Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BC341627. Conrad Richard Aragon, Judge.
Winston & Strawn and David James Altman for Plaintiff and Appellant.
Taheri Law Group and Payman Taheri for Defendant and Respondent Yevgeniya Lisitsa.
COOPER, P. J.
Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, establishes a process for striking complaints in strategic lawsuits against public participation (SLAPP). SLAPP suits chill the exercise of free speech or the right of freedom to petition. In this appeal, we conclude that notarizing a written instrument is not an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’” as that phrase is used in section 425.16, subdivision (e).
Undesignated statutory citations are to the Code of Civil Procedure.
We reverse the trial court’s order granting respondent Yevgeniya Lisitsa’s special motion to strike and her dismissal from the case. We also reverse the trial court’s attorney fee award in favor of Lisitsa, which was ordered after her dismissal from the case. We dismiss appellant Jack Altman’s purported appeal from the order denying reconsideration, finding that it is not an appealable order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Complaint
Altman filed a first-amended complaint (complaint) alleging a conspiracy to defraud him in a series of real estate transactions. Stanley Azrilyan, Alla Azrilyan, Alex Brik, Marina Brik, Ed Akselrod, the Reliant Group, Alex Katz, Igor Seleznyev, Yevgeniya Lisitsa, Irena Mirov, Metrostate Financial and Real Estate Corporation were named as defendants. Most of the allegations in the complaint are irrelevant to this appeal, which concerns only the propriety of dismissing Yevgeniya Lisitsa from the lawsuit. Therefore, a streamlined summary of the alleged conspiracy is sufficient.
The court sustained Lisitsa’s demurrer to three causes of action in Altman’s original complaint: quiet title, foreclosure, and fraudulent conveyance. The court overruled her demurrer with respect to a cause of action for fraud.
Altman alleged that he lent $100,000 to Ed Akselrod for the purchase and repair of real property identified as the Meadowridge Road property. Altman lent money to Stanley Azrilyan for the purchase of a property identified as the 11th Avenue property and hired Akselrod to oversee the transaction including the issuance and recordation of a deed of trust. Akselrod, Azrilyan, and Azrilyan’s mother implemented a scheme to preclude Altman from sharing in the profits of the Meadowridge Road property.
Altman agreed to lend Azrilyan $225,000 secured by property known as the 11th Avenue property. Akselrod and Azrilyan made false representations with respect to the 11th Avenue property. Altman hired Akselrod to oversee the transaction and ensure the documentation was recorded. No such deed of trust was issued to plaintiff or recorded, and the note had not been paid in full.
In connection with another loan of $269,100, Akselrod and Azrilyan made false representations to Altman. The Meadowridge Road, 11th Avenue, and Waring Avenue properties were listed as collateral for repayment of the loan. Altman hired Akselrod to oversee the transaction including the recordation of the deeds of trust necessary for the transaction. Altman later lent an additional $348,000. Altman was induced to make the loan by false representations. Altman was not informed of the transactions encumbering or conveying the Meadowridge Road property and the Waring Avenue property.
“Akselrod and Stanley Azrilyan told plaintiff that their attorney, defendant Lisitsa, would record a deed of trust to secure this loan [for $348,000]. Plaintiff is informed and believes and thereon alleges that no such deed of trust was ever recorded.” (Capitalization omitted.) In response to questions by Altman and his son, Lisitsa provided a “purported unrecorded deed of trust,” which “was purportedly notarized by Lisitsa, and purported to be a deed of trust from Alla Azrilyan, as trustor, to plaintiff, as beneficiary, encumbering the Meadowridge property (which had already been conveyed) . . . .” (Capitalization omitted.) Altman’s son was told that the conveyances of the Meadowridge Road property and the Waring Avenue property were fraudulent. No payment had been made on the notes other than interest.
