Filed 6/27/17 Boladian v. Clough CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ARMEN BOLADIAN et al.,

Plaintiffs and Respondents,

v.

LARRY H. CLOUGH,

Defendant and Appellant.
B269508 [related pending appeals B268550, B267950, B270472]

(Los Angeles County
Super. Ct. No. BC576665)


APPEAL from an order of the Superior Court of Los Angeles County, Michael J. Raphael, Judge. Affirmed in part, reversed in part and remanded with directions.
Law Offices of John M. Kalajian and John M. Kalajian for Defendant and Appellant.
King & Ballow and Paul H. Duvall for Plaintiffs and Respondents.
_________________________

Defendant and appellant Larry H. Clough (Clough) appeals an order denying his special motion to strike a malicious prosecution complaint filed by plaintiffs and respondents Armen Boladian (Boladian), Bridgeport Music, Inc. (Bridgeport), and Westbound Records, Inc. (Westbound) (sometimes collectively referred to as Boladian). ~(503, 511)~
The issues presented include whether the malicious prosecution complaint was filed timely, and whether plaintiffs met their burden to establish a reasonable probability of prevailing on each of the elements of their cause of action.
For the reasons discussed below, we affirm the order denying Clough’s special motion to strike as to Boladian and Westbound, but reverse as to Bridgeport, which was named as a defendant only after Clough substituted out of the case.
FACTUAL AND PROCEDURAL BACKGROUND
1. The underlying action.
On December 5, 2011, musician George Clinton filed suit in the United States District Court for the Central District of California against Westbound, its owner, Boladian, and others.~(AA 103, 109)~ Clinton was represented in that action by Clough,~(AA 103)~ and Clinton’s complaint also listed Jeffrey P. Thennisch (Thennisch) of Dobrusin & Thennisch (the Dobrusin firm), a Michigan law firm, as counsel to Clinton.~(AA 162)~
The complaint, which contained 15 causes of action, alleged that Clinton is the original creator of, and has rights, title and interest in, the Funkadelic sound recordings released by Westbound (the Westbound Sound Recordings),~(AA 105-106)~ and that in 1969, Clinton granted Westbound rights to said recordings in exchange for Westbound’s duty to account and pay 50 percent of monies collected for the sale and commercial exploitation of those recordings.~(AA 106)~ However, defendants “have unlawfully utilized the [recordings] without the permission of [Clinton] and without accounting or paying royalties to [Clinton[.”~(AA 106-107)~ Among other things, Clinton requested a judicial declaration that he, and not the defendants, is the owner of all rights relating to the copyright interests and sound recordings comprising the Westbound Sound Recordings.~(AA 126)~
On January 4, 2013, Stroock & Stroock & Lavan (Stroock) and Daniel A. Rozansky substituted into the case in place of Clough,~(AA 167)~ who had been ill.~(AA 282)~ On January 7, 2013, the matter was before Judge Manuel L. Real on an order to show cause why the action should not be dismissed for lack of prosecution.~(AA 169)~ Judge Real ordered the action dismissed without prejudice, with 30 days leave to file an amended complaint.~(AA 169-171)~
On February 6, 2013, Clinton, through his new counsel, the Stroock firm, filed a first amended complaint, which added Bridgeport as a defendant, and asserted two causes of action: copyright infringement and declaratory relief.~(AA 173)~ The gravamen of the action remained the same. Clinton alleged that Boladian unlawfully utilized his intellectual property.
On April 1, 2013, Judge Real granted a defense motion to dismiss for failure to state a claim and lack of personal jurisdiction.~(RA 457)~ The April 1, 2013 order stated: “The Court will issue a proposed order.”~(AA 187)~
On May 2, 2013, Judge Real signed and entered an order dismissing the underlying action with prejudice. The court ruled, inter alia, it lacked personal jurisdiction over Bridgeport; Clinton failed to state a claim for copyright infringement, as the amended complaint was completely devoid of facts concerning any specific instances of infringement; the declaratory relief claim was duplicative of the copyright infringement claim and was unnecessary; and Clinton was not entitled to further leave to amend.~(AA 188-192)~
On May 31, 2013, Clinton filed a notice of appeal to the Ninth Circuit.~(AA 253)~
On May 8, 2014, the Ninth Circuit dismissed the appeal for failure to file an opening brief.~(AA 273)~
2. The instant action.
a. Boladian’s complaint for malicious prosecution.
