Khanna v. Khanna

Full title: ANDY KHANNA, Plaintiff and Appellant, v. VINCE KHANNA et al., Defendants…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Apr 3, 2020

No. H044973 (Cal. Ct. App. Apr. 3, 2020)

Opinion

H044973 H045555

04-03-2020

ANDY KHANNA, Plaintiff and Appellant, v. VINCE KHANNA et al., Defendants and Respondents.

ELIA, ACTING P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17CV305663)

Appellant Andy Khanna (Andy) filed a malicious prosecution action against James A. Sarrail (Attorney Sarrail), and Sarrail, Castillo, and Hall, LLP. (Sarrail firm) (together "Sarrail defendants") and Vince Khanna (Vince).¹ Andy's malicious prosecution action was based on Santa Clara County Superior Court Case No. 1-06-CV-074362 (the underlying lawsuit). In the underlying lawsuit, Vince—the plaintiff and the respondent on appeal—recovered a money judgment against Sonasoft Corporation (Sonasoft), his former employer but ultimately not against Andy.

1 For the sake of clarity, we will refer to Andy Khanna and Vince Khanna by their first names. Despite having the same surname, they are apparently unrelated. On our own motion, we take judicial notice of the appellate court records and our prior opinions in Khanna v. Sonasoft Corporation, et al. (Sept. 27, 2019, H044374 [nonpub. opn.] (H044374), review den. Dec. 11, 2019, S259003; Khanna v. Sonasoft Corporation, et al. (June 30, 2016, H040007 [nonpub. opn.]) (H040007), review den. Sept. 21, 2016, S236464, and Khanna v. Sonasoft Corporation, et al. (June 30, 2016, H041128 [nonpub. opn.]) (H041128). (See Evid. Code, §§ 452, subd. (d); 459.) In Khanna v. Khanna et al., case No. H044973 (H044973), we take judicial notice of the appellate record in Khanna v. Khanna et al., case No. H045555 (H045555), and in H045555 we take judicial notice of the appellate record in H044973. (See Evid. Code, §§ 452, subd. (d); 459.) On our own motion, this court ordered H044973 and H045555 to be considered together for the purposes of briefing, oral argument, and disposition. In both the present appellate cases, Andy proceeded by way of appendixes.

A brief history of the underlying lawsuit follows. Vince filed a lawsuit against Sonasoft and Andy, who was Sonasoft's CEO or president. The first amended complaint alleged many causes of action, including causes of action for nonpayment of wages, violation of various Labor Code sections, and tortious discharge. It contained alter ego allegations as to Andy and Sonasoft. On April 19, 2010, the parties' settlement was orally placed on the record. Andy was present at the proceedings as a named defendant and in his capacity as a member of Sonasoft's board of directors. Among other things, the settlement required Sonasoft to pay a total of $227,000 to Vince in nine quarterly payments, with the first payment to be made on April 30, 2010.

A September 23, 2010 order in the underlying lawsuit approved the parties' judicially supervised settlement and reiterated its terms. Under its terms, the balance of the total settlement of $227,000 immediately became "due and owing" if Sonasoft missed a payment. Another term required Andy to be dismissed with prejudice.

In the underlying lawsuit, the trial court entered a money judgment against only Sonasoft pursuant to the September 23, 2010 order, which was attached to the judgment. The judgment showed that Sonasoft was required to pay $173,000 in damages ($227,000 less payments of $54,000) to Vince. A first amended judgment (filed June 27, 2013) showed that no damages were still owing but that Sonasoft was required to pay Vince a total of $193,188 in postjudgment interest, costs, and attorney fees.

Subsequently in the underlying lawsuit, the trial court granted Vince's motion to amend the judgment to add Andy as an alter ego judgment debtor, stating in its order, "Andy Khanna, CEO, President and [f]ounder of Sonasoft is added to the [j]udgment as an additional [j]udgement [d]ebtor." A second amended judgment (filed September 24, 2013) simply added Andy as an additional judgment debtor. In our appellate opinion in H040007, this court modified the second amended judgment by striking the language adding Andy as an additional judgment debtor and affirmed the judgment as modified.

In H044973, Andy appeals from an order, filed June 15, 2017, granting defendants' special motions to strike pursuant to Code of Civil Procedure section 425.16.² (See § 904.1, subd. (a)(13).) A motion brought pursuant to section 425.16 is commonly referred to as an anti-SLAPP motion. "An anti-SLAPP motion seeks to strike a '[s]trategic lawsuit against public participation,' that is, a 'SLAPP.' [Citation.]" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 882, fn. 2 (Wilson v. Cable News).) "The analysis of an anti-SLAPP motion proceeds in two steps: ' "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one 'arising from' protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim." ' [Citations.]" (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321.) In H044973, Andy asserts on appeal that the trial court erred in finding that (1) defendants carried their burden in step one and (2) he did not carry his burden in step two.

2 All further statutory references are to the Code of Civil Procedure unless otherwise specified.

In H045555, Andy appeals from orders granting defendants' motions for attorney fees and costs under section 425.16, subdivision (c). (See § 904.1, subd. (a)(2).) In general, a defendant prevailing on an anti-SLAPP motion is "entitled to recover his or her attorney's fees and costs." (§ 425.16, subd. (c)(1).) In H045555, Andy asserts on appeal that the trial court abused its discretion in making its awards of attorney fees and costs to defendants.

We affirm all orders from which Andy appeals.

H044973

I

Procedural History

Andy's first amended complaint for malicious prosecution (complaint) alleged: "[Andy] was ordered by the court to be dismissed with prejudice from V. Khanna v. Sonasoft, et al. case number 106-CV-074362, when the trial court granted the summary judgment motion in 2008." The complaint averred that "[d]efendants and each of them initially filed directly against Andy Khanna individually, as the alleged employer of Vince Khanna, knowing Plaintiff was never the actual employer of said defendant, and only dropped that theory when the court favorably terminated that personal litigation against Andy Khanna by granting summary judgment." "However, Defendants and each of them continued to pursue Andy Khanna as the alleged alter ego of Sonasoft, knowing that there was no legal justification for proceeding in that fashion . . . ."

The complaint further stated: "When the Sonasoft Lawsuit was ultimately settled, Andy Khanna, individually, as the alleged alter ego of Sonasoft, was ordered to be dismissed with prejudice under the judicially supervised settlement agreement entered into with [d]efendants in 2010. That agreement had already been breached by [d]efendants and each of them by failing to dismiss the lawsuit against Plaintiff Andy Khanna, who had done nothing to in any way breach the settlement agreement or to justify said actions as herein alleged. Those facts were never divulged to the court when [d]efendants and each of them sought and obtained the order adding Andy Khanna as a [j]udgment [d]ebtor." It also asserted that defendants were "actively involved in continuing the litigation against Andy Khanna by seeking to add him as a [j]udgment [d]ebtor on the theory of alter ego without probable cause to believe that he in fact operated in that capacity" and "with knowledge that he was already supposed to be dismissed from the [underlying lawsuit]" and were "working in concert" with each other.

The complaint alleged: "No reasonable person in [d]efendants' circumstances would have believed that there were reasonable grounds to add Andy Khanna back into the suit as a [j]udgment [d]ebtor when he was previously found to not be liable for Vince Khanna's claims in the 2008 [o]rder on Motion for Summary Judgment, and again in 2010 when Defendants and each of them already voluntarily agreed to dismiss him with prejudice. Despite this knowledge, [d]efendants and each of them actively pursued Andy Khanna as the alter ego of Sonasoft, and committed the acts alleged above, knowing he was not a proper defendant or judgment debtor, and knowing that the information that they were providing to the court to obtain that order was incomplete, inaccurate, untrue, and otherwise misleading." It stated that "the Sixth District Court of Appeal determined that Andy Khanna was improperly added as a [j]udgment [c]reditor [sic], and thus, finally terminated the [underlying lawsuit] in his favor."

The complaint further alleged: "Defendants and each of them improperly utilized the alter ego theory to actively make him a judgment debtor, and committed the acts herein above alleged. Said actions were deliberate, intentional and with malice, and as described below, caused the injuries, damages, losses and harms herein alleged." It also alleged: "Andy Khanna has spent the past decade of his life in defending himself against [d]efendants [sic] malicious prosecution and the actions described above. Specifically, Andy Khanna has incurred costs such as attorneys fees in defending himself against the proceedings brought against him as a [j]udgment [d]ebtor, attorneys fees in defending himself on appeal, business losses, harm to his credit, and other costs associated with defending himself for the past three (3) years against being added as a [j]udgment [d]ebtor . . . . Additionally, said [d]efendants and each of them sought and obtained a lien against [Andy's] house, threatened him with contempt charges and incarceration, attached his personal bank account at Christmas time, and committed the acts herein alleged, all of which added to [sic] together to thereby cause him great anguish, fear of losing his home [and] being unable to provide for his family at a crucial time, and . . . severe emotional distress . . . ."

After the filing of the complaint, the Sarrail defendants filed an anti-SLAPP motion. In support of their motion, they filed a memorandum and requested judicial notice of documents in the underlying lawsuit. Vince also filed an anti-SLAPP motion and supporting memorandum.

Andy filed opposition to the Sarrail defendants' anti-SLAPP motion, supported by declarations from Steve M. Defilippis (Andy's attorney), W. Patrick Kelley, Sr. (Kelley) (Sonasoft's first secretary), Andy, Douglas Mackallor (a contractor or employee of Sonsasoft since July 2012), and Jim Gilmer (Sonasoft's successor secretary). Andy also filed opposition to Vince's anti-SLAPP motion. It incorporated by reference the opposition papers and declarations filed in response to the Sarrail defendants' anti-SLAPP motion.

