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 M ar ie Scheper , Judge

. Affirmed

. Lewis Brisbois Bi sgaard & 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 app ellants 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
Inv estments, LLC, a California li mited 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

n o 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 2009 1 the Attorney Defendants, on behalf of Banuelos’s son, Kevin Banuelos (Kevin) , filed an action again st 218 Properties

, LLC

, (218) involving a disputed determination
that Kevin was not financially elig ible 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 pr ovide 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 $55,00 0.
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 show ed 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 Lett er 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 $5 5,000 purchase of Banuelos’s m obilehome ; 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 n otice to

p rospective t enant(s) of Park Gra nada advising the mobilehome

2 The Park is also referred to as Park Gran ada Mobile Home Park.4 p ark 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 den ied (City of Carson Letter).
Banuelos declar ed 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 o ut of the transaction, forcing her to cancel the escrow. She also stated there was no application to convert t o condominiums pending for
the Park. On July 20, 2010, f ive days after Banuelos filed her declaration in the Kevin Action, t he Attorney Defenda nts, on behalf of Banuelos, fi led a n 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 2 18 and
LA I 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 P ark, retalia ted 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 P a rk in withholding approval of buyers. Banuelos attached to the complaint the same three
exhibit s she a ttached to her declaration filed in the Kevin Action. Meanwhile, o n July 2 9 , 2010, 218 filed its opposition to the
motion for preliminary injunction in the Kevin Action , along with5 the declarations of Beck and Starflinger. Starflinger explain ed while reviewing Rodriguez’s application for residency, he wanted to approve it because he “did not want to give Ms. Banuelos any

ex cuse for her to join her son i n a multiplicity of lawsuits.” He
asked Be ck to review the application as it appeared Rodriguez did not meet the financial qualifications. According to Starflinger

, w hen Rodrigue z did not respond to the request to provide ad ditional financial information

, the P ark d ecline d 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.
Th e 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 Rod riguez stated her gross monthl y salary was $4,000, with rental income of $2,800. As a result, Beck sent a letter to P ark 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 bac k from Madera or Rodriguez, so on Ju l y 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, presum ably the Attorney Defendants would rely on the trial court’s granting of the preliminary injunction as6 On January 10, 2011, a n ew buyer made an offer to

purc hase Banuelos’s mobilehome for $51,000, which Banuelos accepted. T he new buyer’s application for residency was approved , and the sale closed February 28, 2011.
F ollowing several demurrers and motions to strike, it

appears t he operative third amended com plaint 4 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 a gent/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 fil ed motion s for summary judgmen t. 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. o pn.] ( Banuelos I )

, t he trial court found: “ (1) a s to the cause of action
for v iolation of Civil Code section 798. 7 4 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 comp laints 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 f or further information
and tho se 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 diffe rent 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 requi red 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 a t p. 9.) 6

5 It is unclear from the record on appeal where the interference with economic advantage and intentional infliction of emotion al distress cause s of a ction arose, given R22’s and Starflinger’s motions for summary judgment do not address th em

.

6 This Division also affirmed on procedural grounds. Banuelos I explained, Banuelos’s “ arguments improperly rely on evidence to which objections were sustaine d. However,8 II. The I nstant A c tion

A. C omplaint

S ix 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 m alicious prosecution and defam ation.

“ 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
A ction ] , no reasonable attorne y would have thought the claim s 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, intentional ly, 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 y ears earlier, before
Plaintiff s 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 an d that [LAI] was not liable fo r the acts of 218

. . . . Therefore, [Banuelos] has failed to show that summary judgment was improper.” ( Banuelos I

, supra , B241645
at p. 1 2 , fn. omitted .)9 third party buyer was turned down before it was sold to an alleged “ proxy ” of Plaintiff Starflinger. ’ Furt her, 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 o f others, that Starflinger ha d 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 p rivileged because
it was not m ade in the course of a judicial proceeding. ” ( LA
Investment v. Banuelos (June 30, 2016, B260151) [nonpub. opn.] at p. 6 ( Banuelos II ).)

