’s cash was not reasonable. But he had no 

idea whether, if Rodriguez was going to get a loan, it would affect 

her monthly payments. He thought she had the cash. He stated 

Beck’s request was unreasonable because “[i]t’s outside the 

statute. It’s not related to a prior tenancy.” 

To address the reasonableness of concluding the 

Underlying Action was legally tenable, we turn to the law upon 

which the Attorney Defendants rely. In arguing plaintiffs 

interfered with Banuelos’s contract to sell her mobilehome to 

Rodriguez, the Attorney Defendants cite the current version of 

Civil Code section 798.74, subdivisions (a) and (c), which was 

added in 2015 and amended in 2019.14 However, the Underlying 

14 The current version of Civil Code section 798.74, 

subdivisions (a) to (d) reads in relevant part: “(a) The 

management may require the right of prior approval of a 

prospective purchaser of a mobilehome that will remain in the 

park. [¶] (b) [¶] (1) A selling homeowner or their agent shall 

give notice of a sale of a mobilehome that will remain in the park 

to management before the close of the sale. [¶] (2) Management 

shall, within 15 days, provide the seller and the prospective 

purchaser both of the following, in writing, upon receiving the 

notice required in paragraph (1): [¶] (A) The standards that 

management customarily utilizes to approve a tenancy 

application, including the minimum reported credit score from a 

consumer credit reporting agency that management requires for 

approval. [¶] (B) A list of all documentation that management 
18

Action was filed in 2010, so the reasonableness of Attorney 

Defendants’ actions must be viewed with reference to the 2010 

version of Civil Code section 798.74.15

As it read in 2010, Civil Code section 798.74, subdivision 

(a) provided, “[t]he management may require the right of prior 

approval of a purchaser of a mobilehome that will remain in the 

will require to determine if the prospective purchase will qualify 

for tenancy in the park. [¶] (c) Management shall not withhold 

approval from a prospective purchaser of a mobilehome unless 

any of the following apply: [¶] (1) Management reasonably 

determines that, based upon the purchaser’s prior tenancies, they 

will not comply with the rules and regulations of the park. [¶]

(2) The purchaser does not have the financial ability to pay the 

rent, estimated utilities, and other charges of the park. [¶]

(3) The purchaser has committed fraud, deceit, or concealment of 

material facts during the application process. [¶] (d) In 

determining whether the prospective purchaser has the financial 

ability to pay the rent and charges of the park pursuant to 

paragraph (2) of subdivision (c), the management may require the 

prospective purchaser to document the amount and source of 

their gross monthly income or means of financial support. 

However, management shall not require the prospective 

purchaser to submit any of the following: [¶] (1) Documentation 

beyond that disclosed pursuant to subparagraph (B) of paragraph 

(2) of subdivision (b). [¶] (2) Copies of any personal income tax 

returns.”

15 Therefore, the Attorney Defendants’ argument there is 

no evidence Rodriguez was disapproved because she would not 

comply with the rules and regulations of the park or because she 

had committed fraud, deceit, or concealment of material facts, is 

irrelevant and based on an incorrect statement of the law as it 

existed in 2010. 
19

park and that the selling homeowner or his or her agent give 

notice of the sale to the management before the close of the sale. 

Approval cannot be withheld if the purchaser has the financial 

ability to pay the rent and charges of the park unless the 

management reasonably determines that, based on the

purchaser’s prior tenancies, he or she will not comply with the 

rules and regulations of the park. In determining whether the 

purchaser has the financial ability to pay the rent and charges of 

the park, the management shall not require the purchaser to 

submit copies of any personal income tax returns in order to 

obtain approval for residency in the park. However, management 

may require the purchaser to document the amount and source of 

his or her gross monthly income or means of financial support.” 

(Civ. Code, former § 798.74, subd. (a), added by Stats. 1990, 

ch. 645, § 1, pp. 3131–3132, italics added.)