In support of their anti-SLAPP motions, defendants argued that (1) the motion to add Andy as an alter ego judgment debtor was an activity protected by the anti-SLAPP statute; (2) Andy could not establish a probability of prevailing in his malicious prosecution action because the "interim adverse judgment rule" barred the claim; (3) the fraud and perjury exception to the rule did not apply; and (4) the motion to add Andy as a judgment debtor was not brought maliciously. Under the interim adverse judgment rule, " 'a trial court judgment . . . in favor of the plaintiff . . . in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment . . . is overturned on appeal . . . .' ([Wilson v. Parker, Covert & Chidester (2002)] 28 Cal.4th [811,] 817.)" (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776 (Parish).) "An essential element of a cause of action for malicious prosecution is the defendant's lack of probable cause for prosecuting the underlying action. [Citation.]" (Lackner v. LaCroix (1979) 25 Cal.3d 747, 752; see Parrish, supra, 3 Cal.5th at pp. 775-776.)

In his opposition papers, Andy argued that "[d]efendants were only able to succeed in modifying the second amended judgment to add [him] as a judgment debtor on the theory that he was the alter ego of Sonasoft by committing fraud and perjury." Andy further asserted that "the defendants manipulated and misled the court into bringing [him] back into the lawsuit after he had arranged a judicially supervised settlement that specifically required his dismissal from the lawsuit with prejudice . . . ." The opposition papers identified 13 categories of misleading or false statements, claims, and/or omissions made by defendants in the motion to add Andy as an additional judgment debtor in the underlying lawsuit.

In its June 15, 2017 order, the trial court granted the request for judicial notice of 22 court records in the underlying lawsuit (Evid. Code, § 452, subd. (d)), but it took judicial notice of the truth of the content of only certain of those documents, namely, the court's orders, judgments, and the Court of Appeal decision. Citing Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 (Jarrow), the court determined that defendants met their burden in the first step of the anti-SLAPP analysis because " '[b]y definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit,' and such a cause of action necessarily falls within the scope of [the anti-SLAPP statute (§ 425.16)]." The trial court concluded that in step two of the anti-SLAPP analysis, Andy failed to meet his burden of showing a probability of prevailing on his malicious prosecution claim. (See § 425.16, subd. (b)(1)). The court found that Andy had failed to overcome the interim adverse judgment rule because he had not presented sufficient evidence that the order granting the postjudgment motion to add Andy as an alter ego judgment debtor in the underlying lawsuit had been obtained by perjury or fraud. The court's order granted defendants' anti-SLAPP motions.

II

Discussion

A. Anti-SLAPP Motions

1. Overview

Section 425.16, subdivision (b)(1), provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." In making this determination, the court must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) "[T]he Code of Civil Procedure also allows a court to consider, in lieu of an affidavit, certain written declarations." (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 941.)

As stated, "[a] court evaluates an anti-SLAPP motion in two steps." (Wilson v. Cable News, supra, 7 Cal.5th at p. 884, superseded by statute on another point as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547-550.) " 'Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." ' [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim." (Ibid.)

At the second step, "[t]he 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.]" (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) " 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279 (Soukup).)

On appeal, "[w]e 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.)

2. First Step: Protected Activity

"[S]ection 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing [or maintaining] a lawsuit. [Citation.] Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. [Citations.]" (Jarrow, supra, 31 Cal.4th at pp. 734-735, fn. omitted.) "[T]he malicious prosecution tort's utility in combating meritless and harassing litigation [does not] preclude the possibility that a particular malicious prosecution action may itself be meritless or designed to harass." (Id. at p. 738.) In Jarrow, the Supreme Court rejected an argument that "because filing or maintaining an action without probable cause does not constitute a valid 'act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution' (§ 425.16, subd. (b)(1)), malicious prosecution claims, which by definition are based on filing or maintaining actions without probable cause, should not be eligible for anti-SLAPP protection." (Id. at p. 739.) Thus, there is no "categorical exemption from section 425.16 for malicious prosecution actions." (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)

In Wilson v. Cable News, the Supreme Court rejected the suggestion that a plaintiff's allegations of illicit motive by themselves operate as a bar to anti-SLAPP protection. (Wilson v. Cable News, supra, 7 Cal.5th at p. 889.) At the first step of analysis, the anti-SLAPP statute does not "require a defendant to disprove allegations of illicit motive." (Id. at p. 887.) "The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute." (Id. at p. 884.) The Supreme Court further explained: "[A]t the first step of the anti-SLAPP analysis, we routinely have examined the conduct of defendants without relying on whatever improper motive the plaintiff alleged. For example, in Jarrow[, supra,] 31 Cal.4th 728, we considered whether claims for malicious prosecution could be subject to an anti-SLAPP motion. The plaintiff urged that filing an action without probable cause was not activity in furtherance of constitutional speech and petition rights, and so such claims should be exempt. We rejected the argument. That the claim arose from the filing of a lawsuit, protected First Amendment activity, was alone dispositive; allegations that the suit was filed without probable cause—or, for that matter, based on a malicious motive—were irrelevant at the first step, and mattered only at the second step. [Citations.]" (Id. at p. 888.)

Defendants satisfied their burden in the first step of the anti-SLAPP analysis.

3. Second Step: Probability of Prevailing on Malicious Prosecution Claim

a. Malicious Prosecution

"The tort [of malicious prosecution] 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. [Citations.]" (Parrish, supra, 3 Cal.5th at pp. 775-776, fn. omitted.)

"Because malicious prosecution suits have the potential to penalize and deter the legitimate invocation of the judicial process for redress of grievances, only claims that a reasonable litigant or attorney would have seen as lacking all merit should form the basis for such a suit." (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at pp. 817-818, superseded by statute on another point as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547-550.) The general rule is 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." (Id. at p. 818.)

"[T]he existence of probable cause is a question of law to be determined as an objective matter. [Citation.] '[T]he probable cause element [of malicious prosecution] 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.]" (Parrish, supra, 3 Cal.5th at p. 776.) " 'A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.' [Citation.]" (Soukup, supra, 39 Cal.4th at p. 292.)

"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.' " ' [Citation.]" (Parrish, supra, 3 Cal.5th at p. 776.) The same standard applies to the continuation of a lawsuit as to the initiation of a lawsuit. (Zamos v. Stroud (2004) 32 Cal.4th 958, 970; see id. at p. 973.)

In contrast, the "existence of malice" is "a question of fact regarding 'the subjective intent or purpose with which [a litigant] acted in' prosecuting the underlying action." (Parrish, supra, 3 Cal.5th at p. 776.) " 'The "malice" element . . . relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] . . . The plaintiff must plead and prove actual ill will or some improper ulterior motive.' [Citations.] . . . Malice may also be inferred from the facts establishing lack of probable cause.' [Citation.]" (Soukup, supra, 39 Cal.4th at p. 292.) It is "lawful to file a lawsuit—even a meritless one—but to do so for the sake of impoverishing an enemy constitutes the tort of malicious prosecution. [Citation.]" (Wilson v. Cable News, supra, 7 Cal.5th at p. 886.)

Under the interim adverse judgment rule, "if a claim succeeds at a hearing on the merits, then, unless that success has been procured by certain improper means, the claim cannot be 'totally and completely without merit.' [Citation.] Although the rule arose from cases that had been resolved after trial, the rule has also been applied to the 'denial of defense summary judgment motions, directed verdict motions, and similar efforts at pretrial termination of the underlying case.' [Citation.]" (Parrish, supra, 3 Cal.5th at pp. 776-777.) We discern no principled basis, and Andy has offered none, for finding that the interim adverse judgment rule is inapplicable to a postjudgment motion to add an alter ego judgment debtor to an existing judgment.

In Parrish, supra, 3 Cal.5th 767, a case arising from a trade secrets dispute, former employees brought a malicious prosecution action against the attorneys who represented the employer in the underlying action for misappropriation of trade secrets. (Id. at pp. 772-773.) The California Supreme Court considered the question "whether the interim adverse judgment rule applies when a trial court had initially denied summary judgment, finding that a lawsuit had sufficient potential merit to proceed to trial, but concluded after trial that the suit had been brought in 'bad faith' because the claim, even if superficially meritorious, in fact lacked evidentiary support." (Id. at p. 771; see Civ. Code, § 3426.4.) The Supreme Court determined that there was no separate " 'bad faith' " exception to the interim adverse judgment rule. (Id. at pp. 778-779.)

The Supreme Court clarified that "[t]he interim adverse judgment rule concerns the probable cause element of a malicious prosecution claim." (Parrish, supra, 3 Cal.5th at p. 776.) The fact that "an interim ruling is 'subsequently reversed by [a] trial or appellate court' has no bearing on the probable cause inquiry. [Citation.]" (Id. at p. 778.) But the interim adverse judgment rule does not apply where an interim adverse judgment was obtained by perjury or fraud. (Id. at pp. 776, 780.)

In Parrish, the Supreme Court rejected an "invitation to create an exception to the interim adverse judgment rule for cases in which litigants or their lawyers inadvertently submit 'materially false facts' . . . in support of their claims." (Parrish, supra, 3 Cal.5th at p. 782, fn. omitted.) Litigants are not required to " 'attempt to predict how a trier of fact will weigh the competing evidence, [n]or to abandon their claim[s] if they think it likely the evidence will ultimately weigh against them.' [Citations.]" (Ibid.) It refused to create a " 'materially false facts' " exception to the rule. (Ibid.)

