Opinion
D073898 D074381
12-12-2019
RIMMA BREEZE et al., Plaintiffs and Appellants, v. MARGARET BAER et al., Defendants and Respondents.
Peretz & Associates, Yosef Peretz and Ruth L. Israely for Plaintiffs and Appellants. Pettit Kohn Ingrassia Lutz & Dolin and Douglas A. Pettit for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00031570-CU-NP-CTL) CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed and remanded with directions. Peretz & Associates, Yosef Peretz and Ruth L. Israely for Plaintiffs and Appellants. Pettit Kohn Ingrassia Lutz & Dolin and Douglas A. Pettit for Defendants and Respondents.
I.
INTRODUCTION
Rimma Breeze (Rimma) and her husband, Colin Breeze (Colin), and Breeze Ventures Management, LLC (BVM) (collectively "appellants") brought this action containing a single cause of action for malicious prosecution against Margaret Baer, The Evans School, Inc. (School), Attorney Michael D. Scully, and Gordon, Rees, Scully & Mansukhani (Gordon Rees) (collectively "respondents"). The malicious prosecution cause of action was based on respondents' prosecution of a prior action in which respondents alleged a violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030) (CFAA) against appellants.
We refer to the individual appellants by their first names for purposes of clarity.
According to appellants, BVM is "owned and controlled" by Colin.
Attorney Scully is a partner at Gordon Rees. We refer to Scully and Gordon Rees collectively as "Attorney Defendants."
Respondents filed a special motion to strike pursuant to the anti-SLAPP statute, (anti-SLAPP motion). Among other arguments, respondents claimed that appellants could not demonstrate a probability of prevailing on their malicious prosecution cause of action because appellants would not be able to establish a required element of that cause of action, i.e., that respondents lacked probable cause to prosecute the CFAA cause of action in the underlying litigation. In support of this contention, respondents stated that the trial court in the litigation underlying the malicious prosecution action had granted a preliminary injunction in their favor on the CFAA cause of action. Respondents argued that the issuance of the injunction established, as a matter of law, that they had probable cause to prosecute the CFAA cause of action, pursuant to the interim adverse judgment rule. (See e.g., Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 359 (Fleishman) [stating that pursuant to interim adverse judgment rule "the issuance of the preliminary injunction conclusively establishes that [the malicious prosecution defendants'] entire action was brought with probable cause"].)
"SLAPP" stands for Strategic Lawsuit Against Public Participation. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
Specifically, Attorney Scully filed the motion, and the other respondents joined in the motion. For the sake of simplicity, we refer to the motion as respondents' anti-SLAPP motion.
The trial court granted respondents' anti-SLAPP motion and struck appellants' complaint in its entirety. The trial court subsequently granted respondents' motion for attorney fees, in part, and awarded respondents $44,890 in attorney fees.
Appellants appeal from the trial court's order granting respondents' anti-SLAPP motion, and its order awarding attorney fees. We reject appellants' claims and affirm the orders. Respondents request that we award them attorney fees incurred on appeal. We remand the case to the trial court to consider respondents' request for attorney fees incurred on appeal.
For reasons that we explain in footnote 15, post, we construe appellants' notices of appeal as challenging these two orders. Appellants also contend that the trial court erred in denying their application for an order shortening time to file a motion to compel that they filed in connection with their anti-SLAPP motion. We reject this claim for reasons stated in part III.B, post.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants filed an appellants' appendix that is deficient in that it is not organized chronologically (Cal. Rules of Court, rule 8.144(b)(2)(C) [specifying format for clerk's transcripts and stating, "[t]he contents must be arranged chronologically"]; Cal. Rules of Court, rule 8.124(d)(1) ["An appendix must comply with the requirements of rule 8.144 for a clerk's transcript"].) In addition, appellants' citations to the appendix are deficient in that they do not cite to the volume and page number, as is required. (Cal. Rules of Court, rule 8.204(a)(1)(c) [stating that each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) Appellants' citations to tabs in the appellants' appendix is improper and prevented this court from locating relevant portions of the record expeditiously since the record is electronic.
Finally, and most importantly, as discussed throughout the text, appellants make numerous assertions with respect to their arguments on appeal without providing proper supporting citations to the record.
A. The underlying dispute
Rimma and Colin are parents of two children who attended the School. Baer is the owner and headmistress of the School.
Beginning in April 2012, Rimma performed information and technology projects for the School. Rimma and Baer disagreed with respect to the terms under which Rimma had agreed to perform such services. Rimma claimed that she had agreed to provide such services in exchange for reduced tuition for her children. Baer stated that there was never "a clear agreement that [Rimma] would be compensated for her time."
In July 2013, Baer met with Rimma and informed her that the School "intended to change directions with [its] information technology program."
On August 1, 2013, Baer sent Rimma an e-mail in which she said, "I appreciate the time and effort you have put in to initiate our technology program and maintain our website, but I certainly did not anticipate that it would be so expensive." Baer stated, "I cannot afford to continue this way." Baer continued, "In order to make a speedy and seamless transition, I am requesting that you furnish me with the files and passwords this week."
It is not clear from the record on appeal what Baer was referring to when she made the comment about Rimma's services being "so expensive." However, her comment suggests that a dollar figure had been discussed between the parties.
