Filed 7/31/13; pub. order 8/23/13 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUSSELL C. JAY et al.,

 Plaintiffs and Respondents,

v.

DOUGLAS MAHAFFEY et al.,

 Defendants and Appellants.

 G047325

 (Super. Ct. No. 30-2012-00550608)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Franz E. 

Miller, Judge. Affirmed.

Sandler, Lasry, Laube, Byer & Valdez, James G. Sandler and Jeffrey M. 

Byer for Defendants and Appellants Douglas Mahaffey and Susan Ghormley.

Julander, Brown & Bollard and Richard L. Brown for Defendants and 

Appellants Michael Lawrence and Victoria Lawrence.

Horvitz & Levy, Jeremy B. Rosen, Steven S. Fleischman; McDermott Will 

& Emery and Chris C. Scheithauer for Plaintiffs and Respondents.

* * *
2

This is an appeal from an order denying defense motions pursuant to Code 

of Civil Procedure section 425.16,1 the anti-SLAPP statute,2 in a malicious prosecution 

action. The underlying dispute relates to a long-term ground lease for property used as a 

mobilehome park in Anaheim. Defendants Michael and Victoria Lawrence (the 

Lawrences) owned the property. Defendants Douglas Mahaffey3 and Susan Ghormley 

(collectively the attorneys) previously represented the Lawrences. JR Enterprises (JR), 

the property‟s lessee under a long-term ground lease, was a limited partnership. In a 

dispute primarily between the Lawrences and JR, the Lawrences brought a number of 

JR‟s limited partners into the underlying case via Roe amendments to their pleading. The 

limited partners were dismissed by the Lawrences several months later, and 12 of the 

limited partners4 subsequently filed the instant malicious prosecution action. The 

Lawrences and the attorneys (collectively defendants) filed anti-SLAPP motions, which 

the trial court denied, concluding the limited partners had set forth a prima facie case 

sufficient to defeat the motions. We agree with the trial court that the limited partners 

 

1 Unless otherwise indicated, subsequent statutory references are to the Code of Civil 

Procedure.

2 “SLAPP is an acronym for „strategic lawsuit against public participation.‟” (Jarrow 

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

3 Mahaffey & Associates is named as a defendant in this action, but was the subject of an 

involuntary bankruptcy proceeding and was therefore not a party to this appeal. The 

parties, however, stipulated that Mahaffey & Associates would be bound by this court‟s 

ruling. 

4 The limited partners who are plaintiffs in the instant malicious prosecution suit are: 

Russell C. Jay, Trustee of Russell C. Jay Family Trust; Nettie Long, Trustee of Long 

Revocable Trust dated 5/4/89; Susan J. Spiezia, Trustee of the Spiezia Trust; Leland Jay; 

Hayden Long; Joan E. Jay, Trustee of Marital Portion of Melvin A. Jay & Joan E. Jay 

Living Trust; Eugene Long, Trustee of Long Revocable Trust dated 5/4/89; Leland Jay, 

Trustee of Residuary Portion of Melvin A. Jay & Joan E. Jay Living Trust dated 2/25/93; 

Jean Keleman, Trustee of Keleman Family Trust dated 12/23/85; Melvin Keleman, 

Trustee of Keleman Family Trust dated 12/23/85; Leanna Garrido; and Diane Rochelle. 
3

satisfied all three elements of a malicious prosecution case: favorable termination, lack of 

probable cause, and malice, as to each of the defendants. We therefore affirm.

I

FACTS

A. Background

At all times relevant, JR was a real estate and development company that 

owned and leased property in Orange and San Bernardino Counties. JR Capital Group, 

LLC (JR Capital) was JR‟s sole general partner. JR had many limited partners (more 

than 50) who were characterized by JR as passive investors. JR, as lessee, was the 

successor in interest to a long-term ground lease in Anaheim that is not due to expire for 

another 50 years. The property, since the 1960‟s, has been operated as a mobilehome 

park. 

At some point, the Lawrences became the property‟s owners as successors 

in interest to the original owner and lessor. Michael5 was apparently unhappy with the 

lease‟s terms, and expressed his desire to sell and redevelop the property, which was 

impossible because of the long-term lease. In 2007, Michael began to look for ways to 

end the lease. He offered JR‟s president, John Spiezia, a personal seven-figure payment 

if Spiezia would work with him to end the lease. He contacted one of the limited 

partners, Diane Rochelle, and through her attorney attempted to obtain contact 

information for the limited partners to organize them against Spiezia and JR. Michael 

also tried to persuade the City of Anaheim to “at least threaten condemnation to get the 

lessee to fall in line.” 

 

5 When necessary, we use the Lawrences‟ first names to avoid confusion. No disrespect 

is intended.
4

B. First Breach of Lease Action

In August 2008, the Lawrences filed their first breach of lease action 

against JR, alleging claims for quiet title and declaratory relief and seeking to terminate 

the lease. They were represented by Mahaffey and Mahaffey & Associates. JR filed a 

cross-complaint, alleging claims for breach of the lease6 and declaratory relief. During 

closing argument, Mahaffey stated, with respect to JR, that in a general partnership, 

“There are no shareholders. There are no directors. The limited partners make no 

decisions.” 

The trial was bifurcated, with the court deciding some issues and the jury 

others. The Lawrences prevailed on several claims, but JR prevailed on the others. In 

March 2011, an amended net judgment was entered in JR‟s favor for $129,766.50. The 

Lawrences appealed, but the trial court‟s decision was subsequently affirmed by this 

court. (Lawrence et al. v. JR Enterprises, L.P. (May 15, 2013, G044999) [nonpub. 

opn.].) 

While final judgment in this action was still pending, Mahaffey sent an 

e-mail to JR‟s counsel on December 8, 2010. Purportedly seeking information regarding 

the turnover of the one-acre parcel that was the subject of JR‟s cross-complaint, the 

e-mail pointed to “many other battles ahead between these clients.” Mahaffey stated: 

“As to the bigger picture, you know of course that final rulings on the issue of lease 

termination and forfeiture, the final wording on the judgment, who is the prevailing party, 

attorneys fees . . . new trial motions, and finally an appeal on over 20+ separate issues 

will be filed.”