For context, we turn now to the Mobilehome Residency Law 

(MRL) (Civ. Code, § 798 et seq.). Mobilehome evictions differ

significantly from conventional residential evictions. The MRL 

regulates relations between the owners and residents of 

mobilehome parks. (SC Manufactured Homes, Inc. v. Canyon 

View Estates, Inc. (2007) 148 Cal.App.4th 663, 674.) The MRL 

also regulates the sales and transfers of mobilehomes in the park, 

providing specified protections for management, selling 

homeowners, purchasers, and occupants. (Ibid.; see Civ. Code,

§ 798.70 et seq.) 

When enacting the MRL, the Legislature expressly found, 

“ ‘because of the high cost of moving mobilehomes, the potential 

for damage resulting therefrom, the requirements relating to the 

installation of mobilehomes, and the cost of landscaping or lot 

preparation, it is necessary that the owners of mobilehomes 
20

occupied within mobilehome parks be provided with the unique 

protection from actual or constructive eviction afforded by the 

provisions of this chapter.’ ” (Rich v. Schwab (1998) 

63 Cal.App.4th 803, 813; see Civ. Code, § 798.55, subd. (a).) The 

MRL “provide[s] mobilehome owners unique protection by 

requiring they be given greater notice of rent increases and other 

changes in the terms of their tenancy and by limiting the 

circumstances under which they may be evicted.” (Ibid.; see Civ. 

Code, §§ 798.30, 798.55.)

The resident owner is a “ ‘[h]omeowner,’ ” as defined in 

Civil Code section 798.9, who has a “ ‘[t]enancy,’ ” as defined in 

Civil Code section 798.12. However, a nonowner resident of a 

mobilehome does not enter into a tenancy agreement with park 

management, so he or she is not a homeowner but instead a 

“ ‘[r]esident,’ ” as defined in Civil Code section 798.11. 

As a result of the difficulties mobilehome parks may 

experience evicting a homeowner or resident, the law allows 

mobilehome park managers to require potential homeowners and 

residents to strictly comply with financial and other 

requirements prior to being accepted as a tenant. This was the 

precise issue with the Beck Letter. Former section 798.74 

permits inquiry into gross monthly income or means of financial 

support. There was nothing overreaching about the Beck Letter, 

which requested a schedule of real estate owned, mortgage 

statements, income and expense detail, and verification of funds 

to complete the $55,000 purchase. The trial court determines all 

these items constitute documentation as to “the amount and 

source of his or her gross monthly income or means of financial 

support.” (Civ. Code, former § 798.74, subd. (a).) No reasonable 
21

attorney would have imputed nefarious meaning to the Beck 

Letter. 

In addition to lacking probable cause to initiate the 

Underlying Action, the Attorney Defendants also lacked probable 

cause to maintain it. The Attorney Defendants have not 

addressed the timeline of events in the Underlying Action, but 

the trial court has gleaned the following from the record on 

appeal. 

The Attorney Defendants were on notice the Underlying 

Action lacked merit as early as July 29, 2010, when plaintiffs 

served their opposition to Kevin’s motion for preliminary 

injunction. Banuelos sold her mobilehome in February 2011. 

Two months later, on April 4, 2011, Banuelos filed her third 

amended complaint. On July 26, 2011, the Attorney Defendants 

sent an offer to compromise under Code of Civil Procedure section 

998 in the Underlying Action offering to have judgment entered 

for Banuelos in the sum of zero, with “each party to bear its own 

costs and attorney’s fees.” Plaintiffs filed their motion for 

summary judgment in December 2011, and it was granted on 

April 10, 2012, with the trial court finding the requests for 

further information in the Beck Letter were “objectively 

reasonable as shown by undisputed evidence.” 