By letter dated August 9, the School demanded that Rimma and Colin pay $51,900 in tuition for their children for the previous two years at the School.
The amount corresponded to the tuition for two children for the 2012-2013 year, and for one child during the 2011-2012 school year.
On or about August 12, Breeze IT Consulting submitted an invoice to the School requesting $130,036.71 for Rimma's services. The invoice requested that payment be made to BVM. B. Evidence pertaining to alleged CFAA violations
As stated in footnote 2, it is undisputed that BVM is "owned and controlled" by Colin.
According to appellants, in order for respondents to prove their CFAA cause of action, respondents were required to demonstrate that appellants accessed a protected computer without authorization and caused $5,000 in damage.
The School possessed evidence that, after she received the August 1 e-mail quoted in part II.A, ante, Rimma installed a program in the School's computer system that allowed her to forward e-mails from the School's account to an "admin" account to which she had access, and failed to return files and passwords to the School, which the School needed to manage its information technology systems.
The School also possessed evidence that it had paid $5,000 to an employee for her efforts in helping the School to regain control of its informational technology systems. C. The prior actions
On August 27, 2013, Baer brought a complaint in state court against appellants for breach of contract, conversion, and violation of the CFAA ("School Litigation"). On September 11, appellants removed the case to federal court.
On September 17, Rimma filed a separate action in state court against Baer ("Breeze Litigation"). Baer filed a cross-complaint against appellants in the Breeze Litigation, alleging causes of action that she also brought in the School Litigation, including the CFAA cause of action.
As discussed in detail in part III.A.2.b.i, post, Baer obtained a preliminary injunction in the Breeze Litigation on her CFAA cause of action on October 3, 2013. The injunction ordered Rimma to take various actions in order to permit Baer to secure and utilize the School's information technology systems.
On October 8, 2013, appellants brought a motion to dismiss the CFAA cause of action in the School Litigation. On November 8, the federal district court in the School Litigation granted appellants' unopposed motion to dismiss the CFAA cause of action and remanded the matter back to state court for adjudication of the remaining causes of action.
In 2016, a trial court dismissed the School Litigation in its entirety.
Baer and School filed a first amended cross-complaint in May 2014 against appellants in the Breeze Litigation that added a fraud cause of action to the causes of action alleged in the cross-complaint. In November 2014, after a jury trial, the trial court entered a judgment in the Breeze Litigation. The jury found in favor of appellants on Baer and School's CFAA cause of action. The judgment also awarded Rimma a net recovery of $44,086 based on the jury's verdicts on the other causes of action in the action. D. This action
Scully and Gordon Reese represented Baer and School throughout the Breeze Litigation and the School Litigation.
1. The complaint
In August 2017, appellants—Rimma, Colin, and BVM,—filed this action against respondents—Baer, School, Scully, and Gordon Rees. The complaint contained a single malicious prosecution cause of action. Appellants claimed that respondents "brought a meritless CFAA cause of action" against them in the Breeze Litigation. Appellants alleged that the CFAA cause of action had terminated in their favor, and that respondents lacked probable cause and had acted maliciously in bringing the CFAA cause of action.
2. The anti-SLAPP motion
a. Respondents' anti-SLAPP motion
Respondents filed an anti-SLAPP motion. In their supporting brief, respondents argued that appellants' malicious prosecution cause of action arose from protected activity, specifically, respondents' act of filing of a lawsuit. Respondents argued that appellants would not be able to demonstrate a probability of prevailing on their malicious prosecution cause of action because appellants would not be able to establish that respondents prosecuted the CFAA cause of action in the Breeze Litigation without probable cause and with malice, as is required. Respondents offered several arguments in support of their contention that they had probable cause to prosecute the CFAA cause of action, including that they had secured numerous "interim victories" in the Breeze Litigation. For example, respondents stated that they obtained a preliminary injunction in their favor in the Breeze Litigation and argued that the issuance of the preliminary injunction established, as a matter of law, that respondents had probable cause to prosecute the CFAA cause of action.
Respondents supported their motion with declarations from two Gordon Rees attorneys, Attorney Ian Williamson and Attorney Scully, who represented Baer and the School in the School Litigation and in the Breeze Litigation, as well as numerous exhibits, the bulk of which were documents from the School Litigation and the Breeze Litigation.
b. The opposition
Appellants filed an opposition in which they claimed that respondents lacked probable cause to bring the CFAA cause of action in the Breeze Litigation. Appellants maintained that the issuance of a preliminary injunction in the Breeze Litigation did not establish probable cause because it had been obtained by way of "perjured declarations." Appellants also argued that respondents had acted with malice in initiating and maintaining the CFAA cause of action in the Breeze Litigation.
Appellants supported their opposition with declarations from Rimma, Colin, and their counsel, and with numerous documents, including exhibits from the Breeze Litigation, and various trial and deposition transcripts.
c. The trial court's ruling
After further briefing, and a hearing, the trial court entered an order granting respondents' anti-SLAPP motion on January 26, 2018. The trial court ruled that respondents had demonstrated that the malicious prosecution cause of action arose out of protected activity. The court further concluded that appellants had not established a probability of prevailing on their malicious prosecution cause of action. The trial court determined that appellants had failed to carry their burden to make a prima facie showing that respondents lacked probable cause to bring and maintain the CFAA cause of action in the Breeze Litigation. The court also ruled that appellants had failed to make a prima facie showing that respondents had prosecuted the CFAA cause of action with malice.