Akselrod and Azrilyan were coconspirators in a scheme to defraud Altman. Lisitsa “drafted documentation for these fraudulent loans, including the deeds of trust that should have been recorded, but held them instead of recording them, in furtherance of the scheme. During the course of the scheme, Ed Akselrod solicited employment for Lisitsa at the law firm of plaintiff’s son (David Altman). Plaintiff is informed and believes and thereon alleges that Lisitsa held the deed of trust . . . and did not record it” for a year after she notarized it. (Capitalization omitted.) Lisitsa knew that one of the signatures she notarized was a forgery and she benefited from the fraudulent transactions.
2. Anti-SLAPP Motion
Lisitsa filed a special motion to strike the complaint, citing section 425.16. She argued that she “is nothing but a notary” and her conduct “arises out of or concern[s] official state conduct that is protected under the SLAPP [sic] statute.” She argued that “the notarization of a document was Defendant Lisitsa’s protected speech in the course of discharging her official duties and in the course of State sanctioned proceeding. The act of notarization stated that the subject signature on the deed of trust was done at the hand of Alla Azrylian [sic].”
In a declaration in support of her motion, Lisitsa stated that she was appointed as a notary public by the Secretary of State. “My services were retained strictly as a notary public, to notarize a deed of trust and to record it with the Los Angeles County Recorder’s Office.”
Altman opposed the special motion to strike.
3. Functions of a Notary Public
The Secretary of State appoints and commissions notaries public. (Govt. Code, § 8200.) A notary’s duties include: (1) to accept or reject foreign and inland bills of exchange; (2) to take the acknowledgment of instruments of writing such as powers of attorney and deeds; (3) to take depositions and affidavits on documents to be used in court; and (4) to certify copies of the power of attorney as described in the Probate Code. (Govt. Code, § 8205.) The notary is required to keep a journal of “all official acts performed as a notary public” and keep an official seal and must use the seal when taking and certifying acknowledgments or proof of instruments. (Govt. Code,§§ 8206, 8207; Civ. Code, § 1193.)
“The certificate of acknowledgement of an instrument executed on behalf of an incorporated or unincorporated entity by a duly authorized person in the form specified in [Civil Code] Section 1189 shall be prima facie evidence that the instrument is the duly authorized act of the entity named in the instrument and shall be conclusive evidence thereof in favor of any good faith purchaser, lessee, or encumbrance. (Civ. Code, § 1190.) Prima facie evidence establishes a rebuttable presumption. (Evid. Code, § 602.) A notary is liable for “official misconduct or neglect.” (Govt. Code, § 8214; Civ. Code, § 1189.)
4. Trial Court Orders
The trial court granted Lisitsa’s motion. The court found that if it were established conclusively that the document was forged, section 425.16 would not apply. Because there was no proof of a forgery, section 425.16 was applicable. The court further concluded that notarizing the signature and attesting to the identity of Ms. Azrilyan were writings made in an official proceeding authorized by law. It concluded that because the seal of a notary is the subject of judicial notice, it is an official act of judicial nature and is therefore protected under the first part of section 425.16, subdivision (e). In deciding that Altman would not prevail on the merits, the court stated that “[b]ecause . . . Lisitsa’s notarizing of the trust deed was an official act of judicial consequence, even if ministerial in nature, she is entitled to absolute immunity under Civil Code § 47, as engaging in a protected communication in a judicial proceeding.”
Subsequently, the court denied Altman’s motion for reconsideration. In a document entitled “judgment” dated December 19, 2006, the court awarded Lisitsa $10,500 in attorney fees.
Altman appealed from the order dismissing Lisitsa and from the denial of his motion for reconsideration. Lisitsa cross-appealed from the judgment awarding her only a fraction of the attorney fees she sought.
DISCUSSION
We begin with the threshold issue of the appealability of the orders identified in Altman’s notice of appeal. We then provide general background as to the contents and interpretation of the anti-SLAPP statute, section 425.16, upon which Lisitsa’s special motion to strike was based. Next, because Lisitsa argues that her conduct as a notary constitutes an “official proceeding authorized by law,” we consider the meaning of that phrase as it is used in section 425.16. Once the phrase is defined, we apply it to this case and conclude that Lisitsa’s conduct, as alleged in the complaint, does not fall within the ambit of section 425.16. We end with a discussion of Lisitsa’s cross-appeal, holding that the attorney fee award must be reversed.