In Parrish, the Supreme Court recognized that in Carpenter v. Sibley (1908) 153 Cal. 215 at page 218, the court had "referred to a 'general rule' that no presumption of probable cause exists when a prior judgment (in a criminal case) ' "was procured by fraud, perjury or subornation of perjury, or other unfair conduct." ' [Citation.]" (Parrish, supra, 3 Cal.5th at p. 783.) But the Supreme Court observed that "[i]n the more than 100 years since [it] recited that 'general rule,' however, [the court had] cited Carpenter only three times—and never for the proposition that 'unfair conduct' [citation] includes inadvertent reliance on factual inferences that turn out to be unsupported at trial. [Citations.]" (Ibid.) b. Plaintiff's Burden in Step Two of the Anti-SLAPP Analysis

As indicated, a "plaintiff's second-step burden is a limited one." (Wilson v. Cable News, supra, 7 Cal.5th at p. 891.) "If the court determines that relief is sought based on allegations arising from activity protected by the [anti-SLAPP] statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, italics added.) Here, the question is whether Andy has shown minimal merit for his claim that the interim adverse judgment rule did not bar the malicious prosecution action because the second amended judgment adding him as a judgment debtor in the underlying lawsuit was obtained by perjury or fraud.

The crime of perjury is statutorily defined: "Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury." (Pen. Code, § 118, subd. (a), italics added.) The materiality of the statement is an element of perjury. (People v. Kobrin (1995) 11 Cal.4th 416, 420.)

In addition, the specific intent to declare falsely under oath or penalty of perjury is "an essential element of the crime of perjury. [Citations.]" (People v. Viniegra (1982) 130 Cal.App.3d 577, 584.) A person does not commit perjury unless the person's statement was made "with the consciousness that he [or she] did not know that it was true, and with the intent that it should be received as a statement of what was true in fact." (People v. Von Tiedeman (1898) 120 Cal. 128, 135, cited with approval in People v. Hagen (1998) 19 Cal.4th 652, 663-664.) A person does not commit perjury where the person "unqualifiedly asserts the truth of something as to which [the person] has knowledge but is mistaken." (People v. Rutter (2006) 143 Cal.App.4th 1349, 1357.)

A judgment or order is considered obtained by fraud where it is procured by intrinsic fraud.³ Perjured testimony is quintessential intrinsic fraud. (See Buesa v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1546.) Use of forged documents also constitutes intrinsic fraud. (Gale v. Witt (1948) 31 Cal.2d 362, 366.) Willful concealment or suppression of material evidence may constitute intrinsic fraud. (See Kachig v. Boothe (1971) 22 Cal.App.3d 626, 634.) It is clear that "when a litigant relies on evidence that [the litigant] knows to be false, [the litigant] is not entitled to reap the benefits of the interim adverse judgment."⁴ (Parrish, supra, 3 Cal.5th at p. 782.) c. Analysis

3 "Where the fraud practiced is collateral to and outside of court so that a party is, because of such fraud or concealment, effectively deprived of presenting his case or all of his defense, it is extrinsic . . . ." (Gale v. Witt, supra, 31 Cal.2d at p. 365.) "Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been 'deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.' [Citation.]" (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) There has been no claim that defendants perpetrated extrinsic fraud.

4 As a point of reference, we note that "[t]he elements of fraud that will give rise to a tort action for deceit are: ' "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage." ' [Citation.]" (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)

On appeal, Andy argues that even if the lower court correctly determined that defendants satisfied the first step of an anti-SLAPP analysis, he met his burden in the second step by showing that there was a probability of prevailing on the malicious prosecution action. Andy claims that "despite [Attorney Sarrail's] thorough knowledge and presence throughout the case, he deliberately withheld information from the court, misrepresented the facts, and in some instances, outright perjured himself" in seeking to add Andy as an alter ego judgment debtor.

In opposition to the anti-SLAPP motions, Andy argued that there were 13 categories of statements, claims, and/or omissions that showed that defendants in the malicious prosecution action had "manipulated and misled the court into bringing [him] back into the [underlying] lawsuit." He now argues that the evidence cited in support of those claims shows that defendants' misstatements and misrepresentations rose "to the level of fraud and perjury." Defendants counter that Andy fails on appeal to identify any specific material statement that was made by any defendant "under oath" that the particular defendant knew to be false.

Alleged Fraudulent Concealment

Andy argued that in the underlying lawsuit defendants failed to "candidly apprise the court" of their material breaches of the "Mutual Release and Settlement Agreement." On appeal, Andy argues that defendants "failed to apprise the lower court" that they had breached their "mandatory affirmative duty to dismiss [him] with prejudice" from the lawsuit.

As he did below, Andy repeatedly fails to differentiate between the court-approved, judicially supervised settlement, pursuant to which judgment was expressly entered, and the separate, extrajudicial document entitled "Mutual Release and Settlement Agreement" (extrajudicial release agreement). The parties' judicially supervised settlement required them to execute a written mutual release. But the extrajudicial release agreement was not incorporated into the original money judgment, which was apparently not appealed and became final.

Moreover, it appears from the evidence adduced in opposition to the anti-SLAPP motions that Andy provided a copy of the extrajudicial release agreement to the trial court in his opposition to the anticipated postjudgment motion to add him as an alter ego judgment debtor, and that the trial court was aware of the extrajudicial release agreement.⁵ In Andy's argument in opposition to the anti-SLAPP motions, Andy pointed out that before ruling on the motion to add him as an alter ego judgment debtor, the trial court had "expressly ask[ed]" the parties about the effect of the extrajudicial release agreement on the motion.⁶

5 In opposition to the motion to add him as an alter ego judgment debtor in the underlying lawsuit, Andy also provided the court with a copy of the court's order initially granting Andy's motion for summary judgment. The court was clearly aware of that order as well.

6 Our review of the record in H040007 indicates that Andy provided a copy of the extrajudicial release agreement to the court in his opposition papers and that the trial court was fully aware of the document.

In opposition to the anti-SLAPP motions, Andy failed to present sufficient evidence that, if accepted by the trier of fact, showed that the order adding him as an alter ego judgment debtor was obtained by fraudulent concealment of the extrajudicial release agreement or any of its provisions.

Further, as already indicated, the September 23, 2010 order approving the parties' judicially supervised settlement set forth its terms, and the original money judgment entered against Sonasoft was expressly entered pursuant to the order, which was appended to the judgment. The superior court's record contained the September 23, 2010 order and the original judgment. We cannot assume that the trial court was unaware of them when it granted the postjudgment motion to amend the judgment to add Andy as an alter ego judgment debtor.⁷

7 Further, the issue whether Andy was an alter ego of Sonasoft was not resolved by litigation in the underlying lawsuit. After Sonasoft defaulted and a money judgment was entered against the company pursuant to the trial court's order approving the judicially supervised settlement, problems arose in satisfying the original judgment and the first amended judgment against Sonasoft. A thesis of the postjudgment motion to amend the judgment to add Andy as an alter ego judgment debtor was that equity required such amendment because Andy never intended to honor the parties' judicially supervised settlement that he had entered on behalf of Sonasoft and himself in April of 2010, as evidenced by, among other things, Sonasoft's failure to execute a note as required, Sonasoft's default after making only one timely payment, and its efforts to resist enforcement of the judgment. In opposition to the anti-SLAPP motions, Andy failed to demonstrate that under the particular circumstances, Vince was precluded as a matter of law from using a postjudgment procedure to add Andy as a judgement debtor on an alter ego theory.

In opposition to the anti-SLAPP motions, Andy failed to present sufficient evidence that, if accepted by the trier of fact, showed that the order adding him as an alter ego judgment debtor was obtained by fraudulent concealment of the parties' judicially supervised settlement or any of its terms.

Representations as to Board Minutes Documenting Resolution Approving Settlement

On appeal, Andy argues that in the underlying lawsuit, defendants falsely told the trial court that the original minutes of the corporate resolution approving the settlement were required to be produced by the extrajudicial release agreement but were never produced. Again, Andy conflates the judicially supervised settlement reduced to judgment with the extrajudicial release agreement.

In opposition to the anti-SLAPP motions, Andy contended: "Defendants continually used [a] claim of non-production of the original minutes to support a theory that the Sonasoft Board never approved the settlement, and assert[ed] that [those minutes had] 'never been produced' and therefore the Board [did not] keep minutes and had] never approved the settlement. . . . This claim is directly false." Andy also argued: "By repeatedly referencing the 'original' minutes, which were not required to be produced under the settlement agreement or the order approving the settlement, [d]efendants attempted to mislead the court into perceiving that Sonasoft was unaware of the settlement, and that Andy . . . individually had a hidden intention that the terms of the settlement agreement would never be performed, and because of that, approval by the Board had never been sought." He asserted that defendants misled the trial court by representing that the settlement agreement had never been approved by the Sonasoft Board.

Attorney Sarrail argued in a memorandum of points and authorities in support of the motion to add Andy as an alter ego judgment debtor: "Many years have now passed since [j]udgment [c]reditor's first request on or about April 10, 2010 to Andy . . . for the original minutes of the [b]oard of [d]irector's [sic] meeting in which it made a resolution to follow the terms of the [s]tipulated [s]ettlement [a]greement. Although their production was part of the [s]ettlement [a]greement, they have never been produced. In fact, [j]udgment [c]reditor's request for the minutes of [b]oard of [d]irector's [sic] meetings from 2006 to 2011 have also never been produced. The only reasonable inference is that the Board does not observe corporate formalities and does not record the minutes of its meetings."