On March 25, 2015, Boladian, Bridgeport and Westbound filed suit against Clinton and his attorneys in the underlying action, including Clough, Thennisch and the Dobrusin firm.~(AA 1)~ As against Clough, the complaint pled a cause of action for malicious prosecution of the underlying action.~(AA 33)~ The complaint alleged in relevant part:
The 2011 litigation and subsequent appeal to the Ninth Circuit terminated in Boladian’s favor.~(AA 33, 22)~
Prior to initiating the 2011 litigation, Clough knew Clinton’s allegations were not tenable, and even assuming Clough could prove he believed at the inception that Clinton’s claims were tenable, Clough continued to prosecute the action after learning that Clinton’s claims were not supported by probable cause.~(AA 4)~ Pursuant to a 1972 written agreement between Clinton and Westbound, all master recordings were Westbound’s exclusive property,~(AA 7)~ and a 1975 agreement terminating the 1972 agreement reiterated that Westbound retained in perpetuity the exclusive rights to the master recordings and copyrights thereon.~(AA 7-8)~ Further, in a 1984 bankruptcy filing, Clinton did not claim any recordings or any right to receive royalties from Boladian on his list of assets.~(AA 11)~ Thus, Clinton lacked probable cause to allege in the 2011 litigation that he never entered into an agreement with Westbound granting it ownership of the master recordings.~(AA 15)~ Clinton deliberately omitted the 1972 agreement and the 1975 agreement from the original complaint in the underlying action, knowing that those documents would undermine his claims and would be entirely inconsistent with his claim that he never entered into any agreements with Westbound.~(AA 16)~ Further, Clough continued to prosecute the lawsuit even after being advised by Boladian’s attorney, Paul Duvall, of “the glaring deficiencies in Clinton’s claims against [Boladian].”~(AA 19)~
Boladian’s complaint further pled: Clinton and Clough initiated and pursued the 2011 litigation for an improper purpose and for motives other than to secure the proper adjudication of the allegations in the underlying action.~(AA 34)~ In the 2011 litigation, Clough filed a copy of a defamatory and irrelevant declaration by Jane Peterer, a former Bridgeport employee; that declaration previously had been sealed by the district court in Michigan in an unrelated case.~(AA 17)~ “The filing of the Peterer Declaration was a ruse to allow Clinton to publish the contents on his web site and in his autobiography,” and was done with the purpose of destroying Boladian’s reputation.~(AA 25)~
b. Clough’s special motion to strike.
On September 14, 2015, Clough filed a special motion to strike the malicious prosecution claim against him.~(AA 69-70)~
Clough asserted he met his initial burden to invoke the protections of section 425.16 because a cause of action for malicious prosecution is subject to scrutiny under the statute as a matter of law.~(AA 73)~
Clough further contended that Boladian was incapable of prevailing on the malicious prosecution claim.~(AA 74)~ Clough asserted the malicious prosecution claim was time-barred as to him because the statute of limitations on the cause of action against him started running no later than January 25, 2013, (when Judge Real dismissed the original complaint with leave to amend).~(AA 75, 171)~
Clough also argued that he never sued Bridgeport, which was named as a defendant only after he substituted out of the case.~(AA 77)~
Additionally, Clough argued: the January 2013 order dismissing the action without prejudice was not a favorable termination for Boladian because the action was ongoing; Boladian could not establish that Clough lacked probable cause to believe that Clinton’s claims were tenable; Clough had no liability for events occurring in the case after he substituted out; and Boladian was incapable of demonstrating malice.~(AA 77-82)~
c. Boladian’s opposition to the special motion to strike.