B. Special M otion to S trike and Banuelos II

T he Attorney Defendants filed a special motio n 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 U nderlying
L awsuit established probable cause as a matter of law. The motion also argued L AI 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 At torney Defendants acted with

m alice 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 pa rt and remanded with direction s 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 ac tion for malicious prosecution

. 7

C. Trial

W ith 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 verd ict
and denied the Attorney D e fendants’ motion for nonsuit. The

court found as a matter of law the Attorney D efendants had no probable cause to initiate the Underlying A ction

. 8 T he court

7 Our decision in Banuelos II cannot form the basis for a finding o f 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 no t contain the Attorney Defenda nts ’ 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 of11 stated, “I think this case was utterly lacking in probable cause
fr om its beginning to its end an d 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 o f 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 reaso n to commence or continue the underlying action was to harass the P ark 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 i ts 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 th e Attorney Defendants engaged in the conduct with malice, oppression

, or fraud.

the court’s comments, i t a ppears the court “read and considered ” plaintiff s’ 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 i n 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 T he 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 ad ded interest of $85,581.18 to the compensatory damage s 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 fr om 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 timel y appe a l ed

. 10

CONTENTIONS

The Attorney Defendants contend (1) there was probable cause to prosecut e the Underlying Action; (2) the evidence was insufficient to support the jury’s finding of malice; (3) the compensatory damage s award must be vacated and set aside
because LAI and Starflinger did not pay anything for attorney

10 We asked counsel to brief whet her the March 4, 2020 notice o f 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 augmen t the record on appeal filed J anuary 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 o f intention to move for new
tr ial 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 8.10 4( a )(1)(A)

- (B).)13 fees and costs; and (4) the p unitive 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 defenda nt 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 som e of the claims in the prior action lacked probable cause. ( Crowley v. Katleman (1994) 8 Cal.4 th 666, 676.) There is no dispute the Underlying Action was commenced by the Attorney Defendants and plaintiffs obtained a favora ble termination in the Underly ing 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

wa s probable cause requires a se nsitive 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.
Str oud (2004) 32 Cal.4 th 958, 970 .) The reasonableness of14 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 tenabl e

— an objective inquiry

— is a le gal issue we review de novo. ( Arcaro v. Silva & Silva Enterprises Corp. (1999)
77 Cal.App.4 th 152, 156; see Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4 th 55, 63 [where no disputed questions of fact relev ant to probable cause issue, m atter 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 withou t 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 r elief 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 t he facts known to him.” ( Sang ster v. Paetkau (1998) 68 Cal.App.4 th 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 app rove a sale. They also assert ed the Beck declaration from the Kevin Action
evidence d Rodriguez’s ability to pay about $300 per month in
rent. I n their opening brief, Attorney Defendants fail to differentiate between what they knew upon initiation of the15 Underlying Action and what the y 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.” Banu elos then told her attorneys all the facts as she knew them. Sp ix testified at the time the Rodriguez sale fell through,
he was aware the mobilehome residency laws permit ted inquiry concerning the ability of a prospective te nant to pay rent. He agreed t he law state d approval of a prospective tenant cannot be withheld if financial ability of the prospective tenant is established. However, he believed the Beck L etter was intrusive and requested more information than was permi tted under the statute. Spix also testified the N otice sent to Rodriguez was a lie,
because the condominium conversion had been denied for more
than a month before the N otice was given. Spix testified one of the bases for his allegation the sale fell thr ough was due to the
Park’s unr easonable conduct in not approving the sale to Rodriguez. 12

11 In their re ply 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 Adm inistration (1994) 30 Cal.App.4 th 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 info rmation was a pretext for denying Ms. Rodriguez’s application to rent” citing page 2606 of the r eporter’s t ranscript. 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 Banuel os from the Park.
The Attorne y 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
Defend ants had the exhibits to the c omplaint

— 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 prospec t of conversion favorably

. Th erefore, 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 o f 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 Actio n. The
Beck Letter raised thr ee 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 n ot supply us with their reques t(s) for judicial notice.17 Spix testified the Beck Letter, rather than a request or phone call directly from management, wa s “sort of amping it up, sort of raising the intimidation factor. That got my eyebrows raised.” Spix was also con cerned 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 wa s going to get a loan, it woul d 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 w as lega lly 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, t he Attorney Defendants cite the current version of
Civil Code section 798.74, subdivis ions (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 mobileh ome that will remain in the

pa rk. [¶] (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, provid e the seller and the prospecti ve 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 management18 Action was filed in 2010, so the reasonableness of Attorney
Defendants’ actions must be viewed with reference to the 2010
version of Civi l Code section 798.74. 15
As it read in 2010, Civil Code section 798.74, subdivision (a) provide d , “[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) Managem ent shall not withhold