In his July 25, 2013 declaration in support of the motion to amend the judgment to add Andy as an alter ego judgment debtor, Attorney Sarrail indicated that at the April 19, 2010 hearing on the parties' settlement, Andy agreed that once there was a formal board resolution approving the settlement, "he would forward a copy of the minutes" documenting that resolution to Vince's attorney. (Italics added.) The reporter's transcript of that hearing was attached as an exhibit to the declaration. The transcript reflects that Andy explicitly agreed as part of the settlement to forward a copy of those minutes documenting the resolution to his counsel so that his counsel could forward it to Vince's counsel.⁸

8 The April 19, 2010 transcript of the proceedings reflected that Andy also represented to the court and to Vince that he had "the authority of at least two out of the three member[s] [of the] [b]oard of [d]irectors, including the chairman of the [b]oard of Sonasoft[,] to enter into each and every term of [the parties' oral] settlement agreement." At the proceedings, Andy confirmed that the settlement required Sonasoft's board of directors to adopt "a formal resolution fully reported on the minutes of the board meeting, that Sonasoft agrees and is prepared to implement each and every term of this settlement agreement."

Attorney Sarrail further stated in his July 25, 2013 declaration that "[o]ver three (3) years later, the originals of those minutes have not been produced, despite [j]udgment [c]reditor's repeated requests . . . and subsequent court order." (Italics added.) He also stated in his declaration that "[s]ince entering into the [s]ettlement [a]greement in April of 2010, [j]udgment [c]reditor has repeatedly asked for the original of the [r]esolution by the [b]oard of [d]irectors ratifying the [s]ettlement [a]greement" and that "[a]s of the filing of this [d]eclaration, [j]udgment [c]reditor is not in receipt of this document." Attorney Sarrail asserted that "[t]he only reasonable inference at this point is that the copy[,] which has been produced, was originally prepared and executed recently, contrary to stated date." (Italics added.)

In his declaration in support of the reply to opposition to the motion to add Andy as an alter ego judgment debtor, Attorney Sarrail additionally stated: "At the [j]udicially [s]upervised [s]ettlement hearing (which occurred on the morning of the first day of trial), during voir dire by his attorney, Andy . . . stated that he understood that part of the [s]ettlement included that the [b]oard of [d]irectors would make a formal resolution, fully report it in the minutes of the board meeting, and that Sonasoft agreed and was prepared to implement each and every term of the settlement agreement . . . ." Attorney Sarrail stated that Andy "further agreed that upon completion of the minutes of that resolution, he would forward a copy of the minutes to his counsel so that his counsel could then forward them to [Vince's] attorney." (Italics added.) The reporter's transcript of the April 19, 2010 hearing was also attached to this declaration.

In a declaration submitted in opposition to the anti-SLAPP motions, Kelley stated: "The [b]oard members at the time the final settlement agreement was being negotiated knew of the settlement agreement that was reached between Sonasoft and Vince Khanna and agreed that it was in the best interests of the [c]ompany. When the final terms were settled, the [b]oard called a special meeting on April 20, 2010 and formally entered a resolution approving the settlement and reciting its material terms. . . . As required by such settlement agreement, I made a copy of such minutes to be provided to [p]laintiff's counsel. (Attached hereto as Exhibit 1.)" (Italics added.) He further stated that the original minutes were maintained at the principle place of business. A copy of the minutes attached as an exhibit appear to reflect that the three members of the board, which included Andy, adopted a resolution on April 20, 2010 approving settlement terms and authorizing Sonasoft's president to "execute such settlement agreement in the amount of $227,000 on behalf of the Company."

Andy stated in his declaration submitted in opposition to the anti-SLAPP motions: "Defendants have continuously claimed that the original [b]oard minutes discussing the [s]ettlement agreement was [sic] never produced. The [b]oard knew of the settlement agreement that was reached between Sonasoft and Vince Khanna and approved it. The settlement was discussed at the next [b]oard meeting on October 2, 2010, as a matter that has been resolved, there was a corporate resolution that the settlement terms was [sic] accepted by Sonasoft, and it was incorporated into the corporate minutes. As required by the settlement agreement Sonasoft entered into, W. Patrick Kelley prepared a true and correct copy of the minutes that was provided to [p]laintiff's counsel." It appears that Andy was referring to the extrajudicial release agreement, not the judicially supervised settlement, pursuant to which judgment was entered.

In a declaration in support of the reply to opposition to the anti-SLAPP motions, Attorney Sarrail stated that when he sought to add Andy as an alter ego judgment debtor, he "believed that Sonasoft or Andy . . . were [sic] required to produce the original minutes of the Sonasoft corporate resolution approving the settlement . . . to verify the formal acceptance and commitment by Sonasoft to the requirements of the settlement agreement." He stated that his belief was "based, in part, on an order of this court filed on July 11, 2013, in which [j]udgment [d]ebtor (Sonasoft Corporation) was ordered to produce ' . . . [o]riginal [b]oard of [d]irectors['] minutes for all meetings from March 1, 2010 to January 17, 2013.' " (Italics added.)

The July 11, 2013 order, which was attached to the declaration, stated that "Andy Khanna, President and CEO of Sonasoft Corporation, appeared on behalf of [j]udgment [d]ebtor Sonasoft Corporation for examination under oath on January 17, 2013 . . . ." The order explicitly required the judgment debtor, i.e. Sonasoft, to "either produce to [j]udgment [c]reditor, or serve and file objections to the production" of specified documents, including the "[o]riginal [b]oard of [d]irectors['] minutes for all meetings from March 7, 2010 to January 17, 2013."⁹

9 The July 11, 2013 order expressly prohibited Sonasoft as the judgment debtor from changing, altering, or moving its funds from its "current banking financial institutions" without further court order. The judgment debtor and Andy were ordered to return to court for a compliance hearing.

The motion to add Andy as an alter ego judgment debtor in the underlying lawsuit was filed shortly thereafter, on July 25, 2013. If read in a vacuum, the argument in support of that motion might be understood to mean that the parties' judicially supervised settlement required production of the original minutes documenting the board resolution approving it. But it's declarations and attached exhibits (including the reporter's transcript of the April 19, 2010 hearing) together made clear that the parties' judicially supervised settlement required Andy to provide a copy of those minutes documenting the board resolution approving the settlement¹⁰ and that a copy had been provided to Vince or his counsel at some point. In the absence of any contrary evidence, it must be presumed that in ruling on the motion, the trial court reviewed the evidence and read the argument in the context of the declarations and exhibits and understood that the judicially supervised settlement required Andy to provide only a copy of those minutes. (See Evid. Code, § 664 ["It is presumed that official duty has been regularly performed."].)

10 The September 23, 2010 order attached to Defilippis's declaration submitted in opposition to the anti-SLAPP motions also reflects this.

Attorney Sarrail indicated that he had repeatedly asked for the original of those minutes, which was not disputed, and that there had been an order requiring Sonasoft to produce the original minutes, which apparently was true. As stated, the evidence submitted on the anti-SLAPP motions indicated that shortly before the motion to add Andy as an alter ego judgment debtor in the underlying lawsuit, the trial court ordered Sonasoft to produce to the "[o]riginal [b]oard of [d]irectors['] minutes for all meetings from March 7, 2010 to January 17, 2013."

As already indicated, "[I]f the facts known to the litigant could support a set of inferences that would justify a favorable ruling on the merits, the litigant may rely on them in bringing suit. The interim adverse judgment rule applies even if the court later rules, after the evidence has been subject to adversarial testing, that the inferences have proved false." (Parrish, supra, 3 Cal.5th at p. 782.)

In opposition to the anti-SLAPP motions, Andy failed to provide sufficient evidence that, if accepted by the trier of fact, showed that the order granting the motion to add him as an alter ego judgment debtor was obtained by fraud or perjury as to Sonasoft's obligation to produce minutes documenting the board's resolution approving the parties' judicially supervised settlement.

Statements Regarding Third-Party Creditor Claims of Priority

On appeal, Andy claims that in support of the motion to add him as an alter ego judgment debtor, defendants falsely told the trial court that he and "his two sons claimed and still claim to be third party creditors." In his opposition to the anti-SLAPP motions, Andy contended that in support of motion to add him a judgment debtor, defendants had falsely claimed that in March of 2012 his sons and he "had filed claims of priority over Vince Khanna's judgment."

In his July 25, 2013 declaration in support of the motion to add Andy as an alter ego judgment debtor, Attorney Sarrail stated: "On or about March of 2012, [t]hird [p]arty [c]reditors (who included Andy Khanna himself and his sons as employees), filed a claim with the Santa Clara County Sheriff's Headquarters claiming [that] they had priority over monies [j]udgment [c]reditor Vince Khanna levied upon . . . in February [of] 2012. Judgment [d]ebtor Sonasoft attempted to argue to the court that because of its obligations to the [t]hird [p]arty [c]reditors, it was unable to pay [j]udgment [c]reditor monies [that] it owed him." (Emphasis omitted.) Attorney Sarrail indicated that "[t]he [c]ourt denied the [t]hird [p]arty [c]reditors' [p]etition . . . ."

In the same declaration, Attorney Sarrail further stated: "Notwithstanding the [c]ourt's denial and final adjudication on the merits of [the] [t]hird [p]arty [c]reditors' claim, Andy . . . continues to claim that there are third party creditors who have priority over money damages awarded [j]udgment [c]reditor. Andy . . . also continues to claim that Sonasoft cannot pay [j]udgment [c]reditor monies it owes him because of its debts to [t]hird [p]arty [c]reditors."¹¹

11 In the July 25, 2013 declaration, Attorney Sarrail also stated that in a 2011 declaration, Andy had claimed that "Sonasoft was in serious financial trouble and for this reason was unable to perform on its promise to pay according to the schedule in [the] Settlement Agreement." Andy's declaration in support of a motion to modify the order approving the judicially supervised settlement was attached to Attorney Sarrail's declaration. In it, Andy had stated that Sonasoft had "experienced cash flow problems" and was in "a tenuous financial situation."