I. Appealability
Lisitsa challenges the timeliness of Altman’s appeal from the denial of the anti-SLAPP motion and the appropriateness of the appeal from the order denying reconsideration. To analyze these questions, additional factual background is required.
A. Factual Background
The order granting the special motion to strike was entered August 18, 2006. The order directed counsel to submit a proposed order of dismissal. Notice of ruling was given August 19, 2006, and filed August 22, 2006. That notice does not include a file stamped copy of the order. A motion for reconsideration was filed on September 5, 2006. (We accept the parties’ agreement that the motion for reconsideration was filed on this date, but the record does not include a file-stamped copy of that document.)
An order dismissing the case against Yevgeniya Lisitsa was entered September 12, 2006. Notice of that order was sent September 22, 2006, and filed September 25, 2006. That notice is entitled “notice of order” and contains a signed order. The motion for reconsideration was denied November 8, 2006. The notice of appeal was filed November 13, 2006.
B. Appeal From the Order of Dismissal
California Rules of Court, rule 8.104(a) provides:
“Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
“(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
“(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or
“(3) 180 days after entry of judgment.”
The term “judgment” includes an appealable order if the appeal is from an appealable order. (Cal. Rules of Court, rule 8.104(f).)
Citations to the rules are to the California Rules of Court.
The order granting the special motion to strike filed August 18, 2006, was immediately appealable. (Russell v. Foglio (2008) 160 Cal.App.4th 653, 659; §§ 425.16, subd. (i); 904.1, subd. (a)(13).) Therefore, Altman would have 60 days to appeal from a document entitled “Notice of Entry” or a filed stamped copy of the order. However, neither the clerk nor respondent filed such a document. The clerk did not mail anything to Altman. Respondent served a “notice of ruling,” not a “notice of entry.” The distinction is critical. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 903.) In addition, the order attached to the document entitled “notice of ruling” was not file stamped. (Id. at p. 902.) The notice of appeal from the August 18th order therefore had to be filed within 180 days after the order was entered. (In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 685.)
However, the appeal is not from the August 18th order; it is from the September 12th order of dismissal. Rule 8.104(d)(2) provides: “The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order.” Where a subsequently prepared written order is filed, that order sets the clock for purposes of determining the timeliness of a notice of appeal. (See In re Marriage of Taschen, supra,134 Cal.App.4th at p. 686.)
The court directed an order of dismissal, not a written order granting the anti-SLAPP motion to strike, thereby creating an ambiguity as to the applicability of rule 8.104(d)(2). We conclude that the rule should apply in this circumstance because of the strong policy of granting the right to appeal “in doubtful cases ‘“when such can be accomplished without doing violence to applicable rules.”’” (Alan v. American Honda Motor Co., Inc., supra,40 Cal.4th at p. 901.) The August 18th order calls for the preparation of a written order even though it is not identical and the dismissal order expressly references the ruling on the special motion to strike pursuant to section 425.16.
The clerk did not mail that order to Altman and respondent did not file a document entitled “notice of entry” of that order. Therefore, Altman had 180 days from the date the order of dismissal was filed to file a notice of appeal. The appeal from the September 12th order therefore is well within the time limit. Because the appeal is timely under rule 8.104, we need not apply rule 8.108, which in certain circumstances, extends the time to appeal following a motion for reconsideration.
C. Appeal From The Order Denying Reconsideration
Altman also purports to appeal from the order denying his motion for reconsideration. There is a split of authority as to whether an order denying a motion for reconsideration is appealable. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 968.) We agree with those cases that have held such an order is not appealable because (1) it is not listed in section 904.1 as an appealable order; (2) it would allow two appeals from every decision; and (3) a nonappealable order or judgment would be made appealable. (See, e.g., Morton v. Wagner, at p. 968; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242; Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1161, overruled on another ground in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607.)