3. The judgment and amended judgment
On February 8, 2018, the trial court entered a judgment of dismissal in favor of respondents. The judgment stated that respondents were entitled to recover attorney fees and costs.
On April 20, the trial court amended its judgment to award respondents $44,890 in attorney fees in accordance with its order of the same day. (See part II.D.4, post.)
4. Respondents' motion for attorney fees
Respondents filed a motion for attorney fees together with supporting documentation. Respondents sought $50,190 in attorney fees. Appellants filed an opposition to the motion, along with several supporting exhibits. After additional briefing, and a hearing, the trial court granted the motion in part, and awarded respondents $44,890 in attorney fees.
5. The appeal
Appellants filed two notices of appeal, which we broadly construe as appeals from the January 26, 2018 order granting the anti-SLAPP motion and the April 20, 2018 order awarding respondents attorney fees.
On March 27, 2018, appellants filed a notice of appeal indicating that appellants were appealing from a "judgment or order" dated February 8, 2018. The notice of appeal also indicated that appellants intended to appeal from "[a]n order or judgment under . . . § 904.1(a)(3)-(13)." Appellants attached the February 8 judgment to their notice of appeal.
On June 21, 2018, appellants filed a second notice of appeal from the April 20, 2018 amended judgment that incorporated the trial court's April 20, 2018 order granting respondents attorney fees and costs. Appellants attached both the April 20 amended judgment and the April 20 attorney fee order to their second notice of appeal.
An order granting an antiSLAPP motion is an appealable order pursuant to section 904.1, subdivision (a)(13). An order awarding attorney fees entered after an appealable order akin to a final judgment is appealable as a postjudgment order pursuant to 904.1, subdivision (a)(2). (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 251.)
The trial court entered an appealable order granting respondents' antiSLAPP motion on January 26, 2018. Respondents served notice of entry of that order on February 2, 2018. The court entered a second appealable order on April 20, 2018, awarding respondents attorney fees. Respondents served notice of entry of that order on April 30, 2018.
Since an order granting or denying an antiSLAPP motion is independently appealable (§§ 425.16, subd. (i), 904.1, subd. (a)(13)), we are ordinarily "foreclosed from reviewing that order on appeal from the judgment." (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247, italics added.) Thus, we must consider whether appellants have properly appealed from the January 26 order granting respondents' antiSLAPP motion and from the April 20 order awarding attorney fees.
With respect to that issue, we are required to construe a notice of appeal liberally. (Cal. Rules of Court, rule 8.104(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59 ["notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced"].) Notwithstanding that appellants' notices of appeal refer to the judgment and amended judgment, it is reasonably clear that appellants intended to include a challenge to both the January 26, 2018 order granting respondents' antiSLAPP motion and the April 20, 2018 order awarding attorney fees. Since both appeals were timely as to those orders and respondents have not claimed any prejudice, we construe appellants' appeals as challenging the January 26, 2018 order granting the antiSLAPP motion and the April 20, 2018 order awarding respondents attorney fees.
We granted the parties' stipulated motion to consolidate the appeals.
III.
DISCUSSION
A. Appellants have not demonstrated that the trial court erred in granting respondents' anti-SLAPP motion
Appellants contend that the trial court erred in granting respondents' anti-SLAPP motion. In support of this contention, appellants argue that the trial court erred in concluding that they failed to establish a probability of prevailing on their malicious prosecution cause of action. Specifically, appellants maintain that the trial court erred in determining that they failed to demonstrate that they could establish that respondents lacked probable cause in initiating and maintaining the CFAA cause of action in the Breeze Litigation.
"We review de novo the grant or denial of an anti-SLAPP motion." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
1. Governing law
a. Anti-SLAPP statute
Section 425.16 permits a defendant to file a "[s]pecial motion to strike" [i.e., anti-SLAPP motion] when a plaintiff brings a claim against the defendant "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." (§ 425.16, subd. (b)(1).)
"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." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The California Supreme Court has " 'described th[e] second step as a "summary-judgment-like procedure." [Citation.]' " (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).) As the Sweetwater court explained:
" '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.]" (Ibid.)
b. Malicious prosecution
" 'The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action.' [Citation.] The tort consists of three elements. The underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775-776 (Parrish).)
The Parrish court explained that the meaning of the lack of probable cause element as follows:
" '[T]he probable cause element calls on the trial court to make an objective determination of the "reasonableness" of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable,' as opposed to whether the litigant subjectively believed the claim was tenable. [Citation.] A claim is unsupported by probable cause only if ' " 'any reasonable attorney would agree [that it is] totally and completely without merit.' " ' [Citations.] 'This rather lenient standard for bringing a civil action reflects "the important public policy of avoiding the chilling of novel or debatable legal
claims." ' [Citation.] The standard safeguards the right of both attorneys and their clients ' " 'to present issues that are arguably correct, even if it is extremely unlikely that they will win.' " ' [Citations.]" (Parrish, supra, 3 Cal.5th at p. 776, italics added.)