Attached as an exhibit to Attorney Sarrail's July 25, 2013 declaration was an excerpt from the reporter's transcript of the OEX (order of examination) proceedings that took place on January 17, 2013. It reflected that a "Mr. Khanna," Mike Khanna, and Neil Khanna came forward at the proceedings when the court asked for third-party claimants to identify themselves.

In the reply to the opposition to the motion to amend to add Andy as an alter ego judgment debtor, Attorney Sarrail argued: "On or about twenty-four (24) months after entering into the [j]udicially [s]upervised [s]ettlement [a]greement, [t]hird [p]arty [c]reditors . . . filed a Petition for [t]hird [p]arty [c]laims wherein they claimed priority over monies held by Sonasoft that were due [j]udgment [c]reditor. [Andy] made no disclosures whatsoever at the time of the entering into the [j]udicially [s]upervised [s]ettlement [a]greement . . . that there were any alleged creditors who had claims or priorities over monies Sonsasoft owed [j]udgment [c]reditor Vince." (Original emphasis omitted; italics added.) Attorney Sarrail also contended: "Andy . . . has claimed and continues to claim that he is a [t]hird [p]arty [c]reditor (along with his son) who has priority over monies Judgment Creditor has levied upon. Andy . . . first made this claim nearly two years after entering the [j]udicially [s]upervised [s]ettlement. He never disclosed to [j]udgment [c]reditor or this [c]ourt at the time of [s]ettlement in April 2010 that he was, or others were, [t]hird [p]arty [c]reditors, an alleged fact that was material to the fair negotiation of the terms." (Emphasis omitted.) He further argued that Andy's third-party creditor claims were evidence of his "intention not to perform on his promises under the [j]udicially [s]upervised [s]ettlement and resulting [j]udgment."

Attached as an exhibit to Defilippis's declaration in support of opposition to the anti-SLAPP motions was a "Petition for Hearing on Third Party Claims" and the documents accompanying the petition. The petition had been filed by Mary Nolan, attorney for Sonasoft and the third-party claimants. The petition stated that "Romesh K. Japra, M.D., Ken Fishman and Joseph and Anne Rapp, [p]etitioners, are the third-party Claimants to property levied on . . . ." The petition further stated that "[o]n February 29, 2012 the Santa Clara County Sheriff [l]evy[ing] [o]fficer under a [w]rit of [e]xecution, issued by this court on September 23, 2011 . . . , levied on the property of Sonasoft Corporation, judgment debtor, and took possession of . . . money held in the business bank account at Fremont [B]ank."

The exhibit also contained the notices of third-party claims. One of the other documents accompanying the petition was a security agreement, with a stated execution date of June 24, 2011, "between Andy Khanna, Neil Khanna, Mike Khanna and Bilal Ahmed, (hereinafter collectively referred to as 'Secured Party') . . . and Sonasoft[] Corp. . . . (hereinafter referred to as 'Debtor)." The agreement recited that "Debtor owes certain, contingent obligations to the Secured Parties relating to their employment with the Debtor" and stated that "[a]s security for the [o]bligations, Debtor does hereby assign, grant, and set over to Secured Party, his or her successors and assigns, and agrees that Secured Party, his or her successors and assigns shall have a security interest in" collateral consisting of "[a]ll personal property owned by Debtor . . . ."

Another document accompanying the petition of the third-party claimants was a "UCC Filing Acknowledgement" from the California Secretary of State, dated June 24, 2011, stating that "[t]he California Secretary of State's Office has received and filed your document." The acknowledgement specified that the document was a "[f]inancing [s]tatement." The acknowledgement named Sonasoft as the debtor and named Andy, Neil Khanna, Mike Khanna, and Bilal Ahmed as the secured parties. The "UCC FINANCING STATEMENT" had a filing date of June 24, 2011 and named "Sonasoft Corp." as the debtor and Andy, Neil Khanna, Mike Khanna, and Bilal Ahmed as the secured parties.

Attached as another exhibit to Defilippis's declaration in support of opposition to the anti-SLAPP motions was an excerpt from the January 17, 2013 OEX reporter's transcript. As indicated above, the transcript showed a "Mr. Khanna," Mike Khanna, and Neil Khanna stepping forward as third-party claimants. On appeal, Andy admits that at a hearing in January of 2013, his sons and he were identified as creditors of Sonasoft. This hearing occurred prior to the motion to add him as an alter ego judgment debtor in the underlying lawsuit.

In Attorney Sarrail's declaration in support of the reply to the opposition to the anti-SLAPP motions, he stated: "When the papers were prepared and filed in support of and in reply to the opposition to the [']Motion to Amend Judgment Adding Andy Khanna as Alter Ego Judgment Debtor of Sonasoft Corporation['] in [c]ase No. 106-CV-074362 (Sonasoft Lawsuit), I believed that Andy Khanna and his sons, Mike Khanna and Neil Khanna, had claimed and were claiming that as [s]ecured [c]reditors of Sonasoft they had a priority interest in the monies that Vince . . . had levied upon." Attorney Sarrail stated that his belief was based on documentation that included "(1) the documents purporting to establish a 'Security Agreement . . . by and between Andy Khanna, Neil Khanna, Mike Khanna and Bilal Ahmed[] (hereinafter collectively referred to as "Secured Party") . . . and Sonasoft Corp. . . . (hereinafter referred to as "Debtor")' and a UCC Filing Acknowledgment [that] reflect[ed] the filing of the [s]ecurity [a]greement . . . and (2) Michael Khanna's representation to the court [on April 24, 2012] that he was a secured creditor of Sonasoft." (Emphasis and fn. omitted.)

The reporter's transcript of April 24, 2012 proceedings was attached to Attorney Sarrail's declaration in support of the reply to opposition to the anti-SLAPP motions. It reflected that Sonasoft's attorney at the time of those proceedings, Mary Nolan, told the court that she had filed notices of third party claims on behalf of four third-party claimants. Michael Khanna spoke up at the hearing on behalf of himself and other Sonasoft employees who were secured creditors, and he asked the court to consider them as well.

Attorney Sarrail apparently misspoke when he indicated that in about March of 2012, Andy and his two sons were among the third-party creditors who had formally claimed priority over the monies that had been levied upon. However, there was undisputed evidence that Andy, Neil Khanna, and Mike Khanna were creditors of Sonasoft with an ostensible security interest in Sonasoft's collateral and that Sonasoft was helping some third-parties claim security interests in the monies levied upon. Andy has not pointed to any evidence that he presented in opposition to the anti-SLAPP motions that supported an inference that Attorney Sarrail deliberately provided false evidence to the trial court. A mere showing of falsity is not enough to overcome the interim adverse judgment rule. (See Parrish, supra, 3 Cal.5th at p. 782.)

Other Purported Instances of Fraud or Perjury

In his appellant's opening brief, Andy additionally asserts that there were other false or perjured statements, misrepresentations, and deliberate omissions that misled the trial court in the underlying lawsuit, but he does not identify them. Having failed to elaborate or cite the record to support such claims, we deem them forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); see also Cal. Rules of Court, rule 8.204(a)(1)(B) & (C)¹²; Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523 (Howard) ["Conclusory assertions of error are ineffective in raising issues on appeal. [Citation.]"].) Likewise, legal claims made without legal analysis and without citation of authority are deemed forfeited. (Ibid.) In addition, contentions made for the first time in the appellant's reply brief were forfeited. "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief." (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)

12 All further references to rules are to the California Rules of Court.

In any case, Andy's claims that he specifically raises for the first time in his reply brief are without merit. Andy directs us to a statement in Sarrail's July 25, 2013 declaration submitted in support of the motion to add Andy as an alter ego judgment debtor. In the declaration, Sarrail asserted that "Sonasoft stated to the SEC [(Security and Exchange Commission)] that the lawsuit between Vince Khanna and Sonasoft had settled for $152,000 on June 30, 2009." In opposition to the anti-SLAPP motions, Andy argued that defendants had "repeatedly mischaracterized a letter to the [SEC]" as reporting a settlement of the case, whereas "the letter [had] actually said . . . that the Sonasoft Board had tentatively approved settling the case for $152,000." Andy now argues on appeal that Attorney Sarrail "intentionally left out the word 'tentative' in front of the word 'settlement[.]' "

In ruling on the motion to add Andy as a judgment debtor, the trial court presumably read and understood Sarrail's assertion as to Sonasoft's statement to the SEC in light of the excerpt from the transcript of Andy's deposition that was attached to Sarrail's declaration. Sonasoft's statement to the SEC concerning the parties' purported settlement had been read into deposition record: "In 2006, an ex-employee filed a lawsuit against the Company for wrongful termination. The Company has approved a tentative settlement with the ex-employee for the payment of $152,000 on June 30th, 2009. As of August 6, 2009, the tentative settlement with the ex-employee was not finalized or agreed upon by the both parties."¹³ Andy had admitted in his deposition testimony that he read the representation to the SEC before it was submitted, but that "[a]s of June 30, 2009, there was not any tentative settlement with Vince Khanna." (Italics added.) Andy had further acknowledged that the misstatement had been subsequently corrected by the company's SEC lawyer.

13 In opposition to the anti-SLAPP motions, Andy submitted a form S-1 Registration Statement, which contained a similar, earlier representation. In that filing, it was stated: "In 2006, an ex-employee filed a lawsuit against the company for wrongful termination. The Company has accrued a tentative settlement with the ex-employee for the payment of $152,500 in cash and an additional $2,000 worth of the Company stock as of December 31, 2007. As of May 5, 2008, the settlement was still pending and awaiting approval by the Board." (Italics added.)