Spix testified he could not dismiss the case at the time the 

offer to compromise was served without subjecting Banuelos to 

attorney fees. The trial court infers from this statement 

Banuelos was in too deep at that point, and yet the litigation 

continued. Knowing the MRL provides for attorney fees to the 

prevailing party (Civ. Code, § 798.85; see SC Manufactured 

Homes, Inc. v. Canyon View Estates, Inc., supra, 148 Cal.App.4th

at p. 673) should have motivated the Attorney Defendants to 
22

proceed with added caution at all stages of the litigation. The 

court concludes a reasonable attorney would have known there 

was little to zero chance of prevailing in the litigation after losing 

on summary judgment, yet the Attorney Defendants pursued the 

case through an unsuccessful appeal.16 No reasonable attorney 

would have continued to prosecute a lawsuit with potential 

damages of only $4,000 (the difference between Rodriguez’s offer 

of $55,000 and the subsequent sales price of $51,000) and 

exposure to an award of attorney fees.

We conclude there was no probable cause to initiate or 

maintain the Underlying Action. The trial court did not err in its 

determination.

16 The trial court does not suggest the grant of summary 

judgment alone supports a finding no probable cause existed. 

(Compare Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th

728, 747 [defense summary judgment on underlying claim does 

not establish lack of probable cause as a matter of law]; with 

Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776 

[“California courts have long embraced the so-called interim 

adverse judgment rule, under which ‘a trial court judgment or 

verdict in favor of the plaintiff or prosecutor in the underlying 

case, unless obtained by means of fraud or perjury, establishes 

probable cause to bring the underlying action, even though the 

judgment or verdict is overturned on appeal or by later ruling of 

the trial court’ ”].)
23

II. Substantial Evidence Supports the Jury’s Finding of Malice

and Award of Compensatory Damages

A. The Attorney Defendants Waived Their Argument

There Is No Substantial Evidence to Support the

Jury’s Malice Finding

We review the jury’s finding of malice for substantial 

evidence. (Sheldon Appel, supra, 47 Cal.3d at p. 875 [malice is 

always a question of fact for the jury]; see George F. Hillenbrand, 

Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th

784, 816 [our task on review of jury verdict for malicious 

prosecution is to review entire record to determine whether 

substantial evidence supports jury’s findings].) 

When a finding of fact is attacked on the ground there is no 

substantial evidence to sustain it, the power of an appellate court 

begins and ends with the determination as to whether there is 

any substantial evidence, contradicted or uncontradicted, which 

will support it. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 

875, 881.) It is well established a reviewing court starts with the 

presumption the record contains evidence to sustain every 

finding of fact. (Ibid.)

On appeal challenging sufficiency of the evidence, 

appellant’s opening brief must set forth all the material evidence 

on point, not merely state facts favorable to appellant. (See 

Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) The 

burden to provide a fair summary of the evidence grows with the 

complexity of the record. (Myers v. Trendwest Resorts, Inc. (2009) 

178 Cal.App.4th 735, 739.) When appellant’s opening brief states 

only favorable facts, ignoring evidence favorable to respondent, 

the appellate court may treat the substantial evidence issues as 

waived and presume the record contains evidence to sustain 
24

every finding of fact. (See Huong Que, Inc. v. Luu (2007) 

150 Cal.App.4th 400, 409–410 [appellant cannot shift burden of 

presenting all material evidence to respondent, nor is appellate 

court required to undertake independent examination of record 

when appellant has shirked responsibility in this respect].)

Moreover, an appellant’s opening brief must provide a 

summary of the significant facts limited to matters in the record. 

(Cal. Rules of Court, rule 8.204(a)(2)(C).) Every brief must 

support any reference to a matter in the record by a citation to 

the volume and page number of the record where the matter 

appears. (Cal. Rules of Court, rule 8.204(a)(1)(C).) The appellate 

court is not required to search the record on its own seeking 

error. If a party fails to support an argument with the necessary 

citations to the record, the argument will be deemed waived. 

(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; see Estate of 

Palmer (1956) 145 Cal.App.2d 428, 431 [attack on evidence 

without fair statement of evidence entitled to no consideration 

when apparent substantial amount of evidence was received on 

respondent’s behalf].)