The Parrish court also explained that "California courts have long embraced the so-called interim adverse judgment rule, under which 'a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court.' " (Parrish, supra, 3 Cal.5th at p. 776.) The interim adverse judgment rule is based on the notion that " '[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.' " (Ibid.)
A preliminary injunction is among the interim adverse judgments that preclude a malicious prosecution plaintiff from demonstrating a lack of probable cause, unless the injunction was obtained by perjury or fraud. (See Fleishman, supra, 102 Cal.App.4th at p. 358; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1022 (Paiva) ["the granting of the preliminary injunction in favor of [malicious prosecution defendants] conclusively established that [they] had probable cause to initiate the prior suit"].)
In explaining the basis for its conclusion that a preliminary injunction demonstrates the existence of probable cause for causes of action "reasonably related" to the injunction (Fleishman, supra, 102 Cal.App.4th at p. 358), the Fleishman court reasoned, "Before issuing a preliminary injunction, the trial court must 'carefully weigh the evidence and decide whether the facts require[ ] such relief.' " (Id. at p 356.) Further, the Fleishman court noted that a preliminary injunction may issue only upon "substantiated legally cognizable claims." (Id. at p. 357.) Thus, a trial court's issuance of a preliminary injunction establishes probable cause to bring causes of action reasonably related to the injunction, even if the malicious prosecution plaintiff was erroneously precluded from presenting evidence against the issuance of the injunction. (Id. at p. 356 [rejecting malicious prosecution plaintiff's claim that preliminary injunction could not serve as interim adverse judgment because "the trial court erroneously precluded him from presenting evidence at the hearing [on the injunction].")
In their reply brief, appellants state that Fleishman stands for the proposition that an "injunction only establishes probable cause if the issuing court conducted a full and fair evidentiary hearing on the merits at which both parties presented evidence." Appellants misread the case. In Fleishman, the malicious prosecution plaintiff argued that "the issuance of a preliminary injunction [in the underlying action] conclusively establishes probable cause only if the trial court has conducted 'a full and fair evidentiary hearing on the merits.' " (Fleishman, supra, 102 Cal.App.4th at p. 356.) The Fleishman court rejected this argument for the reasons stated in the text. (Id. at pp. 356-357.)
2. Application
a. Appellants' malicious prosecution action arises out of protected activity
Appellants do not dispute that their malicious prosecution action arises out of protected activity, namely, respondents' prosecution of a CFAA cause of action in the Breeze Litigation. (See Paiva, supra, 168 Cal.App.4th at p. 1017 [concluding that it was "beyond question that the initiation and prosecution of the prior suit," forming the basis of a malicious prosecution action was protected activity subject to being stricken pursuant to an anti-SLAPP motion].)
Although it is not entirely clear from appellants' brief, a review of appellants' complaint makes clear that their malicious prosecution cause of action is based on the respondents' prosecution of the CFAA cause of action in the Breeze Litigation rather than in the School Litigation.
b. Appellants failed to demonstrate a probability of prevailing on their malicious prosecution cause of action
In order to demonstrate a probability of prevailing on their malicious prosecution cause of action, appellants were required to make a prima facie factual showing that respondents initiated or maintained the CFAA cause of action in the Breeze Litigation without probable cause. Stated differently, appellants were required to present evidence that " ' " 'any reasonable attorney' " ' " would agree that respondents' CFAA cause of action in the Breeze Litigation was " ' " 'totally and completely without merit.' " ' " (See Parrish, supra, 3 Cal.5th at p. 776 [defining lack of probable cause for purposes of a malicious prosecution cause of action].)
It is undisputed that appellants prevailed on respondents' CFAA cause of action in the Breeze Litigation, and thus, made a sufficient prima facie showing of the "favorable termination" element of their malicious prosecution cause of action. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 741 [discussing "favorable termination" element].)
Appellants also were required to demonstrate a prima facie factual showing that respondents initiated or maintained the CFAA cause of action in the Breeze Litigation with malice. As explained in footnote 27, post, we need not consider whether the trial court properly concluded that appellants failed to establish a prima facie case that respondents prosecuted the CFAA cause of action in the Breeze Litigation with malice.
i. The preliminary injunction in the Breeze Litigation
On October 3, 2013, Baer filed an ex parte application seeking a preliminary injunction, or, in the alternative, an order shortening time for a hearing on the same. In her application, Baer requested the "issuance of a preliminary injunction for the cessation of computer hacking, [and the] release of passwords to computer systems and the materials that [the] School needs to be able to fully utilize its information technology systems that [appellants] have hijacked." (Some capitalization omitted.) Baer sought the injunction pursuant to the CFAA.
Breeze's initial complaint in the Breeze Litigation was brought against Baer, doing business as the School. Baer brought a cross-complaint against appellants. In May 2014, Breeze filed a first amended complaint adding the School as an individual defendant. In May 2014, Baer and the School filed a first amended cross-complaint against appellants that contained a CFAA cause of action against appellants. The Attorney Defendants represented Baer in seeking the injunction and represented Baer and the School throughout the Breeze Litigation.