II. Background of Section 425.16
The purpose of section 425.16 is as follows: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.” (§ 425.16, subd. (a).)
Section 425.16, subdivision (b)(1) provides: “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 or 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.” “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics omitted.) Lisitsa does not argue that the gravamen of the fraud action arises from the right to free speech or the right to petition. Her argument instead is based on the allegations that she acted as a notary public.
“‘[A]ct in furtherance of a person’s right of petition or free speech under the United States or California Constitution 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 with an issue of public interest; (4) or 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).)
Lisitsa relies only on the first two parts of section 425.16, subdivisions (e), arguing that her statement was made during or in connection with an official proceeding. When enacting section 425.16, the Legislature “‘equated a public issue with the authorized official proceeding to which it connects.’” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117.) “‘Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.’” (Id. at p. 1116.) Section 425.16 applies to all participants in an official proceeding, including the decision maker. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1399.)
The defendant carries the threshold burden of showing the challenged cause of action arises from an activity protected under the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We apply a de novo standard of review. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
III. Meaning of “Official Proceeding Authorized By Law”
Pursuant to section 425.16, official proceedings include the filing of an SEC complaint (Computer Xpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1009) and an investigative audit by the State Auditor (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1049). Even though the investigation is closed to the public it is “an authorized, public proceeding because it is government – sponsored and provided for by statute.” (Ibid.) Statutory hearing procedures including one before the Regents of the University of California constitute official proceedings authorized by law. (Vergos v. McNeal, supra, 146 Cal.App.4th at p. 1396.) In contrast, a sheriff’s auction is not an official proceeding authorized by law. (Blackburn v. Brady (2004) 116 Cal.App.4th 670, 677.)
Our Supreme Court construed the meaning of “official proceeding authorized by law” in considering whether a hospital peer review proceeding fell into this category. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199 (Kibler).) The court concluded that a peer review procedure qualified because (1) the procedure is required under Business and Professions Code section 805 et seq., and (2) the hospital’s decision is subject to judicial review by administrative mandate. (Kibler, at pp. 199-200.) “Peer review is the process by which a committee comprised of licensed medical personnel at a hospital ‘evaluate[s] physicians applying for staff privileges, establish[es] standards and procedures for patient care, assess[es] the performance of physicians currently on staff,’ and reviews other matters critical to the hospital’s functioning.” (Id. at p. 199.) By subjecting the decisions to judicial review, “the Legislature has accorded a hospital’s peer review decisions a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate.” (Id. at p. 200.)
In Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, the court held a private company’s sexual harassment grievance system is not an official proceeding authorized by law. The case, however, was decided before Kibler, and the statutory interpretation conflicts with Kibler. (Compare Olaes, at p. 1507 with Kibler, supra, 39 Cal.4th at pp. 201-203.)
Kibler recently was applied to determine if a nonjudicial foreclosure sale constitutes an official proceeding authorized by law. (Garretson v. Post (2007) 156 Cal.App.4th 1508.) “‘In a nonjudicial foreclosure, also known as a ‘trustee’s sale,” the trustee exercises the power of sale given by the deed of trust. [Citation.] Nonjudicial foreclosure is less expensive and more quickly concluded than judicial foreclosure, since there is no oversight by a court, “[n]either appraisal nor judicial determination of fair value is required,” and the debtor has no post sale right of redemption. [Citation.] However, the creditor may not seek a deficiency judgment. . . .’ [Citation.]” (Id. at p. 1516.) Civil Code section 2924 through 2924k codify a framework for regulating nonjudicial foreclosure sales. (Garretson v. Post, at p. 1516.) “‘A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender. [Citation.]’ [Citation.]” (Ibid.)
The court held the nonjudicial foreclosure sale was not an official proceeding authorized by law. “[D]efendant and plaintiff engaged in business dealings or transactions of a contractual nature, leading to defendant initiating private nonjudicial foreclosure proceedings. . . .” (Garretson v. Post, supra, 156 Cal.App.4th at p. 1520.) It is not linked to a judicial proceeding but provides a private alternative. (Id. at p. 1521.)