He went on to say: “Also, and I am sure this comes as no surprise, a new 

action for lease termination, raising several breaches and illegal conduct issues will be 

filed, probably next week.” According to Mahaffey, he learned for the first time during 

 

6 JR‟s breach of lease claim related to a one-acre parcel JR claimed should have been 

turned over to it in 2009. 
5

trial that JR was illegally selling mobilehomes on the property, because it lacked the 

proper licensing. After going on to list other possible issues that might be raised in a 

second lawsuit, Mahaffey stated: “I know there is a number that my clients would sell 

their fee interest and your clients and their partners would not only avoid substantial risk, 

but would still make millions of dollars from the investment. [¶] If it is not time to talk 

about a serious number that reflects the reality of the risk your clients are taking, I 

understand. There will be many opportunities in the next five years of Superior Court 

and Court of Appeal litigation to further develop the clients view points. We are 

available to discuss that number . . . your clients are nowhere near close to what it would 

take. At this point I assume they understand that 500K a year of an attorneys fees budget 

on this lease will become the norm for many years to come, and that all of [the rulings in 

the first action] will be fully reviewed in approximately 18 months, about the time the 

next jury completes its verdict form. This is a very interesting case to me . . . I am 

excited for round two. If they wish to deprive me of that, let me know if your clients 

want to exchange numbers in a range that my clients will consider. If not, 

congratulations are in order on the jury verdict — I guess.” 

C. The Interpleader Action and Cross-Complaints

On January 17, 2011, the Lawrences sent JR a demand for payment of 

some $30,000 relating to utilities for one part of the property. The letter requested 

payment be made to Mahaffey‟s trust account. Shortly thereafter, JR was served with a 

notice of lien against Mahaffey by Plan 53, LLC. JR‟s counsel sent a response seeking 

clarification as to whether the amounts claimed in the January 17 letter were subject to 

the lien, but no response was forthcoming.

On March 2, JR filed a complaint for interpleader, declaratory relief and 

unjust enrichment regarding payment of money under the lease. On April 26, the 

Lawrences, represented by Mahaffey, filed the first of two cross-complaints. The first 
6

cross-complaint alleged breach of contract for the failure to pay the money demanded in 

the January 17 letter, breach of contract and request for lease termination/forfeiture based 

on the allegedly illegal mobilehome sales, and declaratory relief.7 JR filed an antiSLAPP motion directed toward the first breach of contract cause of action, which the trial 

court denied. We affirmed in JR Enterprises, L.P. v. Lawrence et al. (Jan. 9, 2013, 

G046180) [nonpub. opn.]). 

On April 28, Mahaffey sent another e-mail to JR‟s counsel. “As fun as the 

next five to ten years are going to be between our clients in multiple Courts” he began, 

before urging JR to settle and purchase the property. He then stated that he would like to 

depose some of the limited partners, before closing with: “Regards, and wow this next 

round is going to be a fee generator for a lot of lawyers at your firm . . . (and of course 

me)!” 

On June 20, the Lawrences filed a pleading captioned “Cross-Complaint to 

Cross-Complaint” in the interpleader action (the second cross-complaint). It alleged 

essentially the same three causes of action as the first cross-complaint: breach of 

contract, breach of covenant, and request for lease termination/forfeiture, and declaratory 

relief. The second cross-complaint, which eventually became the subject of the instant 

malicious prosecution action, named both JR and Rochelle, one of the limited partners. 

 

7 The limited partners ask this court to take judicial notice of: 1) the first crosscomplaint, 2) the notice of dismissal of that cross-complaint, 3) the Lawrences‟ 

respondent‟s brief in the appeal of JR‟s anti-SLAPP motion, 4) this court‟s opinion in 

that case (JR Enterprises, L.P. v. Lawrence et al. (Jan. 9, 2013, G046180) [nonpub. opn.]) 

and 5) this court‟s opinion in an unrelated case in which Mahaffey was a defendant 

(Grunder v. Mahaffey (Nov. 7, 2012, G045013) [nonpub. opn.]). 

As court records, these documents are subject to judicial notice under Evidence 

Code sections 452, subdivision (d), and 459. Judicial notice may be granted if the 

documents for which notice is sought are at least minimally relevant to the instant appeal. 

(Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) The first four 

documents listed above meet that standard, but we see no particular relevance as to the 

final document, this court‟s opinion in Grunder v. Mahaffey. The request is therefore 

granted as to the first four documents.
7

The Lawrences alleged Rochelle had ratified JR‟s conduct with respect to the 

mobilehome sales, and alleged generally that the limited partners were co-venturers who 

had ratified JR‟s conduct. The Lawrences had not, at that point, taken the deposition of 

Rochelle or any of the limited partners. 

On July 26, the Lawrences dismissed the first cross-complaint with 

prejudice. On September 12, the Lawrences filed Roe amendments to the second crosscomplaint in the interpleader action, thus adding 45 of JR‟s limited partners as crossdefendants. Some of the amendments were signed by Mahaffey and some were signed 

by Ghormley, his associate. 

Prior to filing the amendments, no depositions of limited partners had been 

taken, although five depositions were noticed subsequently on October 3. Both Mahaffey 

and Ghormley‟s names appeared in the captions of the deposition notices. According to

Mahaffey, he believed, based on his experience, that the limited partners received reports 

relating to financial performance, “attend meetings and are well-informed about the 

dealings of their partnership.” 8 He therefore believed the limited partners knew, among 

other things, about the purportedly illegal mobilehome sales. 

During a phone call with Ghormley on November 4, counsel for the limited 

partners, Chris C. Scheithauer, asked why they had been sued when the limited partners 

were not parties to the lease. She replied, “Doug Mahaffey has plans for the Limited 

Partners.” 