In opposition, Boladian contended the malicious prosecution action, filed March 25, 2015, was timely, because the underlying action did not terminate until May 2, 2013, when the federal court entered an order dismissing the action with prejudice, and the running of the statute was tolled during the pendency of Clinton’s appeal to the Ninth Circuit.~(AA 398-400)~
Further, Boladian was capable of proving the elements of the cause of action: Clough initiated and pursued the 2011 litigation, which terminated in Boladian’s favor with a dismissal with prejudice on May 2, 2013.~(AA 405)~ Clough lacked probable cause to allege the primary claim in the complaint that he drafted, i.e. that Clinton never entered into a written agreement with Westbound regarding ownership of the Westbound Masters, and that the alleged oral agreement should be rescinded because Westbound never accounted to Clinton.~(AA 404)~ Clinton either knew, or should have known, of Clinton’s signed agreements with Westbound; there was also significant correspondence between the parties, including royalty statements, and Clinton did not list any right to receive royalties or any ownership of master recordings in his 1984 bankruptcy filing. Finally, with respect to the element of malice, Clough’s use of the Peterer declaration in the 2011 litigation tended to show Clough’s improper purpose in filing and pursuing the 2011 litigation.~(AA 407)~
d. Trial court’s ruling.
On November 10, 2015, after hearing the matter, the trial court entered an order denying Clough’s special motion to strike in its entirety.
With respect to the statute of limitations, the trial court ruled as follows: the one-year statute of limitations (§ 340.6, subd. (a)) was applicable because Clough was alleged to have violated a professional obligation as an attorney; Boladian’s cause of action for malicious prosecution began to run on May 2, 2013, when Judge Real entered a final order terminating the underlying action, rather than on April 1, 2013, when Judge Real granted the motion to dismiss. In addition, the running of the statute was tolled from May 31, 2013, to May 8, 2014, due to the pendency of Clinton’s appeal to the Ninth Circuit; therefore, the malicious prosecution complaint filed on March 25, 2015 was timely.~(AA 506-507)~
The trial court added, “[a]s for the other issues raised in defendant Clough’s motion, plaintiffs have, at this stage, at least [made] the prima facie case necessary to survive a motion to [strike]. Whether the [termination] in the federal case was favorable, lack of probable cause, and malicious intent are triable issues. Consequently, with a timely complaint, plaintiffs have established a probability of prevailing on the merits, and defendant Clough’s anti-SLAPP motion is denied.”~(AA 508)~
Clough filed a timely notice of appeal from the order denying his special motion to strike.~(AA 511, notice of appeal filed 1/11/16, notice of entry of order served on 11/25/15)~
CONTENTIONS
Clough contends: he was not a proper malicious prosecution defendant because he substituted out of the underlying case as counsel of record before the filing of the operative first amended complaint, which superseded the original complaint that he filed; the malicious prosecution complaint was time-barred as to him; plaintiffs failed to meet their burden to establish a probability of prevailing on their malicious prosecution claim; and the trial court erred in its evidentiary rulings.
DISCUSSION
1. General principles.
“The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. [The Supreme Court has] described this second step as a ‘summary-judgment-like procedure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, fn. omitted.) Our review of the trial court’s order denying Clough’s special motion to strike is de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
There is no question that the malicious prosecution action against Clough arose from his protected activity in representing Clinton, who was the plaintiff in the underlying action against Boladian. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [malicious prosecution action necessarily arises from protected petitioning activity in filing the underlying lawsuit].) Therefore, the issues in this appeal relate to the second step of the analysis, namely, whether the Boladian plaintiffs met their burden to establish a probability of prevailing on their malicious prosecution claim. (§ 425.16, subd. (b)(1).)
“ ‘To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ ” (Crowley v. Katleman (1994) 8 Cal.4th 666, 676.)
2. Bridgeport has no cause of action against Clough for malicious prosecution; the trial court erred in denying Clough’s special motion to strike Bridgeport’s cause of action against him.
As a preliminary matter, Clough’s original complaint in the underlying action did not include Bridgeport as a defendant.~(AA 103-104)~ Bridgeport was added as a defendant by way of the first amended complaint, filed by Stroock on Clinton’s behalf on February 6, 2013.~(B269508, Boladian/Stroock appeal, Applts Supp Appdx p. 145)~ Therefore, Clough nether commenced nor prosecuted the underlying action as against Bridgeport. With respect to Bridgeport, the trial court erred in denying Clough’s special motion to strike the malicious prosecution action.