IV. Section 425.16 Does Not Apply to Lisitsa’s Alleged Conduct
Altman alleged the following conduct with respect to Lisitsa: (1) drafting documentation for fraudulent loans; (2) failing to record a deed of trust; and (3) notarizing a fraudulent signature. Lisitsa argues that her conduct of notarizing a written instrument is quasi-judicial and that the other conduct is related and should fall within the protection of the anti-SLAPP statute. For support, she cites out of state authority (much of it very old) describing in other contexts certain conduct of a notary as quasi-judicial.
Lisitsa relies on authority from North Carolina, New Jersey, Pennsylvania, and Virginia. (Nelson v. Comer ( N.C. Ct.App. 1974) 205 S.E.2d 537, 538 [“A public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence”]; Motor Credit Co. v. Tremper (N.J. 1938) 1 A.2d 301, 302 [“the tendency is to regard the taking of an acknowledgement as a judicial, or at least a quasi-judicial, act”]; Commonwealth v. Haines (Pa. 1881) 97 Pa. 228, 233 [“Whatever officer is authorized to take the acknowledgment, to him is given a judicial duty, and when he performs it it becomes a judicial act, and has the effect of a record”]; Yates v. Ley (Va. 1917) 92 S.E. 837, 839 [“the taking of an acknowledgment is a judicial act”]). Lisitsa also cites to People v. Bartels (Ill. 1891) 27 N.E. 1091, but that case holds just the opposite: “It is difficult to see how the act of taking such an acknowledgement as was taken by the clerk of the Probate Court in this case can be regarded as in any sense judicial in its character.” (Id. at p. 1092.)
“The essential characteristic of the quasi-judicial body is its fact finding power and the concomitant requirement to make a determination or adjudication of fact in connection with matters properly submitted to it after a hearing.” (Le Strange v. City of Berkeley (1962) 210 Cal.App.2d 313, 323.) When notarizing a written instrument, a notary does not engage in the adjudication of a fact after a hearing. Notarizing a signature is the acknowledgement of the instrument, the act of determining that the person making the acknowledgment is the individual described in the instrument. (See Civ. Code, § 1185.) In receiving proof or acknowledgment of an instrument, a notary must personally know or receive “satisfactory evidence” that the person making the acknowledgement is the individual described in the instrument. (Id., subds. (a) & (b).) Means of demonstrating “satisfactory evidence” are enumerated in Civil Code section 1185, affording the notary no discretion. Notaries’ responsibility is to obtain “satisfactory evidence,” the failure to fulfill this duty results in a potential civil penalty. (Id., subd. (b)(1)(B).)
Simply determining whether a person presents satisfactory evidence such as a driver’s license issued by the California Department of Motor Vehicles is not an adjudication of fact in connection with matters properly submitted after a hearing. Under California law, the acknowledgment of the execution of a written instrument is a ministerial act. (Vanderhoof v. Prudential Sav. & Loan Assn. (1975) 46 Cal.App.3d 507, 511.) The United States Supreme Court similarly has described the duties of a notary public as “clerical and ministerial.” (Bernal v. Fainter (1984) 467 U.S. 216, 225.) Taking the acknowledgment of Alla Azrilyan that she was the person who executed the document and certifying it is not a quasi-judicial proceeding as Lisitsa argues and is not an official proceeding authorized by law. It is “devoid of the exercise of discretion” and is a ministerial act. (Vanderhoof v. Prudential Sav. & Loan Assn., supra, at p. 511.) Even though the procedure for taking an acknowledgment of a written instrument is governed by statutes, it is more akin to a nonjudicial foreclosure sale than to a hospital peer review hearing. It does not require the exercise of discretion or the adjudication of a fact. It does not involve a hearing like the hospital peer review procedure. Lisitsa’s argument based on other state’s law discussing the conduct of a notary in other contexts is not persuasive in the context of applying the California anti-SLAPP statute.