approva l 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 pu rchaser 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 proc ess. [¶] (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, o r concealment of material facts, is irrelevant and based on an incorrect state ment 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

s ubmit copies of any personal i ncome 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 d iffer significantly from conventional residential evictions. The MR L regulates relations between the owners and residents of mobilehome parks. ( SC Manufactured Homes, Inc. v. Canyon View Estates, Inc. (2007) 148 Cal.App.4 th 663, 674.) The MRL also regulates the sales and transfers of mobile homes in the park, providing s pecified 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 mobi lehomes, the potential
for dam age 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 mobilehomes20 occupied within mobilehome parks be provided with the unique protection fr om actual or constructive eviction afforded by the provisions of this chapter. ’ ” ( Rich v. Schwab (1998)
63 Cal.App.4 th 803, 813 ; see Civ. Code, § 798.55, subd. (a).) The MRL “provide[s] mobilehome owners unique protection b y requiring they be given grea ter 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 ] omeowne r, ’ ” 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 bu t 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
resident s to strictly comply with fina ncial 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 wa s not hing overreaching about the Be ck 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 doc umentation as to “the amount a nd source of his or her gross monthly income or means of financial support.” (Civ. Code, former § 798.74, subd. (a).) N o reasonable21 attorney would have imputed nefarious meaning to the Beck
Letter

. In addition to lacking pr obable cause to initiate the
U nderlying 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 fr om 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 Ap ril 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 enter ed
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 i n December 2011, and it was granted on April 10, 2012, with the trial court finding the requests for
furth er information in the Beck Let ter w ere “objectively
reasonable as shown by undisputed evidence .” Spix testified he could not dismiss the case at th e time the offer to compromise was served without subjecting Banuelos to attorney fees

. The trial court i nfers from this statement
Banu elos 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.

, supr a , 148 Cal.App.4 th at p. 673) should have motivated the Attorney Defendants to22 proceed with added caution at all stages of the litigation

. The

court conclude s a reasonable attorney would have known there was little to zero chance of prevailing in the liti gation 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 Rodrigu ez’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 For mulas, Inc. v. LaMarche (2003) 31 Cal.4 th 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. 5 th 767, 776 [“Calif ornia courts have long embrace d 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 c ause to bring the underlying a ction, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court’ ”].)23 II. Subst antial Evidence Supports the J ur y’s Finding of Malice and Award of Compensatory Damages

A. The Attorney Defendants Waived Their Argument
There I s No Substantial Evidence to Support the Jury’s Malice Finding
We review the jury’s finding of malice for s ubstantial
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.4 th 784, 816 [our task on review of jury verdict for m alicious prosecution is to rev iew 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 determinati on 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 contain s 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 appellan t. (See
Foreman & Clark Corp. v. Fallon

, supra , 3 Cal .3d at p. 881.) The
burden to provide a fair summary of t h e evidence grows with the complexity of the record

. ( Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4 th 735, 739.) When appellant’s open ing brief states only favorabl e facts, ignoring evidence favorable to respondent, the appellate court may treat the substantial evidence issues as waived and presume the record contains evidence to sustain24 every finding of fact. (See Huong Que, Inc. v. Lu u (2007)
150 Cal.App.4 th 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 o pening brief must provide a summary of the significant facts limited to matters in the record. (Cal. Rules of C our t, rule 8.204(a)(2)(C).) E very 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 C our t, 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
cit ations to the record, the argu ment will be deemed waived. ( Nwosu v. Uba (2004) 122 Cal.App.4 th 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 apparen t substantial amount of eviden ce 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’

ap pendix . The missing documents supplied by plaintiffs in their appendix contain legally significant facts necessary to our determination of the issues raised on appeal. I n addition to omitting from the record on appeal substantial portions of the
trial co urt record, in their opening b rief, the Attorney Defendants
consistent ly fail to include record cite s for several assertions of
fact in their statement of facts and never once include a reporter’s transcript record cit e in the ir argument section s

. This pa ttern is25 repeated throughout t heir 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 pa rticularly

acute

. The Attorn ey 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 mali ce . Consequently,
the claim i s 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.A p p.5 th 237, 248 .)