Leland Jay, one of the limited partners who held a three percent interest in 

JR, had his deposition taken on November 10. According to Mahaffey: “[Jay] testified 

that as a JR limited partner he was unaware of how much income JR generated from the 

Property, or what portion of his partnership distributions were attributable to the Property 

 

8 Mahaffey‟s declaration with these statements was excluded (appropriately, as we 

discuss post in Part II.C) by the trial court. We have included limited portions of it here, 

as part of the record below, for the purposes of painting a more complete picture. 
8

(as opposed to JR‟s other holdings). . . . Mr. Jay further testified he did not know if JR 

had a license which allowed it to sell mobile homes, did not know whether JR sold 

mobile homes at the Property, and, if so, did not know if JR generated any income from 

such sales. . . . He testified that while he annually receives a schedule K-1 and an

occasional memo from JR . . . he had never seen JR‟s books or records.” Mahaffey later 

claimed he decided almost immediately to dismiss the limited partners for a number of 

business reasons. 

On November 15, the limited partners (except Rochelle) filed a demurrer to 

the third cause of action in the second cross-complaint.9 On the same date, the limited 

partners filed a challenge under section 170.6 (the 170.6 motion) to trial Judge B. Tam 

Nomoto Schumann. They also filed a cross-complaint against JR for indemnity. 

Mahaffey claims he told counsel for the limited partners about the dismissals before they 

filed these papers. 

On November 16, Mahaffey contacted Scheithauer. According to 

Scheithauer, Mahaffey complained about the 170.6 motion and stated that the Lawrences 

and the limited partners should be “aligned” against JR and Spiezia. Mahaffey stated that 

if the limited partners would withdraw their 170.6 motion, the Lawrences would dismiss 

the limited partners except for Rochelle. He also stated that he would “represent the 

Limited Partners in a „derivative‟ action against JR Enterprises and John Spiezia on 

contingency and would provide a „finders fee‟ to my law firm.” Mahaffey was not 

concerned about a conflict of interest because the limited partners “were „not really at 

 

9 Pursuant to stipulation, the limited partners were not required to file a response to the 

second cross-complaint until December 8, 2011. Defendants seem to imply something 

untoward about their decision to file earlier. 
9

fault.‟” The limited partners had been sued “„to get their attention‟ and be sure they were 

aware of how JR Enterprises had ignored the Lawrences‟ attempts to settle . . . .”10 

Scheithauer and Mahaffey also discussed Rochelle. Mahaffey told 

Scheithauer she was a “special case,”11 and the Lawrences would only dismiss her if she 

produced certain financial information, including confidential tax reports, and agreed to 

testify on the Lawrences‟ behalf. Scheithauer declined all of Mahaffey‟s offers. 

On November 17, Scheithauer was contacted by Ghormley. She called to 

ask whether there would be a stipulation to dismiss the limited partners in exchange for a 

withdrawal of the 170.6 motion. Scheithauer declined again, but did ask about whether 

Rochelle would be included in such a stipulation. Ghormley said she would need to 

check with Mahaffey because Rochelle was a “special case.” Nonetheless, on the same 

day, November 17, the Lawrences proceeded to file dismissals without prejudice as to all 

the limited partners except Rochelle. 

On November 18, Mahaffey wrote Scheithauer a letter expressing his desire 

to “work with [the limited partners] on a business solution that includes, but is not limited 

to, a buyout of some or all of their interest” in exchange for financial documents. He also 

repeated the offer of a derivative action. Among other things, the letter stated: “It is 

transparent, however, from my deposition of Leland Jay, that the limited partners have 

absolutely no involvement with the general partner as to decisions regarding the 

management of the subject lease.” 

 

10 The Lawrences argue, apparently for the first time on appeal, that these statements 

were hearsay. Even if this argument is properly raised (and it is not, for several reasons), 

the statements are admissible against Mahaffey as admissions by a party opponent (Evid. 

Code, § 1220), and against the Lawrences because Mahaffey was their agent (Evid. Code, 

§ 1222).

11 Rochelle was the surviving spouse of JR‟s founder, Ben Rochelle, and had a larger 

financial interest than the other limited partners. 
10

On November 21, Mahaffey called Scheithauer and told him that if the 

170.6 motion was not withdrawn and was granted, the Lawrences would “re-sue” the 

limited partners they had just dismissed. On November 22, Judge Thomas J. Borris 

granted the 170.6 motion and transferred the interpleader action to Judge Andrew P. 

Banks. 

On November 23 (the day before Thanksgiving), the Lawrences applied for 

an ex parte order striking the 170.6 challenge. Scheithauer could not attend as he was 

travelling for the holiday (a situation about which Mahaffey was aware), and an associate 

appeared instead. 

At the hearing before Judge Gregory H. Lewis, Mahaffey told the court that 

the Lawrences had taken the deposition of one of the limited partners, “and became 

convinced that they are so limited in their involvement that those causes of action likely 

could never be proven.” He argued that significant rulings had taken place before Judge 

Schumann, the limited partners‟ 170.6 motion amounted to “forum shopping,” and they 

had acted in bad faith by filing the demurrer and the motion. He also said: “And, 

frankly, [it is] a bit dangerous to challenge the plaintiff in this manner, because if they are 

going to proceed in this bad faith manner, I told their clients they may well end up being 

brought back in as defendants, and that would be something that their attorney caused.” 

During the hearing, Mahaffey also told the court the limited partners had been dismissed 

“with prejudice,” when in fact, the dismissals had been filed without prejudice. 

At the conclusion of the hearing, Judge Lewis, apparently unaware that 

Judge Borris had already granted the 170.6 motion, granted the ex parte application to 

strike the motion. 

On November 28, Rochelle, who had not yet appeared, filed a demurrer, 

cross-complaint and her own 170.6 motion. On November 29, the Lawrences filed a 

dismissal as to Rochelle, and on November 30, they filed an ex parte application to strike 

Rochelle‟s 170.6 motion. The Lawrences argued the dismissal rendered the 170.6 motion 
11

moot. On November 29, Judge Borris issued an order stating that the court would take no 

further action as the matter had already been reassigned to Judge Banks. The Lawrences 

attempted to proceed on their ex parte anyway, but Judge Schumann ordered the 

application off calendar due to Judge Borris‟s order confirming that the case had been 

transferred to Judge Banks. 

At the hearing on December 5 before Judge Steven L. Perk, the Lawrences 

sought relief under section 473. Mahaffey told the court he had “inadvertently” failed to 

dismiss Rochelle at the same time as the other limited partners. Scheithauer challenged 

the assumption that the failure to dismiss Rochelle was a mistake at all, pointing to his 

declaration which recounted his conversations with Ghormley and Mahaffey, including 

Ghormley‟s “special case” comment and Mahaffey‟s attempt to bargain for Rochelle‟s 

dismissal. The court held that the Lawrences had not met their burden to show that relief 

under section 473 was appropriate. 