Conclusion

We have thoroughly reviewed the pleadings, the declarations and attached exhibits in support and opposition to the anti-SLAPP motions, and the documents of which the trial court took judicial notice. We have fully considered all categories of purported fraud or perjury asserted by Andy in opposition to those motions. It is this court's conclusion that Andy failed to provide sufficient evidence that, if accepted by the trier of fact, showed that the order granting the motion to add him as an alter ego judgment debtor was obtained by fraud or perjury. In sum, Andy failed to overcome the interim adverse judgment rule at step two of the anti-SLAPP analysis.

As did the trial court, we find it unnecessary to resolve whether Andy adduced sufficient evidence that, if accepted by the trier of fact, showed that in the underlying lawsuit defendants had acted with malice in suing Andy, continuing the lawsuit against him, or in seeking to amend the judgment to add him as an alter ego judgment debtor. (See Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 ["[I]f the underlying claims were objectively tenable, the malicious prosecution claim fails, regardless of any evidence of malice on the part of the defendant."].)

H045555

In this case, Andy argues that the trial court erred in granting defendants' motions for attorney fees in their "entirety" and by not reducing the awards to reasonable amounts.¹⁴

14 Without any citation to the record and without any development of his argument, Andy asserts that (1) the amount of costs requested by the Sarrail defendants in their first motion "should have been stricken entirely, or substantially reduced," and that (2) the only costs requested by Vince that were related to the anti-SLAPP motion were the amounts paid to file the motion and the reply. We deem these perfunctory challenges to the awards of costs forfeited. (See Stanley, supra, 10 Cal.4th at p. 793; see also rule 8.204(a)(1)(B) & (C); Howard, supra, 187 Cal.App.4th at p. 523.)

I.

Procedural History

By orders filed on July 19, 2017, the trial court dismissed the malicious prosecution action against all defendants based on its granting of the anti-SLAPP motions and ordered that they were entitled to recover attorney fees and costs pursuant to section 425.16, subdivision (c).

On behalf of the Sarrail defendants, Ropers Majeski Kohn & Bentley (Ropers firm) filed a motion under section 425.16, subdivision (c)(1), for an award of attorney fees in the amount of $86,365.50 and costs in the amount of $1,267.90. The supporting declaration of Attorney Dean A. Pappas, a partner at the Ropers firm, was filed, together with attached exhibits, including invoices. The invoices reflect the date and nature of legal services rendered, the initials of the person performing the work, and the time expended. The Sarrail defendants did not ask the trial court to enhance the amount of $86,365.50 "by any particular multiplier."

Vince also filed a motion under section 425.16, subdivision (c)(1), asking for an award of attorney fees in the amount of $49,920 and costs in the amount of $947.18. The supporting declaration of attorney Jonathan S. Larsen, a partner at the Sarrail firm, was filed, together with attached exhibits, including invoices. The invoices reflect the date and nature of legal services rendered, the initials of the person performing the work, and the time expended. Vince did not ask the trial court to enhance the amount of $49,920 "by any particular multiplier."

Andy filed opposition to the motions for attorney fees and costs. In support of opposition to each motion, Andy filed a declaration of Defilippis, his attorney.

A hearing was held on October 12, 2017. The matter was taken under submission.

In a written order filed on December 26, 2017, the trial court granted the two motions for attorney fees and costs pursuant to section 425.16, subdivision (c)(1). In the order, the court stated that defendants had "met their burden of establishing their entitlement to an award of attorney's fees, and of documenting the time spent and [the] hourly rates charged." The court found that Andy's "opposition and objections to the amounts claimed [were] not sufficient to defeat defendants' motions or the amounts requested, in whole or in part."

The Sarrail defendants filed another motion for an award of attorney fees and costs, asking for an additional award of attorney fees of $33,007.50 and costs of $325.15 for litigating their first motion for attorney fees and costs. They did not ask the trial court to enhance the requested fee amount of $33,007.50 "by any particular multiplier." Another declaration from Attorney Pappas was filed, together with attached exhibits, including invoices. The invoices reflect the date and nature of legal services rendered, the initials of the person performing the work, and the time expended.

The motion was heard on April 10, 2018. We do not have a reporter's transcript of that hearing. According to Andy, the court took the matter under submission.

In a written order filed on June 20, 2018, the court granted the Sarrail defendants' motion for additional attorney fees and costs "in its entirety."

No defendant has challenged the adequacy of Andy's notices of appeal or claimed that they fail to give notice that Andy is appealing from the orders granting the motions for attorney fees and costs. " '[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' (Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also rule 8.100(a)(2) ['notice of appeal must be liberally construed'].)" (In re Joshua S. (2007) 41 Cal.4th 261, 272.) "An incorrect date in the notice of appeal will not necessarily invalidate it. [Citation.]" (Holden v. California Employment Stabilization Commission (1950) 101 Cal.App.2d 427, 431.)

Appellant's appendix contains a copy of the notice of entry of the December 26, 2017 order, which was dated January 2, 2017, but it was not file stamped. A copy of the initial notice of appeal contained in appellant's appendix reflected that Andy was appealing from an order after judgment entered on January 4, 2018, but the copy of the notice of appeal was not file stamped. The copy of the notice of appeal lodged in this court showed that this notice of appeal was filed on January 7, 2018.

Appellant's appendix contains a copy of the notice of entry of the June 20, 2018 order, dated June 26, 2018, but it was not file stamped. A copy of an amended notice of appeal contained in an appellant's appendix reflected that Andy was appealing from orders after judgment entered on January 4, 2018 and on June 26, 2018. The amended notice of appeal was filed on June 26, 2018.

We conclude that Andy's notices of appeal may be liberally construed to refer to the order entered December 26, 2017 and the order entered June 20, 2018 since there is no indication that any defendant was prejudicially misled. However, we do not condone the sloppiness in the preparation of the notices of appeal.

II

Discussion

A. Governing Law

Section 425.16, subdivision (c)(1), provides, with an exception not here applicable, that "in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." "[S]ection 425.16 permits the use of the so-called lodestar adjustment method under [the California Supreme Court's] long-standing precedents, beginning with Serrano v. Priest (1977) 20 Cal.3d 25 (hereafter Serrano III)." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).)

In awarding attorney fees under the lodestar adjustment method, a court begins with the " 'lodestar,' " which has been described as "the number of hours reasonably expended multiplied by the reasonable hourly rate." (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).) "The reasonable hourly rate is that prevailing in the community for similar work. [Citations.]" (Ibid.; see Ketchum, supra, 24 Cal.4th at p. 1132 ["the lodestar is the basic fee for comparable legal services in the community"].) "There is no requirement that the reasonable market rate mirror the actual rate billed. . . . ' "The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]" [Citation.]' [Citations.]" (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701.)

In an appropriate case, the trial court may exercise its discretion under the lodestar adjustment method "to include a fee enhancement [(a multiplier)] to the basic lodestar figure for contingent risk, exceptional skill, or other factors . . . ." (Ketchum, supra, 24 Cal.4th at p. 1138.) In addition, "[t]o the extent a trial court is concerned that a particular award [would be] excessive, it has broad discretion to adjust the [requested] fee downward or deny an unreasonable fee altogether." (Ibid., fn. omitted.) We note, however, that none of the motions at issue asked the trial court to enhance the requested attorney fees award by a particular multiplier, and the trial court did not apply a multiplier to those requests.

"We review an anti-SLAPP attorney fee award under the deferential abuse of discretion standard. (Ketchum, supra, 24 Cal.4th at p. 1130; [Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242,] 1249.)" (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322 (Christian Research Institute).) The abuse of discretion standard of review "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) "The ' "experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while [the judge's] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1132.)

"An attorney fee dispute is not exempt from generally applicable appellate principles . . . ." (Christian Research Institute, supra, 165 Cal.App.4th at p. 1322.) " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); see Ketchum, supra, 24 Cal.4th at p. 1140; see also Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488 [" '[Attorney] [f]ees approved by the trial court are presumed to be reasonable, and the objectors must show error in the award.' [Citation.]"].) "The burden is on the party complaining to establish an abuse of discretion." (Denham, supra, 2 Cal.3d at p. 566.) B. Analysis

As to defendants' initial motions, Andy claims that "the sheer amount [sic] of hours claimed to have been expended" "far exceeded what could be considered reasonable for a straight forward [sic] singular issue of malicious prosecution stemming from the one event where [d]efendants added [him] as a [j]udgement debtor." Andy maintains that "the lower court abused its discretion in awarding . . . attorneys' fees . . . given that [defendants'] requests were unreasonable and excessive, and in the case of Vince Khanna, outright exorbitant and redundant, as they simply plagiarized the briefing of the [other defendants]." Andy argues that the trial court rubber-stamped all the motions for attorney fees.

Without any supporting citations to the record, Andy claims that each of the motions filed by the Roper firm on behalf of the Sarrail defendants' was "unreasonable on its face." Without any supporting citations to the record, he states as to both motions filed that "[t]he amount of work each partner claims to have put in is on its face duplicative." Andy also argues, without any supporting citation to the record, that "Vince Khanna's fee request was entirely unreasonable on its on face, as [his attorneys] simply plagiarized the motions filed . . . on behalf of [the other defendants]" by the law firm representing them.

1. The Anti-SLAPP motions were not Shown to be Simple or Routine as Asserted by Andy

As if something becomes true by sheer repetition, Andy repeatedly asserts that the anti-SLAPP motions were neither factually nor legally complex. He claims that the entire underlying lawsuit was not at issue and that his malicious prosecution action was narrowly focused on only Vince's motion to add him as an alter ego judgment debtor. These assertions are inaccurate.

As evident from the complaint's allegations, the malpractice action attacked defendants' conduct in filing and maintaining the underlying lawsuit against Andy and the postjudgment efforts to add him as an alter ego judgment debtor. The underlying lawsuit was protracted and complex.