3. No merit to Clough’s theory that Boladian and Westbound’s cause of action against him for malicious prosecution is time-barred; in accordance with the start/stop rule, the lawsuit against Clough was filed within one year of entry of judgment in the underlying action.
As this court stated in Roger Cleveland Golf Company, Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, “Pursuant to the “start/stop” computation refined by this court in Rare Coin Galleries, Inc. v. A–Mark Coin Co., Inc. (1988) 202 Cal.App.3d 330 (Rare Coin), a cause of action for malicious prosecution accrues upon entry of judgment in the underlying action in the trial court. (Id. at pp. 334–335.) The statute of limitations begins to run upon accrual and continues to run until the date of filing a notice of appeal. (Id. at p. 335.) The statute is then tolled during the pendency of the appeal because the plaintiff cannot truthfully plead favorable termination of the prior action, which is an element of the malicious prosecution cause of action. At the conclusion of the appellate process, that is, when the remittitur issues, the statute of limitations recommences to run. (Id. at pp. 335–336.) (Roger Cleveland, supra, 225 Cal.App.4th at pp. 667-668.)
Here, on May 2, 2013, Judge Real entered an order granting Boladian’s motion to dismiss the underlying action with prejudice.~(RA 181-186)~ Twenty-nine days later, on May 31, 2013, Clinton filed notice of appeal to the Ninth Circuit.~(AA 253)~ On May 8, 2014, the Ninth Circuit dismissed Clinton’s appeal for failure to file an opening brief.~(B268550, id. at pp. 399-400)~ On March 25, 2015, Boladian filed the instant action against Clough for malicious prosecution.~(AA 1)~ Taking into account the time that Clinton’s appeal was pending in the Ninth Circuit, the instant action was filed less than one year after Judge Real entered judgment in the underlying action. ~(by my computation, the malicious prosecution action was filed 350 days after Judge Real entered judgment for Boladian, after deducting the time the matter was pending in the 9th Circuit)~
Clough’s arguments to the contrary are meritless. Clough asserts the cause of action for malicious prosecution is time-barred because the statute of limitations began to run either on January 7, 2013 (the date of the minute order dismissing the initial complaint “with 30 days leave to plaintiff to file an amended complaint”)~(AA 169)~ or on January 25, 2013 (the date Judge Real signed the formal order of dismissal with 30 days leave to amend).~(AA 170-171)~ As discussed above, a cause of action for malicious prosecution accrues upon entry of judgment in the underlying action in the trial court. (Roger Cleveland, supra, 225 Cal.App.4th at p. 667.) The January 2013 orders cited by Clough, which granted Clinton leave to file an amended complaint, did not amount to a final judgment and did not commence the running of the limitations period. Therefore, we reject Clough’s argument that the malicious prosecution action against him was barred by the one-year statute of limitations.
4. No merit to Clough’s theory he was not a proper malicious prosecution defendant because (1) he was not the attorney of record who filed the operative first amended complaint, and (2) the original complaint that he filed was superseded by Stroock’s first amended complaint.
Clough emphasizes that he substituted out of the case on January 4, 2013, did not appear at the January 7, 2013 hearing on the motion to dismiss, and had nothing to do with the subsequent filing of a first amended complaint against Boladian. Clough maintains that his authority to act, and his liability for any actions he took, ceased on the date he substituted out of the case, and after January 4, 2013, Stroock was solely responsible for the prosecution of the case.~(AOB 15-16)~
Clough’s theory that his limited role in the underlying action precludes any liability for malicious prosecution is meritless. Clough was the attorney of record at the time that Clinton initiated the underlying action. That is sufficient to give rise to Clough’s potential liability for malicious prosecution. As this court stated in Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1372, “ ‘[i]t is enough if [the defendant] was instrumental in setting the [lawsuit] in motion and caused the [action] to proceed.” [Citation.]’; 54 C.J.S., Malicious Prosecution, § 14, p. 966, stating that “[t]he test of liability in an action for malicious prosecution is: Was defendant actively instrumental . . . [or] the proximate and efficient cause of maliciously putting the [lawsuit] in motion[?]” (fns. omitted).)” (Accord, Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131, fn. 11.) Thus, the fact that Clough later substituted out of the case does not absolve him of potential liability for his role in initiating and prosecuting the underlying lawsuit.