D. The Malicious Prosecution Action 

On March 5, 2012, twelve of the limited partners filed the instant malicious 

prosecution action against the Lawrences, Mahaffey, Mahaffey & Associates, and 

Ghormley. The complaint pled two causes of action, malicious prosecution for bringing 

the case and malicious prosecution for continuing it. The Lawrences answered with a 

general denial. The attorneys filed an answer pleading several affirmative defenses. 

In May, defendants filed anti-SLAPP motions. The attorneys‟ argument 

focused on probable cause and malice, arguing that the second cross-complaint did not 

allege the limited partners were liable for JR‟s contractual obligations, but were liable for 

participating in illegal conduct (presumably the mobilehome sales) and benefitting from 

those activities. Mahaffey‟s declaration in support of the motion was brief and served 

only to authenticate exhibits. There is no declaration from Ghormley in the record. The 

other evidence submitted in support of the attorneys‟ motion consisted of documents 
12

from the interpleader action. The Lawrences‟ motion also focused on probable cause and 

malice. They did not submit separate exhibits, relying on the attorneys‟ documents, nor 

did they submit a declaration by either Michael or Victoria. 

The limited partners‟ opposition was accompanied by fairly voluminous 

evidence, including more than a dozen declarations. The declarations included all 12 of 

the limited partners, each of whom stated essentially that they were passive investors who 

had no involvement in JR‟s management or operations. The declarations also included 

those from other individuals, including attorneys (both the limited partners‟ and JR‟s), 

Spiezia, and others who had had contact with both Michael Lawrence and the attorneys, 

testifying as to their interactions. The oppositions argued the limited partners had met 

their burden of demonstrating a prima facie case of malicious prosecution existed, and the 

motions should therefore be denied. 

In their reply briefs, defendants raised the issue of favorable termination for 

the first time. Mahaffey also submitted a substantive declaration which stated that his 

reason for dismissing the limited partners was a business decision. Ghormley also filed a 

declaration, essentially stating she was following Mahaffey‟s directions. The Lawrences 

filed a declaration from Michael, in which he claimed he was relying on the advice of

counsel when he decided to sue the limited partners. Mahaffey filed numerous 

evidentiary objections and the Lawrences also filed two others. 

The limited partners then filed objections to the reply declarations, arguing 

that defendants could not submit new evidence with their reply. They also filed a 

declaration from their attorney to address the issues raised by the attorneys for the first 

time in the reply. 

The trial court issued a tentative denying the motions. Among other things, 

the court stated the evidence showed it was “not at all likely” that defendants “can show 

any control exercised by limited partners — in fact evidence shows the defendants knew 

the limited partners were not in control.” Because no tort claims were alleged, the 
13

tortious conduct exception in the Corporations Code did not apply, and evidence of 

malice was “ample.” The tentative also granted various requests for judicial notice, 

overruled the Lawrences‟ and the attorneys‟ evidentiary objections, and sustained the 

limited partners‟ objection to the late reply declarations. The court took the motions 

under submission after hearing argument. The court then issued a minute order 

confirming the tentative. Defendants now appeal.

II

DISCUSSION

A. Statutory Framework

The anti-SLAPP statute states: “A cause of action against a person arising 

from any act of that person in furtherance of the person‟s right of petition or free speech 

under the United States Constitution or the California Constitution in connection with a 

public issue shall be subject to a special motion to strike, unless the court determines that 

the plaintiff has established that there is a probability that the plaintiff will prevail on the 

claim.” (§ 425.16, subd. (b)(1).) The purpose of the anti-SLAPP statute is to dismiss 

meritless lawsuits designed to chill the defendant‟s free speech rights at the earliest stage 

of the case. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.) The 

statute is to be “construed broadly.” (§ 425.16, subd. (a).) 

Section 425.16, subdivision (e), specifies the type of acts included within 

the statute‟s ambit. An “„act in furtherance of a person‟s right of petition or free 

speech . . . in connection with a public issue‟ includes: (1) any written or oral statement 

or writing made before a legislative, executive, or judicial proceeding, or any other 

official proceeding authorized by law, (2) any written or oral statement or writing made 

in connection with an issue under consideration or review by a legislative, executive, or 

judicial body, or any other official proceeding authorized by law, (3) any written or oral 

statement or writing made in a place open to the public or a public forum in connection 
14

with an issue of public interest, or (4) any other conduct in furtherance of the exercise of 

the constitutional right of petition or the constitutional right of free speech in connection 

with a public issue or an issue of public interest.” (§ 425.16, subd. (e).) 

Courts engage in a two-step process to resolve anti-SLAPP motions. 

“„First, the court decides whether the defendant has made a threshold showing that the 

challenged cause of action is one arising from protected activity. The moving 

defendant‟s burden is to demonstrate that the act or acts of which the plaintiff complains 

were taken “in furtherance of the [defendant]‟s right of petition or free speech under the 

United States or California Constitution in connection with a public issue,” as defined in 

the statute. (§ 425.16, subd. (b)(1).)‟” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 

Cal.4th at p. 733.)

“„If the court finds such a showing has been made, it then determines 

whether the plaintiff has demonstrated a probability of prevailing on the claim.‟ 

[Citation.]” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.) To 

establish the requisite probability of prevailing, the plaintiff must state and substantiate a 

legally sufficient claim (Briggs v. Eden Council for Hope & Opportunity (1999) 19 

Cal.4th 1106, 1122-1123), thereby demonstrating his case has at least minimal merit. 

(Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105 

(Cole).) “Put another way, the plaintiff „must demonstrate that the complaint is both 

legally sufficient and supported by a sufficient prima facie showing of facts to sustain a 

favorable judgment if the evidence submitted by the plaintiff is credited.‟ [Citations.]” 

