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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy represented 12 limited partners of a limited partnership that has a 99-year ground lease for a mobilehome park in Orange County. In the underlying action, the opposing parties, the fee simple owners of the property, sued the limited partners for breach of the lease. The limited partners were subsequently dismissed from that lawsuit and filed this action for malicious prosecution against the property owners and their two attorneys. The property owners and their co-defendant attorneys filed anti-SLAPP motions which were denied by the trial court. The Court of Appeal affirmed the denial of the anti-SLAPP motion in a published decision.

In an important procedural ruling on an issue of first impression for anti-SLAPP motions, the Court of Appeal held that the trial court did not abuse its discretion in excluding evidence submitted by the defendants for their first time with their reply papers. The court held that the “general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” The Court of Appeal also held that there was no probable cause to sue the limited partners for breach of the lease because the limited partners were statutorily immune from partnership obligations under Corporations Code section 15903.03, subd. (a).

The court further held that there was “overwhelming” evidence that the action was initiated against the limited partners with malice. “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.” Also, in a second issue of first impression, the Court of Appeal rejected the argument that one of the attorney defendants should be immune from malicious prosecution liability simply because she was an associate in a law firm following a partner’s orders. “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.” This aspect of the Court of Appeal’s ruling has already drawn media attention.