Here, the reporter’s transcript spans over 5300 pages and 

the appendices exceed 2800 pages, including nearly 1500 pages of 

court-filed documents omitted in the Attorney Defendants’ 

appendix. The missing documents supplied by plaintiffs in their 

appendix contain legally significant facts necessary to our

determination of the issues raised on appeal. In addition to 

omitting from the record on appeal substantial portions of the 

trial court record, in their opening brief, the Attorney Defendants 

consistently fail to include record cites for several assertions of 

fact in their statement of facts and never once include a reporter’s 

transcript record cite in their argument sections. This pattern is 
25

repeated throughout their reply brief where not a single citation 

to the record on appeal can be located in its 29 pages. On a 

lengthy (over 8000 pages) and complex (11 years of litigation 

history) record such as that before us, the failure is particularly 

acute.

The Attorney Defendants failed to provide an adequate 

record for our substantial evidence review and further failed to 

include adequate record cites for their assertion the evidence was 

insufficient to support the jury’s finding of malice. Consequently, 

the claim is waived, and we presume the record contains evidence 

to sustain the jury’s finding of malice. (See Le Mere v. Los 

Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 248.)

B. Substantial Evidence Supports the Jury’s Award of

$171,465.09 in Compensatory Damages

We review the jury’s determination of compensatory 

damages for substantial evidence. (Rufo v. Simpson (2001) 

86 Cal.App.4th 573, 614.)

The Attorney Defendants concede damages potentially 

recoverable in a malicious prosecution action include out of 

pocket expenditures such as attorney fees and other legal fees. 

(See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59 

[measure of compensatory damages for malicious prosecution of a 

civil action includes attorney fees and court costs for defending 

the prior action and compensation for emotional distress, mental 

suffering and impairment to reputation proximately caused by 

the initiation and prosecution of the action].)

Here, the parties stipulated the total amount of attorney 

fees and costs plaintiffs incurred in the Underlying Action was 

$171,465.09. Nevertheless, the Attorney Defendants contend 

there is no evidence LAI or Starflinger (as opposed to dismissed 
26

plaintiffs 218 and R22) paid or incurred any liability for attorney 

fees and costs generated in defense of the Underlying Action. 

They contend R22 paid attorney fees for LAI and only the entity 

that has been damaged has standing to bring a claim for such an 

expense. Further, even if LAI or Starflinger was, at one time, 

obligated to pay attorney fees and costs in the Underlying Action, 

no such obligation existed at the time of trial, because, according 

to the Attorney Defendants, under Civil Code section 1474, 

“[p]erformance of an obligation, by one of several persons who are 

jointly liable under it, extinguishes the liability of all.” 

The Attorney Defendants are wrong. Civil Code section 

1474 applies to codefendants who are jointly liable for a 

judgment. (See Salter v. Lombardi (1931) 116 Cal.App. 602, 604 

[when a codefendant pays the judgment, it is paid for all 

purposes].) To “ ‘incur’ ” a fee is to become liable for it. (Trope v. 

Katz (1995) 11 Cal.4th 274, 280.) It is not necessary for a party 

to actually pay for fees incurred. (See Lolley v. Campbell (2002) 

28 Cal.4th 367, 371 [rejecting contention attorney fees “incurred” 

means only fees litigant actually pays or becomes liable to pay 

from his or her own assets].)

Starflinger testified all the attorney fees in the Underlying 

Action were paid through LAI but were actually funded from 

Thomas Heinemann, the owner of LAI. He said R22 sent the 

checks to the lawyers, but 218, which was owned by LAI, 

reimbursed R22. Starflinger testified he was personally 

responsible to pay legal fees, but he was reimbursed by 218. 