Clough also emphasizes that he was no longer the attorney of record at the time of the filing of the first amended complaint, which was the operative pleading and which was dismissed with prejudice.~(AOB 15)~ In support, he relies on a passage in Cole v. Patricia A. Meyers & Associates, APC (2012) 206 Cal.App.4th 1095, 1119, which states: “Attorneys may easily avoid liability for malicious prosecution without having to engage in premature work on a case if they refrain from formally associating in it until their role is triggered. Attorneys may also avoid liability if they refrain from lending their names to pleadings or motions about which they know next to nothing.”~(AOB 16)~
Clough asserts that Cole stands for the proposition that only attorneys of record may be held liable for malicious prosecution because only they have the power to control the litigation, and such control is absent when an attorney “was simply the former attorney of record who was substituted out by new attorneys of record who filed a First Amended Complaint.”~(aob 16-17)~
Clough misconstrues Cole. There, certain attorney defendants were attorneys of record in the underlying case, although their role “was limited to participating at trial, should there be a trial.” (Cole, supra, 206 Cal.App.4th at p. 1116.) Cole held that because these attorney defendants “lent their names to all filings in the case, [it] support[ed] an inference that they ‘presented’ these filings to the court and thus initiated and prosecuted [the underlying action] along with the [other] defendants.” (Id. at p. 1118.) Cole added that attorneys may avoid liability for malicious prosecution without having to engage in premature work on a case if they refrain from formally associating in until their role is triggered. (Id. at p. 1119.) Clough’s reliance on Cole is misplaced because Clough actually was counsel of record in the underlying case – he initiated the underlying lawsuit and prosecuted it until he substituted of the case.
Clough further argues that a malicious prosecution action cannot be based upon an original complaint once an amended complaint has been filed.~(aob 17-18)~ This contention is also unpersuasive. “Although the amended complaint supersedes the original as a subsisting pleading, the amended complaint does not obliterate the original complaint nor wholly nullify the fact of its filing or its contents.” (Lerner v. Glickfeld (1960) 187 Cal.App.2d 514, 525 [malicious prosecution].) Clough’s signing and filing the original complaint in the underlying action was not negated by Stroock’s subsequent filing of the first amended complaint.
We now turn to whether Boladian and Westbound met their burden to make a prima facie showing with respect to the discrete elements of the tort of malicious prosecution.
5. In opposing Clough’s special motion to strike, Boladian and Westbound made a prima facie showing with respect to the element of favorable termination.
We begin with the element of favorable termination. “ ‘[F]avorable” termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the merits reflecting on neither innocence of nor responsibility for the alleged misconduct the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.” (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751.)
Here, Boladian and Westbound, in resisting Clough’s special motion to strike their cause of action for malicious prosecution, successfully made a prima facie showing with respect to the essential element of favorable termination. The evidence showed that in the underlying action, on May 2, 2013, Judge Real entered an order dismissing Clinton’s first amended complaint with prejudice. Judge Real found the amended complaint “is completely devoid of facts concerning any specific instance of [copyright] infringement”~(RA 184)~ and similarly, the declaratory relief claim “fails to state a plausible claim for relief and is dismissed with prejudice.”~(RA 185)~ Thus, the May 2013 termination related to the merits of the underlying action, reflecting its lack of merit. (Lackner v. LaCroix, supra, 25 Cal.3d at p. 751.)
Instead of addressing Judge Real’s final decision in the underlying action, Clough focuses on Judge Real’s earlier decision in January 2013, which dismissed the initial complaint for lack of prosecution, with 30 days leave to amend.~(AOB 25, RB 47, AA 33, RA 425)~ Clough asserts the January 2013 dismissal for lack of prosecution did not reflects on the merits of the underlying action.~(AOB 25)~
Clough’s argument is meritless because the favorable termination of the underlying action occurred not in January 2013, but rather, in May 2013, when Judge Real dismissed the action with prejudice, thereby bringing the underlying action to an end.~(RA 181-186)~ The fact that Clough was no longer the attorney of record at the time the underlying action terminated has no bearing on whether Boladian achieved a favorable termination in the underlying action.