As discussed above, in response to defendants' anti-SLAPP motions Andy described thirteen broad and multifaceted categories of wrongdoing by defendants. Andy argued that defendants were barred from relying on the interim adverse judgment rule to defeat his malicious prosecution action because the second amended judgment was obtained by fraud and perjury.

In a declaration in support of the Sarrail defendants' reply to the opposition to the motion for attorney fees and costs, Pappas explained that he was "asked to take responsibility for the preparation of the papers to be filed in support of the . . . anti-SLAPP motion" because of their active engagement in the "underlying litigation for nearly 11 years," "the complexity of the issues regarding the judgment in the [underlying lawsuit], the potentially unsettled law regarding the application of the interim adverse judgment rule to the motion to amend the judgment in the [underlying lawsuit], the contentious history of the [underlying lawsuit], and [his law firm's] conclusion that the anti-SLAPP motion could likely lead to appellate proceedings."

Pappas indicated in the declaration that "[i]n order to evaluate the legal issues and prepare the text of the papers filed in support of the anti-SLAPP motion it was necessary for professionals at [the Roper firm's] office to review and analyze the arguments and evidence potentially related to the motion to [add] Andy Khanna as a judgment debtor in the [underlying lawsuit]." He indicated that the record reviewed included the appellants' and the respondent's appendixes, the reporter's transcripts, the parties' briefs and requested supplemental briefs in H040007, this court's opinion in that case, Andy and Sonasoft's petition for rehearing, and Sonasoft's petition for review. Pappas indicated that he selected the 22 documents that were submitted with the Sarrail defendants' request for judicial notice filed in support of the anti-SLAPP motion.

In a declaration in support of Vince's reply to the opposition to the motion for attorney fees and costs, Larsen stated that the underlying lawsuit "included a record on appeal of over 2000 pages, briefing submitted by appellant and respondent of over 170 pages, and a [p]etition for [r]eview by the California Supreme Court prepared by [p]laintiff's counsel Steve M. Defilippis." Larsen further explained: "The underlying case has a unique and complex procedural background. It was necessary in light of this background to evaluate whether an [anti-SLAPP] motion was appropriate, especially in light of Andy's claim in the malicious prosecution complaint that the order adding Andy as a judgment debtor was obtained by means of perjury or fraud. Material evidence identified in the appellate record of the underlying action and submitted by Vince in support of the anti-SLAPP motion included numerous exhibits. The complexity of the facts material to [an] analysis of the issues is further illustrated by submission of an additional 409 pages of exhibits with the [d]eclaration of Steve M[.] Defilippis in [s]upport of [o]pposition to [d]efendants' [s]pecial [m]otion to [s]trike in addition to the testimony and additional documentary evidence submitted by declarations of Douglas Mackallor, W. Patrick Kelly, Sr., Jim Gilmer and Andy Khanna in support of the opposition to the anti-SLAPP motion."

Andy fails to show that the anti-SLAPP motions were simple or routine.

2. Hourly Rate

Defendants asked for attorney fees calculated by multiplying the number of hours expended by the appropriate rates for services. The Sarrail defendants asked the trial court to use $600.00 as the reasonable hourly rate for the partners' services, $300.00 as the reasonable hourly rate for the associate's services, and $165.00 as the reasonable hourly rate for the paralegal's services. Vince asked the trial court to use $600 as the reasonable hourly rate for the partners' services.

As he did below, Andy argues that the trial court abused its discretion by accepting "the claimed hourly rates" and making no downward adjustment because the " 'market rate' focused exclusively on locality" and "took no other factors into consideration in fixing reasonable attorney's fees." In making this argument, Andy relies on Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), which involved an attorney fee award under section 1021.5 (codifying private attorney general doctrine).

In Graham, the California Supreme Court reviewed the general principles of the lodestar adjustment method: "[U]nder our decision in Serrano III, 'a court assessing attorney fees begins with a touchstone or lodestar figure, based on the 'careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.' [Citation.] We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method ' "is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts." ' [Citation.] In referring to 'reasonable ' compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; 'padding' in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]" (Graham, supra, 34 Cal.4th at p. 579.)

In Graham, the Supreme Court quoted from Ketchum, supra, 24 Cal.4th at page 1132: " 'Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including . . . (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.' " (Graham, supra, 34 Cal.4th at p. 579, italics added.) Graham reiterated that "[t]he ' "experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while [the court's] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' [Citation.]" (Ibid.)

Andy has not demonstrated by specific reference to the record that the trial court adjusted the basic hourly fee upward or used any multiplier to enhance the challenged attorney fee awards. He repeatedly makes the conclusionary assertion that the rates of $600 for a partner, $300 for a two-year associate, and $165 for a paralegal are "blatantly unreasonable" and also asserts that the hourly rates were "grossly inflated." In support, he points to only the declarations of his attorney.

Pappas indicated in his declaration filed in support of the Sarrail defendants' first motion for attorney fees and costs that he had over 30 years of civil litigation experience at the time of the services reflected in the three invoices attached as exhibits to his declaration. Pappas stated that John G. Dooling, who was also a partner at the Ropers firm, had 25 years of civil litigation experience at the time of the services reflected in those invoices. Pappas also stated that in obtaining the dismissal of the malicious prosecution action, he had performed 78.3 hours of services; Dooling had performed 58.3 hours of services; an associate, who had less than two years of civil litigation experience, had performed 13.2 hours of services; and a paralegal had performed 2.7 hours of services.

A copy of the "USAO Attorney's Fees Matrix - 2015 - 2017" was attached as an exhibit to Pappas's declaration.¹⁵ For civil cases in the District of Columbia (D.C.) federal courts during the period of June 1, 2016 to May 31, 2017, the matrix indicated that $581 was the hourly rate for an attorney with over 31 years of experience; $543 was the hourly rate for an attorney with 21 or more years but less than 31 years of experience; $291 was the hourly rate for an attorney with less than two years of experience; and $157 was the hourly rate for a paralegal.

15 The matrix contained an explanatory note that read, "This matrix of hourly rates for attorneys of varying experience levels and paralegals/law clerks has been prepared by the Civil Division of the United States Attorney's Office for the District of Columbia (USAO) to evaluate requests for attorney's fees in civil cases in District of Columbia courts."

Copies of portions of the May 2016 Occupational Employment Statistics issued by the U.S. Bureau of Labor Statistics (BLS) regarding lawyers (Section 23-1011, Lawyers) and paralegals (Section 23-2011, Paralegals and Legal Assistants) were also attached as exhibits to Pappas's declaration. The statistics disclosed that D.C. and California were two of five "Top [P]aying States" for both occupations. In addition, they showed that the hourly mean wage in the San Francisco-Redwood City-South San Francisco metropolitan area or the San Jose-Sunnyvale-Santa Clara metropolitan area was higher than in the D.C. metropolitan area¹⁶ for both lawyers and paralegals.

16 This area was identified as "Washington-Arlington-Alexandria, DC-VA-MD-WV."

In addition, copies of excerpts of the "2016 Real Rate Report: Lawyer Rates, Trends and Analysis" published by Wolters Kluwer's ELM Solutions and CEB (Real Rate Report) were attached as an exhibit to Pappas's declaration. The Real Rate Report examined law firm rates and set forth rates by various criteria, including location, experience, legal role (ie., partner, associate or paralegal), whether the matter involved litigation, and practice area. The report showed, among other things, that in San Jose, California, the 2015 median rate was $849.31 for partners with 21 or more years of experience, $722.29 for partners with fewer than 21 years of experience; and $333.48 for associates with fewer than three years of experience. In addition, the report reflected that in San Jose, California, the 2015 median rate was $729 for partners practicing commercial law and $637.50 for partners practicing labor and employment law. The 2015 median real rate for partners providing litigation services in San Jose, California, was $717.83.

Pappas stated in his declaration, "I have reviewed the invoices and attached materials and declare that $33,007.50 is a reasonable market value of the fees to compensate for the services provided to establish the fees . . . to obtain the dismissal of the action pursuant to . . . section 425.16."

The declaration of Jonathan S. Larsen was filed in support of Vince's motion for attorney fees and costs. Larsen stated that he was admitted to practice law in 1987 and had "concentrated on civil litigation and insurance coverage matters" in his practice. Larsen stated that Attorney Sarrail was "the managing partner of [the Sarrail law firm] and had over 40 years of experience." Redacted copies of invoices for legal services rendered were attached as an exhibit to Larsen's declaration. The invoices reflected that Attorney Sarrail provided 2.70 hours of services and Larsen provided 80.50 hours of services. Also attached to Larsen's declaration were (1) a copy of the "USAO Attorney's Fees Matrix - 2015 - 2017," (2) copies of portions of the May 2016 Occupational Employment Statistics issued by the BLS (Section 23-1011, Lawyers), and (3) copies of excerpts from the Real Rate Report.

In his declaration Larsen stated that he had "reviewed the invoices and attached materials," and he declared that "$49,920.00 is a reasonable market value of the fees to compensate for the services provided to prevail" on Vince's anti-SLAPP motion. He also stated that $947.18 had been incurred in costs.

Another declaration of Pappas was submitted in support of the Sarrail defendants' motion for additional attorney fees and costs for litigating their first motion. In this declaration, Pappas stated that he had performed 46.9 hours of services; that Dooling had performed 7.7 hours of services; and that a paralegal had performed 1.5 hours of services. Five invoices were attached to his declaration as exhibits.

In addition to the invoices, the same materials provided in support of the first motion were attached as exhibits to Pappas's declaration. Those included (1) a copy of the "USAO Attorney's Fees Matrix - 2015 - 2017," (2) copies of portions of the May 2016 Occupational Employment Statistics issued by the BLS for lawyers and paralegals, and (3) copies of excerpts from the Real Rate Report.