The Attorney Defendants cannot escape from paying 

damages because Heinemann, as benefactor, duly paid an 

attorney fees bill presented to his company. There is no evidence 

Heinemann considered his payments to the lawyers who 
27

defended plaintiffs in the Underlying Action a satisfaction of 

judgment in this case. The fees were paid, and the jury affixed 

liability for them squarely on the shoulders of the Attorney 

Defendants, not Heinemann, plaintiffs, 218 or R22. The Attorney 

Defendants’ argument defies logic and reason, and attempts to 

shift their liability to an innocent party.

Finally, the trial court denied the Attorney Defendants’ 

motion for new trial which argued, inter alia, compensatory 

damages were excessive. The appellate court ordinarily defers to 

the trial court’s denial of a motion for new trial based on 

excessive damages, because of the trial judge’s greater familiarity 

with the case. (Rufo v. Simpson, supra, 86 Cal.App4th at p. 614.) 

The appellate court will interfere with the jury’s determination 

only when the award is so disproportionate to the injuries 

suffered that it shocks the conscience and virtually compels the 

conclusion the award is attributable to passion or prejudice. (Id. 

at p. 615.) No such situation is present here.

III. The Jury’s Award of Punitive Damages Was Not Excessive

as a Matter of Law 

The parties stipulated Spix had a net worth of $1,000,000 

and Martin had a net worth of $125,000. The jury awarded 

punitive damages of $300,000 against Spix payable to LAI and 

$15,000 against Spix payable to Starflinger. The jury awarded 

punitive damages of $25,000 against Martin payable to LAI and 

$5,000 against Martin payable to Starflinger. 

A reviewing court will reverse an award of punitive 

damages only when the award as a matter of law appears 

excessive, or where the recovery is so grossly disproportionate as 

to raise a presumption that it is the result of passion or prejudice. 

(Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928 (Neal).) 
28

We review the jury’s determination of punitive damages for 

substantial evidence. (Id. at p. 922; see George F. Hillenbrand,

Inc. v. Insurance Co. of North America, supra, 104 Cal.App.4th at 

p. 816.)

Factors to consider in determining whether a punitive 

damages award is excessive as a matter of law or the result of 

passion or prejudice include (1) the degree of reprehensibility of 

defendant’s misconduct; (2) the relationship between 

compensatory and punitive damages; and (3) defendant’s 

financial condition. (Neal, supra, 21 Cal.3d at p. 928.) 

The Attorney Defendants address only the third factor in 

their opening brief. They contend the jury’s award of punitive 

damages against each attorney was excessive as a matter of law, 

because the “normal limit” of an award of punitive damages is ten 

percent of the person’s net worth. The Attorney Defendants rely 

on Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498 and 

Michelson v. Hamada (1994) 29 Cal.App.4th 1566. 

The jury instruction on punitive damages correctly 

instructed, “[t]here is no fixed formula for determining the 

amount of punitive damages.” Both cases relied on by the 

Attorney Defendants are factually distinguishable, and, 

consistent with the jury instruction, neither case stands for a 

bright line rule that punitive damages in excess of 10 percent of 

defendant’s net worth are excessive as a matter of law. There is 

no such rule. 

In Storage Services v. Oosterbaan, supra, 214 Cal.App.3d at 

page 515, a punitive damages award of $75,000 representing 

33 percent of defendant’s net worth, which amount also exceeded 

his gross income for the year of trial, was disproportionate. 

Similarly, in Michelson v. Hamada, supra, 29 Cal.App.4th at 
29

page 1596 a punitive damages award of $1,250,000 in light of 

defendant’s net worth of $4,394,500 was excessive, as it 

represented 28 percent of his net worth.

But the issue does not turn on whether the award exceeds 

some specified percentage of the defendant’s net worth. There is 

no legal requirement that punitive damages must be measured 

against a defendant’s net worth. (Zaxis Wireless 

Communications, Inc. v. Motor Sound Corp. (2001) 

89 Cal.App.4th 577, 582–583.) The key determination is whether 

the amount of damages exceeds the level necessary to properly 

punish and deter. (Cummings Medical Corp. v. Occupational 

Medical Corp. (1992) 10 Cal.App.4th 1291, 1299.) The function of 

deterrence will not be served if a defendant’s wealth allows him 

or her to absorb the award with little or no discomfort. (Neal,

supra, 21 Cal.3d at p. 928.) 