(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The limited partners 

must therefore “produce evidence that would be admissible at trial. [Citation.]” (HMS 

Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 (HMS Capital).) 
15

B. Standard of Review

On appeal, we “review an order granting an anti-SLAPP motion de novo, 

applying the same two-step procedure as the trial court. [Citation.]” (Cole, supra, 206 

Cal.App.4th at p. 1105.) In conducting our review, “[w]e consider „the pleadings, and 

supporting and opposing affidavits . . . upon which the liability or defense is based.‟ 

[Citation.] However, we neither „weigh credibility [nor] compare the weight of the 

evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and 

evaluate the defendant‟s evidence only to determine if it has defeated that submitted by 

the plaintiff as a matter of law.‟ [Citation.]” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)

With respect to evidentiary challenges submitted in connection with an 

anti-SLAPP motion, we review the trial court‟s rulings for abuse of discretion. (Morrow 

v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.) “A trial court‟s 

exercise of discretion will be disturbed only for clear abuse. [Citation.]” (Batarse v. 

Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 827.)

C. Evidentiary Objections to the Reply Declarations

Before we address the substance of the anti-SLAPP motions, we address 

defendants‟ evidentiary argument. Defendants contend the trial court abused its 

discretion by excluding the declarations of Michael, Mahaffey and Ghormley that were 

filed with their reply briefs in the trial court. As noted above, neither the Lawrences nor 

the attorneys submitted substantive declarations with their moving papers. Their 

argument justifying this decision is that because the nonmoving party had the burden of 

satisfying the second prong of the anti-SLAPP statute, minimal merit, the moving party 

was not required to submit any evidence on this point in their moving papers.
16

This argument is misplaced. Neither the Lawrences nor the attorneys cite 

any anti-SLAPP cases in which, for the first time in reply, the moving parties introduced 

entirely new evidence. They cite cases in which courts have considered evidence in 

reply, but such evidence was supplemental to evidence submitted in the moving papers, 

not brand new. In Wong v. Jing (2010) 189 Cal.App.4th 1354 (cited by defendants for 

the first time in their reply briefs), the court, in dicta, suggested that a reply declaration 

was sufficient to establish a defendant‟s lack of liability. There was, however, no explicit 

evidentiary ruling in that case.

Defendants also argue the statutory language of section 425.16, subdivision 

(b)(2), requires the court to consider all evidence submitted. But the statute neither 

suggests nor states that normal rules of evidence and procedure do not apply to antiSLAPP motions, and again, defendants offer no authority suggesting otherwise. They 

contend their decision was justified because they could not possibly guess what the 

limited partners might offer to meet their burden. Defendants are wrong — they knew 

from the complaint exactly what the basis of the limited partners‟ argument was: “The 

purpose of the Lawrences and their counsel in bringing suit against the Limited Partners 

was not to pursue some legal right that they actually believed they possessed. Rather, the 

purpose was a malicious scheme, concocted by the Lawrences, Douglas Mahaffey and 

Susan Ghormley, to so harass and vex the Limited Partners that the Limited Partners 

would — in turn — harass and vex JR Enterprises and otherwise use their power as the 

Limited Partners to force JR Enterprises into settling . . . and as leverage to help the 

Lawrences obtain „a business resolution of their dispute with JR Enterprises,‟ including, 

but not limited to, a buyout of the partnership interests of the Limited Partners.” The 

complaint then goes on to detail the sequence of events with regard to naming the limited 

partners in the interpleader action, including the 170.6 motions. It discusses 

conversations and statements made by the attorneys. It is simply specious for defendants 
17

to argue they had absolutely no idea what evidence the limited partners would be 

presenting.

The general rule of motion practice, which applies here, is that new 

evidence is not permitted with reply papers. This principle is most prominent in the 

context of summary judgment motions, which is not surprising, given that it is a common 

evidentiary motion. “[T]he inclusion of additional evidentiary matter with the reply

should only be allowed in the exceptional case” and if permitted, the other party should 

be given the opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 

362, fn. 8; see Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego 

Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) The same rule 

has been noted in other contexts as well. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 

Cal.App.4th 1292, 1308 [in preliminary injunction proceeding, “the trial court had 

discretion whether to accept new evidence with the reply papers”].) 

This rule is based on the same solid logic applied in the appellate courts, 

specifically, that “[p]oints raised for the first time in a reply brief will ordinarily not be 

considered, because such consideration would deprive the respondent of an opportunity 

to counter the argument.” (American Drug Stores v. Stroh (1992) 10 Cal.App.4th 1446, 

1453; see also Brown v. County of Tehama (2013) 213 Cal.App.4th 704, 720, fn.10.)

To the extent defendants argue they had the right to file any reply 

declarations at all, they are not wrong. Such declarations, however, should not have 

addressed the substantive issues in the first instance, but only filled gaps in the evidence 

created by the limited partners‟ opposition. Defendants‟ decision to wait until the reply 

briefs to bring forth any evidence at all, when the limited partners would have no 

opportunity to respond, was simply unfair. Thus, while the trial court had discretion to 

admit the reply declarations, it was not an abuse of discretion to decline to do so. 

In any event, even if we were to consider this evidence, it is ultimately of 

little import, due to the manner in which anti-SLAPP motions are reviewed. As we 
18

discussed above, “we neither „weigh credibility [nor] compare the weight of the evidence. 

Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate 

the defendant‟s evidence only to determine if it has defeated that submitted by the 

plaintiff as a matter of law.‟ [Citation.]” (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) 

D. Protected Activity

As noted ante in section II.A, the first step in the anti-SLAPP analysis is to 

determine whether the challenged cause of action arises from protected activity. (Jarrow 

Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.) This first step is readily 

satisfied here, as it is in nearly all claims for malicious prosecution. (See id. at pp. 734-

735.) “It is well established that filing a lawsuit is an exercise of a party‟s constitutional 

right of petition. [Citations.] „“„[T]he constitutional right to petition . . . includes the 

basic act of filing litigation or otherwise seeking administrative action.‟”‟ [Citations.]” 

(Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) “Under these accepted 

principles, a cause of action arising from a defendant‟s alleged improper filing of a 

lawsuit may appropriately be the subject of a section 425.16 motion to strike. [Citation.] 