For these reasons, we conclude Boladian and Westbound met their burden to establish a reasonable probability of establishing that they achieved a favorable termination in the underlying action.
6. In opposing Clough’s special motion to strike, Boladian and Westbound made a prima facie showing with respect to the malicious prosecution element of lack of probable cause.
a. General principles.
To withstand Clough’s special motion to strike, Boladian and Westbound only had to make a “minimal showing of lack of probable cause.” (Roger Cleveland, supra, 225 Cal.App.4th at p. 687; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 94.) Further, they were not required to establish that every claim in Clinton’s underlying action was unsupported by probable cause. “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. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 55-57.)” (Keeger v. Wanland (2006) 141 Cal.App.4th 826, 832.)
b. Boladian and Westbound met their burden to establish Clough’s lack of probable cause to prosecute the underlying action.
(1) In the underlying action, Clinton asserted ownership of the Westbound Sound Recordings.
In Clinton’s original complaint in the underlying action, Clough alleged in relevant part: “76. Despite the absence of an agreement from [Clinton] for use of the Westbound Sound Recordings . . . , all of the named defendants utilized these masters, authorized others to use the sound recordings, or created and utilized imitation sound recordings,” and did so “without accounting to or paying any royalties to Plaintiff.”~(AA 124)~ Thus, Clough pled that Clinton did not enter into an agreement with Boladian for use of the Westbound Sound Recordings,~(AA 124)~ and sought declaratory relief that Clinton, and not Boladian, “is the owner of all rights relating to the copyright interests and/or renewal term copyrights in and to musical works and sound recordings comprising the Westbound Sound Recordings.”~(AA 126)~
(2) Boladian made a prima facie showing that Clinton lacked probable cause to allege ownership of the Westbound Sound Recordings.
In opposing Clough’s special motion to strike, Boladian made a sufficient prima facie showing that Clough lacked probable cause to allege in the prior case that Clinton owns the Westbound Sound Recordings. Boladian’s evidence showed the following:
In 1972, Clinton entered into a written recording agreement (the 1972 agreement) with Boladian’s record company, Westbound, which provided, inter alia, “11. All master recordings made hereunder, as well as all performances embodied thereon and all phonograph records derived therefrom, together with any property rights therein, whether presently existing or hereafter created, will be the exclusive property of [Westbound] free of any claim whatsoever by Artist or by anyone deriving rights from Artist.”~(RA 55-56)~ (Italics added.)
In 1975, Clinton and Westbound entered into a termination agreement (the 1975 agreement) which ended the 1972 recording agreement. In the 1975 agreement, Clinton “acknowledge[d] and agree[d] that we [Westbound] shall retain in perpetuity the exclusive worldwide right, title and interest in and to all master recordings and the copyrights thereon embodying the performances of the Group [Funkadelic] delivered to us prior to the date of this Agreement and that with respect to these previously delivered master recordings, the same shall be subject to our royalty obligations to you as are contained in the [1972] Agreement.”~(RA 60-61)~ (Italics added.)
On December 19, 2012, Boladian’s counsel, Paul H. Duvall, sent a letter to Clough and to Rozansky at the Stroock firm, which was in the process of substituting in for Clough.~(RA 335)~ Duvall advised that Clinton’s allegations “are not only false, as even a basic investigation would have revealed, but the legal claims are also barred as a matter of law.”~(RA 335)~ Duvall attached copies of the 1972 and 1975 agreements, which reflected Westbound’s ownership of the master recordings and copyrights thereon, and “note[d] that neither of the 1972 or 1975 Agreements are mentioned in any way in the Complaint.”~(RA 336)~ Duvall added that Clinton’s claims were legally barred because in his 1984 bankruptcy, Clinton did not list on his bankruptcy schedules any right to receive royalties from the Westbound Sound Recordings, and “his failure to do so prevents him from asserting the claims he has raised in this action.”~(RA 336)~
In view of the evidence of the 1972 and 1975 agreements, reflecting Boladian’s right, title and interest in the Westbound Sound Recordings, and that Duvall supplied copies of those documents to Clough, Boladian met his burden to show the requisite minimal merit to his claim that Clough lacked probable cause to allege, and/or to continue to prosecute, the claim that Clinton owned the Westbound Sound Recordings.