Baer and Swanson lodged declarations in support of the application. In her declaration, Baer explained that she was the headmistress of the School and stated that she had "personal knowledge of each of the facts set forth" in the declaration. Baer detailed difficulties that the School was having in securing its informational technology systems and Rimma's efforts to interfere with those systems. The declaration also made clear that Baer's statements were made in part based on knowledge that she had gained from others. For example, the final paragraph of the declaration states, "Based upon our investigation to date, as set forth in more detail in the accompanying declaration of Dan Swanson, it is my understanding that the defendants can: . . . [h]ack into our e-mail and receive copies of all e-mail sent to or from both school e-mail accounts and the personal and private accounts of . . . myself and some of my key staff. . . ." (Italics added.)
In his declaration, Swanson stated that he was an "information technology consultant to [t]he . . . School," and that he was "brought in by the [S]chool to assist with taking over the [informational technology] systems after Rimma Breeze's involvement with the [S]chool ended." Swanson further stated:
"Based upon our investigation to date, it is my understanding that the defendants can currently or have recently been able to:
• Hack into the school's e-mail and receive copies of all e-mail sent to or from both [S]chool e-mail accounts and the personal and private accounts of school staff.
• Monitor certain activities on the [S]chool's computer systems and impede them-such as changing passwords and access credentials;
• Hijack the [S]chool's website, keeping us from accessing it and, at least periodically completely disabling it;
• Hijack the [S]chool's communications systems so that they cannot be used by refusing to provide and/or interfering with the use of passwords."
The trial court held a hearing on the application and granted the preliminary injunction that same day. The injunction ordered Rimma to "[r]eturn all computer equipment that belongs to [Baer]; Turn over all passwords to all systems; Cease any and all efforts to intrude into [Baer's] e-mail or systems; Facilitate all efforts to transfer the website (www.theevansschool.com) to [Baer's] control . . . ."
Appellants appeared telephonically at the hearing. There is no reporter's transcript of the preliminary injunction hearing in the record.
On October 11, Rimma moved to vacate the injunction. In her motion, Rimma argued that none of the bases for the injunction had factual merit and that "[Rimma] ha[d] already substantially complied with each of [Baer's] demands set forth in [her] October 7, . . . letter [seeking to enforce the injunction]."
In March 2014, the trial court vacated the preliminary injunction. The court's order vacating the injunction states, "The unopposed motion to vacate the preliminary injunction issued on October 3, 2013, is GRANTED. Based on the evidence submitted, Plaintiff Rimma Breeze has complied with the Court's order." (Underscore omitted.)
ii. Appellants have not demonstrated that the preliminary injunction was obtained by fraud or perjury
Appellants acknowledge in their opening brief that the trial court entered a preliminary injunction in the Breeze Litigation and they acknowledge in their reply brief that it is "generally true" that "an injunction granted establishes probable cause." However, appellants contend that the preliminary injunction that the trial court issued in the Breeze Litigation does not constitute an interim adverse judgment precluding a finding of probable cause because it was "[p]rocured by [f]raud and based on [p]erjured [t]estimony." We are unpersuaded.
With respect to fraud, in their opening brief, appellants contend that the injunction was fraudulently obtained because respondents "stipulat[ed] to a briefing schedule yet [took] an injunction on an ex parte basis anyway." In their reply brief, appellants expand this argument by contending, "Respondents[ ] defrauded Appellants and the Trial Court by stipulating to a briefing schedule, offering Appellants seven days to file an opposition to their ex parte application, inducing Appellants' reliance on Respondents' agreement, then appearing ex parte the following day anyway." (Italics omitted.) Appellants further assert that respondents secured the injunction by "lying to Appellants' counsel." The record does not support appellants' inflammatory assertions.
On the contrary, the record indicates that Attorney Williamson provided appellants' counsel with notice of Baer's intention to seek an ex parte injunction, and that Attorney Williamson agreed to appellants' counsel's proposed briefing schedule "if it works for the court's schedule." (Italics added.) Specifically, after appellants' counsel received notice that Baer intended to appear ex parte the following day to seek a preliminary injunction, appellants' counsel e-mailed and faxed Attorney Williamson a letter that stated in relevant part:
"I am writing to see if you would be amenable to stipulating to a briefing schedule for a temporary restraining order. . . . [¶] To wit, I propose that the ex parte application will be considered the moving papers, our opposition will be filed no later than October 9, 2013, that your client will reply no later than October 11, 2013 and that the hearing be held on October 15, 2013. Please get back to me on this proposal no later than today at 4:00 p.m." (Italics omitted.)
Attorney Williamson responded by sending appellants' counsel an e-mail at 3:08 that afternoon that stated in full:
"The briefing schedule you have proposed would be acceptable to us if it works for the court's schedule." (Italics added.)
Further, although appellants suggest that they were unaware that the ex parte hearing would take place ("Respondents defrauded Appellants and the Trial Court by . . . inducing Appellants' reliance on Respondents' agreement, then appearing ex parte the following day anyway," italics omitted), appellants fail to mention that their counsel appeared telephonically at the hearing on the injunction. Appellants also acknowledged in the trial court that "the Court disregarded the stipulated briefing schedule and granted [respondents'] application for a [p]reliminary injunction." (Italics added.) Appellants' counsel also offered a declaration in the trial court in support of a motion to vacate the injunction "accept[ing] responsibility for not providing the Court with the full factual picture and context of [respondents'] Ex Parte Application for a Preliminary Injunction," (italics altered) and stating, "I presumed the Court would grant the stipulated briefing schedule and was surprised and unprepared for when the Court wanted to argue its merits." (Italics added.) In short, there is no evidence that respondents fraudulently obtained the injunction, as appellants assert in their brief.