The essence of the [plaintiffs‟] malicious prosecution claim is that the plaintiff in the 

underlying action . . . filed litigation that was improper because it was allegedly filed with 

a malicious motive and without probable cause. This claim „aris[es] from‟ the 

defendant‟s constitutionally protected petitioning activity, and therefore is subject to the 

anti-SLAPP statute. [Citation.]” (Id. at p. 1087-1088; see also Cole, supra, 206 

Cal.App.4th at p. 1105.) We therefore turn to the question of whether the limited 

partners established the requisite probability of prevailing on his claim.

E. Malicious Prosecution — Prima Facie Requirements

“To prevail on a malicious prosecution claim, the plaintiff must show that 

the prior action (1) was commenced by or at the direction of the defendant and was 
19

pursued to a legal termination favorable to the plaintiff; (2) was brought without probable 

cause; and (3) was initiated with malice. [Citation.]” (Soukup, supra, 39 Cal.4th at p. 

292.) Continuing an already filed lawsuit without probable cause may also be the basis 

for a malicious prosecution claim. (Zamos v. Stroud (2004) 32 Cal.4th 958, 969 (Zamos); 

see also Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.)

We keep in mind that malicious prosecution is a “disfavored action.” 

(Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 566.) “[T]he elements of 

[malicious prosecution] have historically been carefully circumscribed so that litigants 

with potentially valid claims will not be deterred from bringing their claims to court by 

the prospect of a subsequent malicious prosecution claim.” (Sheldon Appel Co. v. Albert 

& Oliker (1989) 47 Cal.3d 863, 872 (Sheldon Appel).) 

F. Favorable Termination

“To determine whether a party has received a favorable termination, we 

consider „“the judgment as a whole in the prior action . . . .” [Citation.]‟ [Citation.] 

Victory following a trial on the merits is not required. Rather, „“the termination must 

reflect the merits of the action and the plaintiff‟s innocence of the misconduct alleged in 

the lawsuit.” [Citation.]‟ [Citation.]” (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 

741.) The defendants argue that the dismissal of the limited partners was not a 

termination on its merits, but reflected the business decision rationale set forth in 

Mahaffey‟s properly excluded declaration, or other “practical grounds.” 

“A voluntary dismissal is presumed to be a favorable termination on the 

merits . . . .” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 

1385, 1400.) Here, defendants offer no evidence to rebut this presumption other than 

Mahaffey‟s excluded declaration, which is, of course, not evidence at all. 

Even if we were to consider Mahaffey‟s declaration on this point, his selfserving testimony is belied by other statements, such as telling the court that “the limited 
20

partners have absolutely no involvement with the general partner as to decisions 

regarding the management of the subject lease.” Such a contemporaneous statement 

strongly suggests the limited partners were dismissed because they had no liability. At 

best, the evidence is conflicting and therefore cannot defeat the limited partners‟ prima 

facie case. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) From either angle, the court 

properly found the limited partners had set forth a prima facie case of favorable 

termination.

G. Probable Cause

“Probable cause exists when a lawsuit is based on facts reasonably believed 

to be true, and all asserted theories are legally tenable under the known facts.” (Cole, 

supra, 206 Cal.App.4th at p. 1106.) The court must “determine whether, on the basis of 

the facts known to the defendant, the institution of the prior action was legally tenable.” 

(Sheldon Appel, supra, 47 Cal.3d at p. 878.) We evaluate this question of law under an 

objective standard, asking whether any reasonable attorney would have thought the claim 

tenable. (Zamos, supra, 32 Cal.4th at p. 971.) 

More specifically, “„“probable cause to bring an action does not depend on 

it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely 

lacking in merit that no reasonable attorney would have thought the claim tenable. 

[Citation.]”‟ [Citation.] Probable cause exists if the claim is legally sufficient and can be 

substantiated by competent evidence. [Citation.]” (Antounian v. Louis Vuitton Malletier

(2010) 189 Cal.App.4th 438, 448-449.) “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 
21

legal theory which is untenable under the facts known to him.” (Sangster v. Paetkau

(1998) 68 Cal.App.4th 151, 164-165.)

The limited partners argue that they are absolutely immune from any 

lawsuit seeking to impose liability on JR under the lease. Under the Uniform Limited 

Partnership Act (ULPA) (Corp. Code, § 15900 et seq.), limited partners are immune from 

limited partnership liabilities unless they participate in the operations of the partnership. 

If there is any liability, it is only to those people or entities with whom they transacted 

business and who believed they were acting as general partners. (Corp. Code, § 

15903.03, subd. (a).) The limited partners contend there is no dispute that the lease is the 

subject of the underlying action, they were not parties to the lease, and there was no 

evidence that any of the limited partners ever transacted business with the Lawrences. 

Indeed, the evidence was to the contrary. 

They therefore argue that given these facts, no reasonable attorney could 

ever have thought it was reasonable to bring the claims in the second cross-complaint for 

breach of contract, breach of covenant, and declaratory relief. The breach of contract 

cause of action specifically alleged a breach of the lease. The second cause of action for 

breach of covenant alleged JR had breached a covenant in the lease by conducting illegal 

mobilehome sales, and the limited partners “ratified this illegal conduct.” The basis for 

the second cause of action was that such alleged illegal activity violated a specific 

provision in the lease. The declaratory relief claim merely alleged there was a 

controversy and sought a declaration interpreting the responsibilities of the parties. 

Based on the narrowly circumscribed liability of limited partners under law, and the 

nature of the claims alleged in the second cross-complaint, we agree with the limited 

partners that they have stated a prima facie case demonstrating a lack of probable cause. 

We therefore examine defendants‟ evidence to see if they can defeat the claim as a matter 

of law. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
22

Defendants contend that the limited partners were not exempt from tort

liability, relying on an exemption in Corporations Code section 15903.03, subdivision 

(a). This is an interesting argument, considering, as described above, the cross-complaint 

alleged claims for breach of contract, breach of a covenant in that same contract, and 

declaratory relief. The Lawrences claim the allegations relating to the second cause of 

action, relating to the mobilehome sales, were sufficient to constitute a tort theory of 

liability. The attorneys contend “the evidence presented to the court established at least 

an inference that the Limited Partners were liable in tort to the Lawrences.” They point 

to Mahaffey‟s assertions as to his understanding of limited partners‟ participation in 

partnership dealings, again pointing to these statements in his excluded declaration. 