We conclude the award of $315,000 total punitive damages 

against Spix and $30,000 total punitive damages against Martin 

do not exceed a level necessary to properly punish and deter. 

The remaining two Neal factors are not adequately 

addressed by the Attorney Defendants. In their reply brief, they 

contend the second factor—the relationship between 

compensatory and punitive damages—does not apply in this case. 

As to the first factor—the degree of reprehensibility of the 

defendants’ misconduct—the Attorney Defendants rebuff 

plaintiffs’ reliance on Rufo v. Simpson, supra, 86 Cal.App.4th at 

page 573 by arguing the murder of two individuals has a far 

higher level of reprehensibility than failure to evaluate the 

merits of a lawsuit accurately. 

The Attorney Defendants miss the mark. When analyzing 

the degree of reprehensibility, the appellate court must examine 
30

“the particular nature of the defendant’s acts in light of the whole 

record.” (Neal, supra, 21 Cal.3d at p. 928, italics added.) Yet the 

Attorney Defendants have failed to present “the whole record” to 

this court, which, when coupled with their failure to show 

insufficiency of the evidence on malice, renders the issue waived

on substantial evidence review. (See Huong Que, Inc., supra,

150 Cal.App.4th at pp. 409–410.)

The Attorney Defendants have failed to establish the 

punitive damages award was excessive as a matter of law. 

DISPOSITION

The judgment is affirmed. LA Investments, LLC, and Peter 

Starflinger are awarded their costs on appeal.

NOT TO BE PUBLISHED.

KNILL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Superior Court of Orange County, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
Filed 3/4/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LA INVESTMENTS, LLC, et al.,

Plaintiffs and Respondents,

v.

RICHARD SPIX et al.,

Defendants and Appellants.

 B304734

 (Los Angeles County

 Super. Ct. No. BC544662)

 ORDER MODIFYING OPINION

 AND CERTIFYING FOR PARTIAL

 PUBLICATION

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 9, 

2022 be modified as follows:

1. On page 20, fifth sentence of the last paragraph, the 

word “determines” is changed to “determined” so it reads:

The trial court determined all these items constitute 

documentation as to “the amount and source of his or her gross 

monthly income or means of financial support.”

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion 

is certified for publication with the exception of part III of the Discussion.
2

2. On page 21, last sentence of the first full paragraph, the 

words “the trial court has” are changed to “we have” so it reads:

The Attorney Defendants have not addressed the timeline 

of events in the Underlying Action, but we have gleaned the 

following from the record on appeal.

3. On page 21, second sentence of the last paragraph, the 

words “The trial court infers” are changed to “We infer” so it 

reads:

We infer from this statement Banuelos was in too deep at 

that point, and yet the litigation continued.

4. On page 22, first full sentence of the first paragraph, the 

words “The court concludes” are changed to “We conclude” so it 

reads:

We conclude a reasonable attorney would have known 

there was little to zero chance of prevailing in the litigation after 

losing on summary judgment, yet the Attorney Defendants 

pursued the case through an unsuccessful appeal.

5. On page 22, footnote 16, first sentence, the words “The 

trial court does not” are changed to “we do not” so it reads:

We do not suggest the grant of summary judgment alone 

supports a finding no probable cause existed.

There is no change in the judgment.
3

The opinion was not certified for publication in the Official 

Reports. For good cause it now appears that the opinion should 

be partially published in the Official Reports and as modified, it 

is so ordered.

____________________________________________________________

KNILL, J.* LAVIN, Acting P. J. EGERTON, J.

* Judge of the Superior Court of Orange County, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.