We also reject the trial court’s conclusion that because the seal of a notary is subject to judicial notice, the act of the notary is “an official act of judicial nature” and is therefore within the ambit of the first part of section 425.16, subdivision (e). Assuming such judicial notice is proper, it does not follow that the presentation of a document to a notary constitutes a judicial proceeding. A court is required to take judicial notice of the Constitution and statutes of the State of California and the United States, but that does not make the act of passing legislation or modifying the Constitution into official acts of judicial nature. (Evid. Code, § 451, subd. (a).) The court also is required to take judicial notice of “[f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” (Id., subd. (f).) Each such fact is not an official act of judicial nature even though it is subject to judicial notice. This case is not like Kibler where the proceeding (i.e., notarizing a written instrument) was subject to judicial review by means of administrative mandate.
Lisitsa does not argue that drafting loan documents or recording a deed involve official proceedings. Her claim that those allegations should be stricken is entirely dependent on finding that her conduct notarizing the document must be stricken. Because we conclude that her conduct in notarizing a written instrument does not involve a judicial proceeding, we need not consider whether other conduct falls within the penumbra of that protected conduct.
So far, we have assumed that Lisitsa’s conduct is not illegal. Speech that is not constitutionally protected is not protected by section 425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 317.) If a defendant brings an anti-SLAPP motion and “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley v. Mauro, at p. 320.) Forgery is a crime. (Pen. Code, § 470.) But here, there has been no concession, and the trial court expressly concluded that the evidence did not support Altman’s version of events. Therefore, we consider only Lisitsa’s conduct of notarizing a deed, without regard to Altman’s allegation that it was a forgery.
Because Lisitsa does not satisfy her initial burden of showing that her alleged conduct was an act in furtherance of her right to petition or free speech, we need not consider whether Altman met his burden of showing a probability of prevailing on the merits and express no opinion on that point. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) We need not decide the applicability of section 47 because even if Lisitsa’s conduct was privileged under section 47, that is relevant to the second prong, i.e., whether Altman has a probability of prevailing, and Lisitsa has failed to establish her threshold burden.
Because the trial court order must be reversed, we need not consider Altman’s alternative arguments in support of that result or whether his arguments are cognizable on appeal, an issue raised by Lisitsa.
The Supreme Court has held that section 425.16 and section 47 are not coextensive. (Flatley v. Mauro, supra, 39 Cal.4th at p. 325; Kibler, supra, 39 Cal.4th at pp. 201-202.)
V. The Attorney Fee Award Must Be Reversed
On November 27, 2006, Lisitsa appealed from the order of attorney fees on the anti-SLAPP motion. A minute order dated November 8, 2006, indicates that the court awarded $10,500 in fees to Lisitsa after she had claimed $83,250. Judgment was entered December 19, 2006, awarding Lisitsa attorney fees.
An interlocutory order granting or denying attorney fees following a successful anti-SLAPP motion generally is not appealable. (Doe v. Luster (2006) 145 Cal.App.4th 139, 146-147.) However, in this case the order constitutes a post-judgment order following the judgment of dismissal and is therefore appealable. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [“‘order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment’”].) An order that leaves no issue remaining to be determined as to one of the parties, such as the dismissal of Lisitsa, is considered final and appealable. (Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002) 97 Cal.App.4th 1039, 1046, fn. 3; Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 430.) A post-judgment order is appealable under section 904.1, subdivision (a)(2).
Lisitsa argues in her cross-appeal that the trial court should have granted her additional fees. Because Lisitsa is no longer the prevailing party, the order awarding her attorney fees must be reversed. (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1401.)
Lisitsa’s motion for judicial notice of practices of Department 49 of the Los Angeles Superior Court is denied. Because we conclude the attorney fee award must be reversed, her request, which was part of her effort to show she was entitled to additional fees, is not relevant.
DISPOSITION
The purported appeal from the order denying reconsideration is dismissed. The order granting the special motion to strike is reversed with directions to enter an order denying Lisitsa’s special motion to strike. The judgment awarding Lisitsa attorney fees is reversed. Each party to bear his or her costs on appeal.
We concur FLIER, J., BIGELOW, J.