Clough’s arguments to the contrary are unpersuasive. To show that he acted with probable cause, Clough relies on the contents of the declaration that he filed below in support of the special motion to strike.~(aob 27)~ Clough asserts: he previously represented Clinton successfully in other cases; Clinton appeared lucid and credible during their meetings; Clough reviewed the original complaint before he filed it and determined that the causes of action against Boladian and Westbound were tenable; Clough interviewed an unspecified witness in Michigan who asserted that Boladian had cheated Clinton out of music rights and royalties; a copyright search revealed that some of Clinton’s compositions had been registered to entities associated with a partner of Boladian; and Clough visited record stores and found three DVD’s or CD’s that had Clinton’s work on them.~(AOB 27-28, citing AA 84-93)~
However, these arguments by Clough are unavailing because our inquiry is limited to determining whether Boladian, in resisting the anti-SLAPP motion, established that his malicious prosecution claim had the requisite minimal merit to avoid been stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.) To reiterate, in evaluating a special motion to strike, the court does not weigh evidence or resolve conflicting factual claims; the court accepts the plaintiff’s (Boladian’s) evidence as true, and evaluates the defendant’s (Clough’s) showing only to determine if it defeats the plaintiff’s claim as a matter of law. (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384-385.) Here, Clough’s defense evidence does not defeat Boladian’s claim as a matter of law and therefore does not entitle Clough to a grant of his special motion to strike.
7. In opposing Clough’s special motion to strike, Boladian and Westbound made a prima facie showing with respect to the malicious prosecution element of malice.
a. General principles.
The malice element of the malicious prosecution tort goes to the defendant’s subjective intent in initiating the prior action. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874.) For purposes of a malicious prosecution claim, malice “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 (Sierra Club).) Suits “with the hallmark of an improper purpose” include, but are not necessarily limited to, “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.” ’ ” (Id. at p. 1157.)
“ ‘Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225.) A lack of probable cause may be considered in determining whether the claim was prosecuted with malice, but the lack of probable cause must be supplemented by other, additional evidence. (Ibid.)
(2) Boladian made a prima facie showing that Clough acted with malice, based on Clough’s filing the Peterer declaration in the underlying action.
By way of background, Peterer was a former employee of Bridgeport.~(RA 584)~ In lawsuits filed in the district court in Michigan by the wife of a deceased songwriter, Peterer submitted a declaration asserting various acts of misconduct by Boladian.~(RA 586-587; Peterer accused Boladian of unethical conduct, fraud, racism, etc.; Peterer decl is located at AA 565-573 in B270472)~ The district court in Michigan granted a defense motion for a protective order and sealed the declaration so as to prohibit access thereto by nonparties.~(RA 599)~
Thereafter, that court imposed sanctions, stating “In addition to filing a clearly meritless action, Plaintiffs filed the Declaration of Jane Peterer, containing inflammatory allegations having nothing to do with the issues this court had to decide regarding Defendants’ motion to dismiss. Before filing the Peterer Declaration, Plaintiffs’ counsel sought $1 million from Defendants in exchange for Plaintiffs’ promise not to file it, suggesting it was not filed for its merit, but for an improper purpose. After the court sealed the Peterer declaration, Plaintiffs’ attorney filed his own declaration, summarizing and repeating allegations contained in the Peterer Declaration, in an apparent attempt to circumvent the sealing of the Peterer Declaration. Mr. Reed has been sanctioned . . . for filing the same Reed Declaration in [another case] . . . . Nonetheless, Mr. Reed has not withdrawn his declaration in this matter.”~(RA 611)~
Although the Peterer declaration previously had been sealed, it also became a part of the record in Clinton’s underlying action against Boladian. In July 2012, Clinton filed a motion in the underlying case to extend time to serve Boladian and other defendants, asserting good cause existed for such an extension.~(RA 529-530)~ The motion was supported by Clough’s declaration,~(AA 550)~ and the moving papers also included a copy of the Peterer declaration.~(AA 534, 550, 565, in B270472)~ However, in the 18-page memorandum of points and authorities requesting the extension of time,~(AA 529-549 in B270472)~ the Peterer declaration was mentioned only once, in a footnote~(B270472, AA 534, see fn. 1)~ that did nothing to connect the substance of the Peterer declaration to the need for an extension of time.