B

. Substantial Evidence Supports the Jury’s Awar d of $ 171,465.09 in Compensat ory Damages
We review the jury’s determination of compensatory damages for substantial evidence. ( Rufo v. Simpson (2001)
86 Cal.App.4 th 573, 614.)
The Attorney Defendants concede damages potentially
recoverable in a malici ous prosecution action include out of

po cket expenditures such as attorney fees and other legal fees. (See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 5 9 [ measure of compensatory damages for malicious prosecution of a
civil action includes atto rney 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 am ount of attorney
fees and cost s plaintiffs incurred in the Underlying Action was $171,465.09. Nevertheless, the Attorney Defendants contend
there is no evidence LAI or S t arflinger (as opposed to dismissed26 plaintiffs 218 and R22) paid or incurred any liabi lity for attorney
fees and cos ts 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 w as, 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 se veral persons who are jointly liable under it, extinguishes the liability of all.”
The A ttorney 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.4 th 274, 280.) It is not necessary for a party

to actually pay for fees incurred. (See Lolley v. C ampbell (2002)
28 Cal.4 th 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 r eimbursed by 218.
The Attorn ey Defendants cannot escape from paying damages because Hei ne mann, as benefactor, duly paid an attorney fees bill presented to his company. There is no evidence Heinemann considered his payments to the lawyers who27 defended pl aintiffs in the Underlying Act ion 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 Hei ne mann , plaintiffs , 218 or R22

. The Attorney
Defendants’ a rgument defies logic and reaso n, and attempts to shift their liability to an innocent party

. Finally, t he trial court denied the Attorney Defendants’ motion for new trial which argued , inter alia, compensatory damages were excessive. T he appellate court o rdinarily 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

, supr a , 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 situa tion is prese nt 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 Spi x 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 th e award as a matter of law app ears 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 jur y’s determination of punitive damages for substantial evidence. ( I d. at p. 922; see George F. Hillenbrand, Inc. v. Insurance Co. of North America

, supra , 104 Cal.App.4 th at p. 816.) Factors to consider in determining whether a punitive damages award is ex cessive 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 , 2 1 Cal.3d at p. 928.)
The At torney 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 punit ive damages is ten percent of the person’s net worth

. The Attorney Defendants rely

on Storage Services v. Ooster baan (1989) 214 Cal.App.3d 498 and
Michelson v. Hamada (1994) 29 Cal.App.4 th 1566. The jury instruction on punitive damages correctly
instru cted, “[t]here is no fixed for mula 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 stand s for a bright line rule that p unitive damages in excess of 1 0 percent of
defendant’s net wo rth are excessive as a matter of law. There is
no such rule.
In Storage Services v. Ooster baan

, supra , 214 Cal.App.3d at page 515, a punitive damages award of $75,000 representing
33 percent o f 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.4 th at29 page 1596 a punitive damages award of $1,250,000 in light of
defendant’s net wort h of $4,394,500 was excessive, as it represented 28 percent of his net worth.
But t he 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 mea sured against a defendant’s ne t worth. ( Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001)
89 Cal.App.4 th 577, 582

– 583.) The key determination is whether the amount of damages exceeds the level necessary to properly punish and deter. ( Cummi ngs Medical Corp. v. Occupatio nal Medical Corp. (1992) 10 Cal.App.4 th 1291, 1299.) T he 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 facto r

— the relationship between compensatory and punitive damage s

— does not apply in this case.
As to the first factor

— the degree of reprehensibility of the
defendants’ mis conduct

— the Atto rney Defend ants rebuff plainti ffs’ reliance on Rufo v. Simpson

, supra , 86 Cal.App.4 th at

p age 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.
T he Attorn ey Defendants miss the mark. When analyzing the degree of reprehensibility, the appellate court must examine30 “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
Attorne y Defendants have failed to pr esent “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 .4 th at pp. 409

– 410.)
T he Atto rney Defendants have failed to establish the punitive damage s award was excessive as a matter of law.
D ISPOSITION The judgment is affirmed. L A Investments, LLC, and Peter Starflinger are awarded their costs on appeal.
NOT TO BE PUBLISHED

.

KNI LL , 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.,

Plaintiff s and Respondent s ,

v.

RICHARD SPIX et al.

,

Defendant s and Appellants

. B 304734 (Los Angeles County Super. Ct. No. BC 544662 )

ORDER MODIFYING OPINION AND CERTIFYING FOR PARTIAL PUBLICATION

[ NO CHANGE IN JUDGMENT ]

THE COURT:
It is ordered that the o pinion 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 De fendants 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” s o 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 c onclude 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, firs t 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.