With respect to perjury, appellants contend that Baer and Swanson submitted "knowing[ly] false statements made under the penalty of perjury admitted to be false under oath at deposition." Appellants fail to demonstrate that either Baer or Swanson submitted a perjurious declaration. With respect to Baer, appellants' opening brief states: "Baer admitted no personal knowledge of (i) [Rimma] fighting the School's efforts to control the [informational technology] assets, (ii) who had control over iPads, (iii) [Rimma] receiving notices of password changes or quarantining intrusions, and (iv) why the School website was unavailable. [AA12:469- 472.]"
The three pages of the record that are cited in appellants' brief refer to a portion of Baer's deposition in which she discussed a paragraph in her declaration in support of the preliminary injunction. In that portion of the declaration, Baer stated that Rimma had "fought our ongoing efforts to take control of our information technology and communications systems" by "[r]e-setting passwords" and "refus[ing] to hand over control of our website." While Baer acknowledged during her deposition that she did not have "personal knowledge" of these actions on Rimma's part, Baer stated that she had "been told from the ones that were working on the system" about such activities.
At most, Baer may have acknowledged that she did not have personal knowledge as to the specific technical methods by which Rimma was resisting the school's efforts to obtain control over their informational technology systems. However, Baer's deposition testimony falls far short of establishing that she submitted a false declaration, and certainly does not establish that she submitted a knowingly false declaration. Appellants also fail to demonstrate that the trial court relied on any allegedly perjurious statements in granting the injunction.
With respect to Swanson, notwithstanding appellants' assertion in their brief that Swanson "admitted during [his] deposition[ ] that [he] actually had no personal knowledge of many of the most relevant statements [he] included in [his] declaration[ ]," appellants' argument in their brief fails even to cite to either his declaration or his deposition. Instead, appellants cite to a page of their opposition to the anti-SLAPP motion — "[AA10:379.]" Appellants also contend that their "opposition brief [to the anti-SLAPP motion] clearly laid out the evidence of fraud and perjury." We disregard these arguments since they constitute improper attempts to incorporate into their appellate brief arguments presented in the trial court. (See e.g., Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 815 ["We need not address this unsupported and undeveloped argument, and it is improper simply to incorporate by reference papers filed in the trial court"].)
In sum, notwithstanding that appellants make the serious charge that respondents obtained the preliminary injunction in the underlying action by way of fraud and perjury, appellants' brief entirely fails to provide support for this assertion.
iii. None of the other arguments related to the preliminary injunction alluded to in appellants' briefing has any merit
Although not presented as separate arguments, we address three other issues that appellants mention in their opening brief that might be construed as bases for concluding that the preliminary injunction may not serve as an interim adverse judgment in this case. First, appellants note that respondents did not post a mandatory bond pursuant to section 529 in connection with the injunction. To the extent that appellants intend to suggest that respondents' failure to post a bond deprives the preliminary injunction of its effect as an interim adverse judgment, we reject that argument as being directly contrary to Paiva, supra, 168 Cal.App.4th 1024. After considering the issue in depth, the Paiva court concluded that "the issuance of the preliminary injunction established probable cause for the initiation of the prior suit, irrespective of the fact that the order never became legally effective because of the failure to post a bond." (Id. at p. 1025.)
Section 529 provides in relevant part:
"(a) On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant's undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved."
Appellants also observe that the trial court vacated the preliminary injunction. However, appellants do not contend that the trial court vacated the injunction on the ground that the injunction was improperly granted or that respondents would be unlikely to prevail at trial. In fact, the court's order vacating the preliminary injunction states only that Rimma had complied with the injunction. In any event, it is clear that the court's order vacating the injunction did not deprive the preliminary injunction of its effect as an interim adverse judgment. (See Parrish, supra, 3 Cal.5th at p. 778.) In this regard, the Parrish court stated:
Appellants state that they filed declarations in support of their motion that allegedly "demonstrated that School Respondents were unlikely to succeed with their CFAA claims." However, there is nothing in the record demonstrating that the trial court vacated the injunction on this basis.
"As Wilson [v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 (Wilson)] makes clear, whether an interim ruling is 'subsequently reversed by [a] trial or appellate court' has no bearing on the probable cause inquiry. (Wilson, supra, 28 Cal.4th at p. 818; see also, e.g., Crowley [v. Katleman (1994) 8 Cal.4th 666,] 692, fn. 15.) In Wilson, for example, the fact that the order denying the anti-SLAPP motion was vacated—and the motion ultimately granted—posed no obstacle to our concluding that the denial established probable cause to bring suit. (Wilson, supra, at p. 817.) Likewise here, the summary judgment ruling in favor of [the malicious prosecution defendants] establishes that their position had arguable merit, whether or not, after trial, the court wished it had ruled against them." (Ibid.)