On August 20, 2012, Judge Real granted Clinton’s motion to extend time, but also granted Boladian’s request to strike the Peterer declaration, stating the declaration “is largely immaterial and contains scandalous accusations.”~(RA 332)~ Although Judge Real struck the Peterer declaration, Clinton utilized the public filing to post the declaration on his website and publish it in his autobiography.~(RA 589)~
Boladian’s showing that Clough gratuitously filed the inflammatory Peterer declaration in the underlying action, coupled with the showing that Clough continued to prosecute the action even after Duvall made clear to him the unmeritorious nature of Clinton’s claims, is sufficient to make out a prima facie showing with respect to the element of malice. Boladian showed there was at least minimal merit to his claim that Clough brought the underlying action for an improper purpose, such as to deprive Boladian of his rights in the master recordings, or to impugn Boladian’s reputation.
8. Evidentiary issues.
a. Clough’s request for judicial notice.
Clough contends the trial court erred in refusing to take judicial notice of court documents which “would have established that [he] wasn’t the attorney of record after January 4, 2013 when the substitution of attorney [form] was filed with the [district] court” in the underlying action.~(AOB 36)~ Clough asserts the documents would have established that he “ceased being responsible as the attorney of record” after he substituted out of the case on that date.~(ibid)~
The argument is unavailing. As stated in Section 4 of the Discussion, ante, Clough was the attorney of record at the time the underlying action was initiated. Clough’s role in initiating the underlying action, and prosecuting it for 13 months, is sufficient to give rise to his potential liability for malicious prosecution. As indicated, it is enough if the defendant was instrumental in setting the lawsuit in motion and causing the action to proceed. (Jacques Interiors v. Petrak, supra, 188 Cal.App.3d at p. 1372.)
b. Clough’s evidentiary objections to Boladian’s opposing declaration.
Lastly, Clough contends the trial court erred in failing to rule on his written evidentiary objections to Boladian’s opposing declaration.~(aob 37)~ Clough argues: “The trial court should have given [his] Objection . . . to the declaration consideration, and if the declaration failed to establish that Boladian had percipient knowledge upon which a competent declaration could be based, should have stricken the declaration and granted [Clough’s] motion to strike the complaint as a SLAPP suit.”~(aob 37)~ Clough emphasizes the declaration which Boladian filed in opposing Clough’s special motion to strike was essentially the same as the declarations which Boladian filed in response to other anti-SLAPP motions.~(37)~ Clough closes by stating he “renews his objections to the Declaration of Armen Boladian in connection with the Court of Appeal’s de novo review.”~(aob 38)~
However, Clough has not perfected his evidentiary contentions on appeal. Our review is governed by Evidence Code section 353, pertaining to a claim of erroneous admission of evidence. Clough has not framed his argument in accordance with the statute. Moreover, “[i]t is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [‘it is not appropriate to incorporate by reference, into a brief, points and authorities contained in trial court papers, even if such papers are made a part of the appellate record’].” (Soukup, supra, 39 Cal.4th at p. 294.)
Clough’s opening brief lacks a legal argument, with citation to authority, that the admitted evidence should have been excluded on the ground stated, and that it is reasonably probable that a result more favorable to Clough would have been reached in the absence of such error. Therefore, this contention requires no discussion.
















DISPOSITION
With respect to Bridgeport, the order denying Clough’s special motion to strike is reversed, and the matter is remanded with directions to enter a new order granting Clough’s motion. With respect to Boladian and Westbound, the order denying Clough’s special motion to strike is affirmed. The parties shall bear their respective costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




EDMON, P. J.


We concur:




LAVIN, J.




JOHNSON (MICHAEL), J.*