First, once again, the defendants‟ only actual evidence on this point is based 

on properly excluded evidence. Second, we reject their contention that unpled hidden 

theories of liability are sufficient to create probable cause. Their citations to cases 

regarding the permissibility of liberal amendments are simply misplaced here, because at 

no time did the defendants amend or seek to amend their second cross-complaint to 

include tort claims. Third, defendants failed to offer any evidence that the alleged 

statutory violations were subject to a private right of action, and thus, cognizable claims 

by the Lawrences at all. (See Health & Saf. Code, § 18020 [the statute allegedly 

violated] and Health & Saf. Code, §§ 18002.8, 18020, subd. (a), 18021.5, subds. (b), (e) 

[discussing enforcement by the Department of Housing and Community Development].) 

The limited partners also cite Kreeger v. Wanland (2006) 141 Cal.App.4th 

826 (Kreeger), arguing that even if the Lawrences had valid unpled tort claims, they were 

required to demonstrate probable cause for each and every cause of action in the 

underlying case. “Where a prior action asserted several grounds for liability, an action 

for malicious prosecution will lie if any one of those grounds was asserted with malice 

and without probable cause. [Citation.]” (Id. at p. 832.) The limited partners argue it is 

indisputable that the Lawrences sued them for breach of lease, a cause of action that no 
23

reasonable attorney would bring given the state of the law regarding the liability of 

limited partners for contractual obligations. They are correct. 

The Lawrences, for the first time in their reply brief, argue they relied on 

Mahaffey‟s advice. This is often a valid defense. “Reliance upon the advice of counsel, 

in good faith and after full disclosure of the facts, customarily establishes probable cause. 

[Citations.]” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556.) As discussed above, 

however, we do not entertain new points raised for the first time in a reply brief absent

good cause. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) There is absolutely 

no sound reason this issue could not have been raised in the Lawrences‟ opening brief. 

We therefore grant the limited partners‟ motion to strike pages 13-17 of the Lawrences‟ 

reply brief.

Further, even if we were to consider this argument, it is premised on 

statements made by Mahaffey and Michael in their excluded reply declarations, and 

therefore unsupported by admissible evidence. In sum, we conclude the limited partners 

successfully set forth a prima facie showing of the lack of probable cause, and this 

evidence was not defeated, as a matter of law, by defendants‟ evidence.12 (Soukup,

supra, 39 Cal.4th at p. 269, fn. 3.)

H. Malice

“The „malice‟ element . . . relates to the subjective intent or purpose with 

which the defendant acted in initiating the prior action. [Citation.] The motive of the 

defendant must have been something other than that of bringing a perceived guilty person 

to justice or the satisfaction in a civil action of some personal or financial purpose. 

 

12 Because we conclude there was no probable cause to bring the case against the limited 

partners at any time, we need not separately consider the issue of whether defendants 

wrongfully continued prosecuting the case after becoming aware of a lack of probable 

cause.
24

[Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior 

motive. [Citation.]” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 

(Downey Venture).) 

The lack of probable cause is one factor in determining the presence of 

malice, but alone it is insufficient. (HMS Capital, supra, 118 Cal.App.4th at p. 218.) 

“Merely because the prior action lacked legal tenability, as measured objectively (i.e., by 

the standard of whether any reasonable attorney would have thought the claim tenable 

[citation]), without more, would not logically or reasonably permit the inference that 

such lack of probable cause was accompanied by the actor‟s subjective malicious state of 

mind. In other words, the presence of malice must be established by other, additional 

evidence.” (Downey Venture, supra, 66 Cal.App.4th at p. 498, fn. omitted.) 

Such other evidence “is not limited to actual hostility or ill will toward the 

plaintiff. Rather, malice is present when proceedings are instituted primarily for an 

improper purpose.” (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 

1157.) “Suits with the hallmark of an improper purpose” include “those in which: „“. . .

(1) the person initiating them does not believe that his claim may be held valid; (2) the 

proceedings are begun primarily because of hostility or ill will; (3) the proceedings are 

initiated solely for the purpose of depriving the person against whom they are initiated of 

a beneficial use of his property; (4) the proceedings are initiated for the purpose of 

forcing a settlement which has no relation to the merits of the claim.”‟ [Citation.]” 

(Ibid.)

Because direct evidence of malice is rarely available, “malice is usually 

proven by circumstantial evidence and inferences drawn from the evidence.” (HMS 

Capital, supra, 118 Cal.App.4th at p. 218.) 

1. Mahaffey
25

The trial court found there was “ample” evidence of malice, and much of 

that evidence relates directly to Mahaffey. Mahaffey‟s statement during the first breach 

of lease case that “the limited partners make no decisions” strongly suggests that 

Mahaffey was well aware that as a general rule, limited partners did not actively 

participate in the management of a limited partnership. 

After that case was over, Mahaffey sent an e-mail to JR‟s counsel that 

included a number of thinly veiled threats of ongoing litigation, pointing to “many other 

battles ahead between these clients.” He warned of a new action, and stated that if JR did 

not wish to discuss settlement seriously, “[t]here will be many opportunities in the next 

five years of Superior Court and Court of Appeal litigation to further develop the clients 

view points. . . . At this point I assume they understand that 500K a year of an attorneys 

fees budget on this lease will become the norm for many years to come . . . .” Several 

months later, after the interpleader action was filed, Mahaffey again stated that if JR did 

not settle, they could look forward to “the next five to ten years are going to be between 

our clients in multiple Courts” which would be a “fee generator” for the lawyers in the 

case. Taken together, all of these statements raise a strong inference that Mahaffey‟s 

(and the Lawrences‟) goal in the ongoing litigation was not to resolve genuine legal 

disputes, but to push JR into a settlement. 

Rochelle was brought into the interpleader action when the Lawrences filed 

the second cross-complaint, and the other limited partners were added by Roe 

amendment shortly thereafter. A number of things happened thereafter that suggest the 

limited partners were sued for an improper purpose. When Scheithauer asked Ghormley 

why the limited partners had been sued for breach of a lease to which they were not 

parties, she responded that “Doug Mahaffey has plans for the Limited Partners.” 