Finally, appellants contend that, even assuming that the October 3, 2013 preliminary injunction establishes that respondents had probable cause to bring the CFAA cause of action in the Breeze Litigation, "[r]espondents lost probable cause when the District Court [in the School Litigation] dismissed the CFAA claim on November 8, 2013." (Italics added; citing Zamos v. Stroud (2004) 32 Cal.4th 958, 960 ["an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause"].) Appellants appear to contend that this is so because the district court's dismissal of the CFAA cause of action in the School Litigation had res judicata effect that precluded respondents from prevailing on their CFAA cause of action in the Breeze Litigation. This argument fails because appellants have not demonstrated that their res judicata defense was so clear that any " ' " 'any reasonable attorney would agree' " ' " that maintaining the CFAA cause of action in the Breeze Litigation after the district court's dismissal of the CFAA cause of action in the School Litigation was " ' " 'totally and completely without merit.' " ' " (Parrish, supra, 3 Cal.5th at p. 776.) Under these circumstances, the federal court's dismissal of the CFAA cause of action in the School Litigation does not demonstrate that respondents lacked probable cause to maintain the CFAA cause of action in the Breeze litigation.
Appellants failed to properly present the argument on appeal by mentioning it only in a footnote in their opening brief. (See, e.g., Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1242, fn. 7 ["Points raised on appeal must be stated under separate headings (Cal. Rules of Court, rule 8.204(a)(1)(B)), and we decline to consider this issue, which the Committee raises only in a footnote"].)
Appellants did present this contention as a separate argument for the first time in their reply brief, but fail to offer any reason as to why they raised the argument properly for the first time as a separate argument only on reply. (See, e.g., WorldMark, The Club v. Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7 ["Arguments raised for the first time in the reply brief are untimely and may be disregarded"].) Notwithstanding appellants' procedural defaults, we address the merits of appellants' contention in the text.
Appellants did not refer to the doctrine of res judicata in connection with their argument as to the preliminary injunction and the interim adverse judgment rule. However, elsewhere in their opening brief, appellants claimed that the CFAA cause of action in the Breeze Litigation was barred by the doctrine of res judicata, given the dismissal of the CFAA cause of action in the School Litigation.
Among the facts from which one might reasonably conclude that the application of the doctrine of res judicata was less than certain are that: 1) the record indicates that the parties reached a tentative settlement of the entire case on October 18, 2013; 2) Baer did not oppose the district court's November 8, 2013 dismissal of her CFAA cause of action in the School Litigation; and 3) at the time of the district court's November 8, 2013 dismissal of the CFAA cause of action in the School Litigation, the same cause of action was pending in the Breeze Litigation. We do not hold that these facts demonstrate that the federal court's dismissal did not have res judicata effect. Rather, we conclude only that, given these facts, appellants have failed to demonstrate that no reasonable attorney could have concluded that the CFAA cause of action remained viable in the Breeze Litigation even after the dismissal of the CFAA cause of action in the School Litigation. Indeed, we observe that appellants do not argue that they sought vacatur of the preliminary injunction on the ground that the CFAA cause of action in the Breeze Litigation was no longer viable after the federal court's dismissal.
Having rejected all of the arguments that appellants present on appeal with respect to the preliminary injunction entered in the Breeze Litigation, we conclude that the trial court did not err in determining that appellants failed to demonstrate that they could establish that respondents lacked probable cause in initiating and maintaining the CFAA cause of action in the Breeze Litigation. Since lack of probable cause is a necessary element of appellants' malicious prosecution cause of action, we further conclude that the trial court did not err in its determination that appellants failed to establish a probability of prevailing on that cause of action. B. Appellants have not demonstrated that the trial court erred in denying their application for an order shortening time to file a motion to compel
Appellants do not contend that the injunction did not "reasonably relate" to the CFAA causes of action asserted in the Breeze Litigation. (Fleishman, supra, 102 Cal.App.4th at p. 356.)
In light of our conclusion with respect to the probable cause element of appellants' malicious prosecution cause of action, we need not consider appellants' contention that the trial court erred in determining that appellants failed to demonstrate that they could establish that respondents acted with malice in initiating and maintaining the CFAA cause of action in the Breeze Litigation. Specifically, we need not consider: 1) appellants' contention that the trial court erred in weighing the credibility of the parties with respect to whether respondents initiated and maintained the CFAA cause of action with malice; 2) appellants' claims of evidentiary error with respect to the malice element of their malicious prosecution cause of action; 3) and appellants' claim that the trial court "improperly dismissed undisputed evidence" (capitalization & boldface omitted) of malice.
Appellants claim that the trial court erred in denying their "request to depose Scully and Williamson."
Although the trial court's order denying appellants' application is not itself an appealable order, we conclude that the trial court's order is reviewable pursuant to section 906. (See id. ["Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . ."].)
1. Governing law
Section 425.16 subdivision (g) provides:
"All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." (Italics added.)
2. Factual and procedural background
After respondents filed their anti-SLAPP motion, appellants filed an "ex parte application to shorten the time on motion to compel depositions of [Attorneys] Miles Scully and Ian Williamson." (Formatting omitted.) In their application, appellants explained that they sought to file a motion to compel Attorney Scully and Attorney Williamson's depositions notwithstanding the discovery stay in effect pursuant to section 425.16, subdivision (g). Appellants "request[ed] an order shortening time on a briefing schedule so that the deposition, if permitted by the Court, can take place before the date [appellants] must file their opposition to the Anti-SLAPP."
Respondents filed an opposition to the application. In their opposition, respondents stated that they had no opposition to continuing the hearing date for the anti-SLAPP motion or having the court issue an order shortening the time to "set a noticed motion to conduct limited discovery." However, respondents argued that any such motion would be without merit.
The trial court denied the application. In its order, the court noted that discovery is generally " 'closed' " upon the filing of an anti-SLAPP motion and that a plaintiff must demonstrate why the discovery is needed to establish a prima facie case. The court also noted that depositions may not be used to " 'test' " a defendant's declaration.
3. Application
In their opening brief, appellants contend that the trial court erred in denying their "request to conduct limited discovery." (Capitalization & boldface omitted.) However, appellants fail to discuss the absence of a "noticed motion" in the record seeking such discovery. (§ 425.16, subd. (g).) Further, after respondents noted in their brief the absence of any such motion in the record, appellants made no further argument in their reply.
Appellants did not accurately describe the nature of their application in their argument on appeal. Appellants' application was one seeking to "shorten time" to permit them time to file a motion to compel, not a "request to depose [Attorney] Scully and [Attorney] Williamson," as appellants describe in their brief.
Given the absence of any "noticed motion" seeking discovery despite the statutory stay (§ 425.16, subd. (g)), or any argument presented by the appellants on appeal that they were excused from complying with such a requirement, we conclude that appellants have not demonstrated that the trial court erred in denying their application for an order shortening time to file a motion to compel. C. Appellants have not demonstrated that the trial court abused its discretion in awarding attorney fees
Appellants contend that the trial court erred by awarding excessive attorney fees to respondents on the anti-SLAPP motion.
1. Governing law and standard of review
Section 425.16, subdivision (c) provides in relevant part: "[A] prevailing defendant on [an anti-SLAPP motion] shall be entitled to recover his or her attorney's fees and costs." "[U]nder . . . section 425.16, subdivision (c), any SLAPP defendant who brings a successful [anti-SLAPP motion] is entitled to mandatory attorney fees." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)
"We review an anti-SLAPP attorney fee award under the deferential abuse of discretion standard. [Citations.] The trial court's fee determination ' " 'will not be disturbed unless the appellate court is convinced that it is clearly wrong.' " ' [Citation]." (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.) It is an appellant's burden to show abuse of discretion. (E.g., Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.)
2. Application
Appellants offer two arguments in support of their contention that the trial court erred in awarding excessive attorney fees to respondents on the anti-SLAPP motion. First, appellants contend that the trial court erred in awarding attorney fees based on excessive hourly rates. However, the two citations to the record that appellants offer in support of this contention—"[AA24 at ¶ 14; AA24:1004-1049]"— do not establish any abuse of discretion. The first citation is incomprehensible, since "AA24" refers to Tab 24, which consists of more than a hundred pages of documents; "AA24 at ¶ 14" is thus not a meaningful citation. The second citation is to 45 pages of documents that appellants submitted in opposition to the motion for attorney fees. An appellant is required to explain the relevance of documents cited in his brief. This court is not "obligate[d] . . . to cull the record for the benefit of the appellant.' (Bains v. Moores (2009) 172 Cal.App.4th 445, 455 (Bains).) Accordingly, we conclude that appellants have not demonstrated that the trial court based its attorney fee award on excessive hourly rates.
To the extent the intended citation is to a paragraph in appellants' counsel's declaration discussing the rates charged by respondents' attorneys in other cases, appellants fail to establish that the other cases mentioned in the declaration were similar to the present case. --------
Second, appellants contend that respondents "submitted billing records for work unrelated to the Special Motion . . . ." (Italics omitted.) However, appellants' only citation in support of this argument is the first page of respondents' counsel's declaration offered in support of respondents' motion for attorney fees — "[AA21:870]." Again, this court is not obligated to cull the record to uncover the documents that might be relevant to appellants' argument. (Bains, supra, 172 Cal.App.4th at p. 455.)
Accordingly, we conclude that appellants have clearly failed to demonstrate that the trial court awarded excessive attorney fees to respondents on the anti-SLAPP motion. D. The case is remanded to the trial court for consideration of respondents' request for attorney fees incurred on appeal
Respondents request that this court award them attorney fees on appeal. In Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc (2005) 129 Cal.App.4th 1228, 1267, this court stated that a defendant who has prevailed on an anti-SLAPP motion on appeal may be entitled to appellate attorney fees. We remand the case to the trial court to consider respondents' request for attorney fees incurred on appeal. (Ibid. [" 'Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees,' " quoting Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498].)
IV.
DISPOSITION
The trial court's order granting respondents' anti-SLAPP motion, order denying appellants' application for an order shortening time to file a motion to compel, and order awarding respondents attorney fees and costs are affirmed.
The matter is remanded to the trial court for consideration of respondents' request for attorney fees incurred in this appeal.
Respondents are entitled to costs on appeal.
AARON, J. WE CONCUR: BENKE, Acting P. J. DATO, J.