After the limited partners (except Rochelle) filed a demurrer and 170.6 

motion, Mahaffey contacted Scheithauer and claimed that the Lawrences and the limited 

partners should be “aligned” against JR and Spiezia. He offered to dismiss the limited 
26

partners (except Rochelle) if they would withdraw the 170.6 motion, and then offered to 

“represent the Limited Partners in a „derivative‟ action against JR Enterprises and John 

Spiezia on contingency and . . . provide a „finders fee‟” to Scheithauer‟s firm. He was 

unconcerned about a conflict of interest because the limited partners “were „not really at 

fault‟” and had been sued “„to get their attention‟ and be sure they were aware of how JR 

Enterprises had ignored the Lawrences‟ attempts to settle . . . .” After the limited partners 

were dismissed, Mahaffey called Scheithauer and told him that if the 170.6 motion was 

not withdrawn and was granted, the Lawrences would “re-sue” the limited partners they 

had just dismissed. He repeated similar threats in court. 

All of these acts raise a very strong inference that the limited partners had 

not been sued to vindicate a legal right, but to act as pawns in the Lawrences ongoing 

chess game against JR. Indeed, a reasonable trier of fact could conclude that this case 

appears to be a poster child for cases instituted primarily for an improper purpose, which 

is one of the hallmarks of malice. (Sierra Club Foundation v. Graham, supra, 72 

Cal.App.4th at p. 1157.)

The only evidence to contradict the facts the limited partners established 

was Mahaffey‟s reply declaration, which, as we have noted several times, was properly 

deemed inadmissible. But even if we did consider Mahffey‟s self-serving declaration, at 

best it would serve to create factual disputes that are not sufficient grounds upon which to 

grant the anti-SLAPP motion. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) Was the 

evidence sufficient? “Overwhelming” would be a better word. The limited partners 

more than met their burden to establish a prima facie case of malice as to Mahaffey.

2. Ghormley

Ghormley‟s argument, supported by evidence raised for the first time below 

in her stricken reply declaration, essentially argued that she was an associate who was 
27

following Mahaffey‟s instructions and nothing more. Even if we considered the stricken 

reply, there is sufficient evidence of malice to overcome an anti-SLAPP motion. 

The limited partners presented evidence that Ghormley signed 25 of the 

Roe amendments, and her name appeared in the captions of the five deposition notices 

served on the limited partners. She also communicated with Scheithauer, telling him, 

when asked why the limited partners were being sued for breach of a lease to which they 

were not parties, that “Doug Mahaffey has plans for the Limited Partners.” In another 

call, in which she offered to dismiss the limited partners if the first 170.6 motion was 

withdrawn, she referred to Rochelle as a “special case.” When Rochelle was finally 

dismissed, Ghormley “personally processed” the paperwork. 

Attorneys have been held liable for associating into cases containing 

frivolous claims. (Cole, supra, 206 Cal.App.4th at p. 1119.) The attorneys in Cole

claimed “they did no actual work” (id. at p. 1115) on the case underlying the malicious 

prosecution action and had merely associated in on the matter. The court rejected their 

argument that they could avoid liability for malicious prosecution “merely by showing 

that they took a passive role in that case as standby counsel.” (Id. at p. 1100.) 

We recognize that an associate attorney is not in the same position as an 

attorney associating into a case. There is a clear imbalance of power between an often 

younger associate and an older partner or supervisor, and situations may arise where an 

associate is put into a difficult position by questioning a more experienced attorney‟s 

choices. Nonetheless, however, every attorney admitted to practice in this state has 

independent duties that are not reduced or eliminated because a superior has directed a 

certain course of action. (See Bus. & Prof. Code, § 6068.) Thus, the fact that she was 

following a superior‟s instructions is not a valid defense to malicious prosecution. 

We agree with the trial court that the case against Ghormley was not 

overwhelming, but her actions were sufficient to raise an inference of malice. She did 

not merely sign documents, but knew enough about the case to speak to opposing counsel 
28

and to propose dismissal in exchange for withdrawing a 170.6 motion — an action that 

strongly gives rise to an inference that she knew the case had no merit and was being 

prosecuted for an improper purpose. Thus, the evidence of malice is sufficient to 

overcome an anti-SLAPP motion.

3. The Lawrences

Michael‟s pre-litigation conduct, when taken together with the lack of 

probable cause, is sufficient to give rise to an inference of malice due to improper 

purpose. The evidence demonstrated that Michael wanted to sell and redevelop the 

property, which was impossible due to the long-term lease, and was actively looking for 

ways to end the lease. Among other things, he tried to reach a side deal with Spiezia, 

tried to organize the limited partners against JR, and tried to persuade the City of 

Anaheim to “threaten condemnation” to achieve his goal of terminating the lease. Taken 

together, these facts raise an inference that Michael did not bring the limited partners into 

the case because he truly believed they were liable, but as another tactic to create enough 

misery for JR that they would settle the case. Because of the close relationship between 

the Lawrences, it is reasonable to infer that Victoria was aware of Michael‟s actions and 

shared his intent. We would find the same to be true, incidentally, if Victoria had been 

the more active spouse in this matter.

The Lawrences offer no evidence sufficient to overcome these facts as a 

matter of law. Michael‟s reply declaration, as we have noted, was properly excluded, and 

at best it would create factual disputes insufficient to overcome the limited partners‟ 

prima facie case. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) Victoria offered no 

evidence at all. We therefore conclude the court did not err in finding the limited 

partners had established a prima facie case of malice as to the Lawrences.
29

III

DISPOSITION

The trial court‟s order is affirmed. The limited partners are entitled to their 

costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.
30

Filed 8/23/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUSSELL C. JAY et al.,

 Plaintiffs and Respondents,

v.

DOUGLAS MAHAFFEY et al.,

 Defendants and Appellants.

 G047325

 (Super. Ct. No. 30-2012-00550608)

 ORDER GRANTING REQUEST FOR

 PUBLICATION; NO CHANGE IN

 JUDGMENT

Respondents have requested that our opinion, filed on July 31, 2013, be certified 

for publication. It appears that our opinion meets the standards set forth in California 

Rules of Court, rule 8.1105(c). The request is GRANTED.

The opinion is ordered published in the Official Reports.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.