Pappas stated in the same declaration, "I have reviewed the invoices and attached materials and declare that $33,007.50 is a reasonable market value of the fees to compensate for the services provided to establish the fees . . . to obtain the dismissal of the action pursuant to . . . section 425.16."

Defilippis's declarations were submitted in opposition to defendants' motions for attorney fees and costs. In those declarations, Defilippis stated that he had practiced law in Santa Clara County for over 32 years and that he was "not aware of any attorney in the area that charge[d] hourly rates of $600 an hour for this type of work." In each declaration, Defilippis stated that in his experience "the average hourly rate of [i]nsurance [d]efense [a]ttorneys, including firms such as the Ropers Office that is involved in this case, in this area is approximately $175 to $225 an hour." He asserted that the average hourly rate of privately retained counsel who were not performing insurance defense was $250 to $375 an hour. In each of those declarations, Defilippis opined that the trial court should make a specified, much smaller attorney fees award. Also, in his declarations, Defilippis stated that in his experience "the average hourly rate for associate attorneys is not more than $225." He provided no documentary evidence to support the hourly rates that he espoused.

The trial court was not required to accept Defilippis's statements or opinions. As indicated, "a trial court has its own expertise in the value of legal services performed in a case [citations] and it may rely on its own familiarity with the local legal market in setting the hourly rate. [Citation.]" (Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 899; see Ketchum, supra, 24 Cal.4th at p. 1132; PLCM, supra, 22 Cal.4th at p. 1096.) Apparently, the court was not convinced by Defilippis's assertions. Andy has not demonstrated that the trial court abused its discretion by using excessive or unreasonable hourly rates.

3. Alleged Block Billing

Without any citation to the record, Andy contends, as he did below, that the trial court "should have used its discretion to deny recovery of block billed entries." The phrase "block billing" refers to billing for "a block of time" expended on multiple tasks "rather than itemizing the time spent on each task." (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010 (Heritage Pacific Financial, LLC).) As pointed out in both respondent's briefs, Andy has failed to identify any particular entry that constituted block billing.

Moreover, "block billing is not objectionable 'per se,' though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request. [Citation.] Block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation . . . from work that does not. [Citation.]" (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830; see Heritage Pacific Financial, LLC, supra, at pp. 1010-1011 ["Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not. [Citations.]"].)

The present lawsuit involved no causes of action other than malicious prosecution, which the anti-SLAPP motions succeeded in striking. We also note that the Ropers firm was not involved in the underlying lawsuit. Andy has failed to establish that there were block-billed entries or that some of the legal services identified in any such entries were not compensable pursuant to section 425.16, subdivision (c)(1). 4. Alleged Unnecessary, Redundant, or Excessive Hours

Andy also argues that the trial court should have struck each of the three attorney fee requests or at least reduced the amount awarded because "the number of hours spent and the tasks performed were unnecessary, redundant, and excessive." (Emphasis omitted.) Without any citation to record, Andy repeatedly asserts that the trial court merely rubber-stamped those attorney fee requests.

As Andy acknowledges, "[t]he reasonableness of attorney fees is within the discretion of the trial court." (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) In the absence of contrary evidence, we presume that the trial court properly exercised its discretion. (See Evid. Code, § 664; People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115 ["where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order"].) It is up to an appellant to show otherwise.

In opposition to the Sarrail defendants' first motion for attorney fees and costs, Defilippis argued on behalf of Andy that "[t]he amount of work each partner claims to have put in is on its face duplicative." The argument was not supported by any citation to the record. In a responding declaration, Pappas stated, "The professional services reflected in the invoices submitted as exhibits to my declaration filed with the moving papers in support of this motion do not reflect a duplication of services by professionals at this office."

In opposition to the Sarrail defendants' motion for additional attorney fees and costs, Defilippis argued on behalf of Andy that "[t]he amount of work each partner claims to have put in is on its face duplicative." Again, the argument was not supported by any citation to the record.

On appeal, Andy makes the same duplication argument as to each of the Sarrail defendants' fee motions, asserting that the "amount of work each partner claims to have put in is on its face duplicative." Andy also suggests that some of the work should have been performed by lower-level associates or paralegals, who would have billed at lower rates. As he did below, he provides no citations to the record to support his arguments regarding duplication of attorney effort or the unnecessary use of more experienced and costly counsel. Neither does he develop those conclusory arguments. Consequently, we deem those arguments forfeited. (See rule 8.204(a)(1)(C); Stanley, supra, 10 Cal.4th at p. 793.) In any case, Andy's conclusory assertions do not establish that the trial court abused its discretion.

Citing Lafayette Morehouse, Inc. v. Chronicle Publishing Company (1995) 39 Ca1.App.4th 1379 at page 1383 (Lafayette II) and without any citation to the record, Andy further argues that the trial court abused its discretion by awarding attorney fees to the Sarrail defendants for "the time spent meeting and conferring with [Andy's] attorney and the time spent on the ex-parte [sic]" because the anti-SLAPP statute's provision for recovery of attorney fees (§ 425.16, subd. (c)) applies only to the motion to strike, not to the entire action.

Citing Lafayette II, Andy makes a similar argument with respect to the attorney fee award to Vince. Andy tells this court that "[r]ather than list[ing] the hours that should be stricken," he is listing the hours that he accepts as reasonable and related to anti-SLAPP litigation. He lists billing entries totaling 13 hours, again without any citation to the record. He asserts that attorney fees for the remaining hours "should have been stricken" because the anti-SLAPP statute's attorney fee provision (§ 425.16, subd. (c)) applies only to the motion to strike, not to the entire action. Without any citation to the record, Andy contends that the trial court should have disallowed Vince's recovery of attorney fees for 70.2 hours because they "dealt exclusively with either normal work-up of the file such as reviewing the complaint, issues with service, reviewing documents, unspecified work on 'file materials,' conferring with co-counsel, and events that occurred after the Anti-SLAPP motion hearing such as the [c]ase [m]anagement [c]onference." He maintains that these were "all matters that the Sarrail [l]aw [f]irm already needed to do in its capacity as a defendant" in the malpractice action.

First, Andy has forfeited his conclusory arguments made without specific citation to the record. (See Stanley (1995), supra, 10 Cal.4th at p. 793; see also rule 8.204(a)(1)(B) & (C).) Second, the Sarrail defendants were separately represented by the Ropers firm, who performed legal services for them. The fact that Attorney Sarrail and the Sarrail firm were also defendants in the malpractice action did not bar Vince from recovering reasonable attorney fees for the legal services performed on his behalf by the Sarrail firm. Third, the entire action was subject to defendants' anti-SLAPP motions. Andy's complaint alleged only one cause of action (for malicious prosecution); there were no surviving causes of action as sometimes occurs in other anti-SLAPP cases; and defendants were entitled to dismissal of the entire action once the court granted their anti-SLAPP motions.

"Section 425.16, subdivision (c), is intended to compensate a defendant for the expense of responding to a SLAPP suit. [Citation.] To this end, the provision 'is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.' [Citation.]" (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22.) Andy has failed to demonstrate that the trial court abused its discretion by awarding attorney fees for legal services unrelated to the anti-SLAPP motions or the recovery of prevailing party attorney fees. (See § 425.16, subd. (c); cf. Lafayette II, supra, 39 Cal.App.4th at p. 1384 ["The transcript of the fee hearing leaves no doubt that the court awarded costs and fees for the entire case and not just the motion to strike."]; see id. at p. 1381 ["This case is the follow-up to Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855" [(Lafayette I)]]; Lafayette I, supra, 37 Cal.App.4th at p. 861 ["As eventually amended, the complaint alleged seven causes of action; however, only one of them is relevant on the present appeal [from order granting anti-SLAPP motion as to the libel cause of action]."].)

Andy also maintains—without any citation to the record—that Vince's attorney fee request was "outright exorbitant and redundant" because his "motion was simply a plagiarized version of Dooling's motion" and that consequently the trial court "abused its discretion by failing to find that [Vince's] fee request was entirely unreasonable on its face." He made the same argument below. Since neither Andy's opposition papers below nor his appellate brief supported the plagiarism argument by legal analysis and a specific citation to the record, the argument was forfeited. (See Stanley, supra, 10 Cal.4th at p. 793; see also rule 8.204(a)(1)(B) & (C).) "It is not the function of this court to comb the record looking for the evidence or absence of evidence to support [appellant's] argument. [Citation.]" (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879.) We note, however, that many fewer attorney hours were claimed to have been expended in litigating Vince's anti-SLAPP motion than in litigating the Sarrail defendants' anti-SLAPP motion.

With respect to the Sarrail defendants' motion for additional attorney fees and costs for litigating the first motion, Andy argues on appeal—without any specific citation to the record: "Given Mr. Dooling['s] and Mr. Pappas['s] decades of experience, and given the extreme resources of their firm, the original motion for attorney's fees and the fees on fees motion were not original motions that were drafted from scratch, requiring new research, and were merely boilerplate and based on previous motions." He further contends: "The attorney's fees motion was not the first attorney's fees motion drafted by this firm, or let alone [d]efendants' counsel. It was a boilerplate motion with the law and legal analysis previously researched, and the work of 'filling in the blanks' could have been done by an associate and not by two (2) partners."

In his declarations in opposition to each motion for attorney fees and costs, Defilippis made similar boilerplate statements without any showing of personal knowledge. In those declarations, Defillippis asserted that "[a]ny experienced defense firm" has a boilerplate motion that can be readily modified for a specific case. Andy has failed to establish that the law firms representing defendants had boilerplate motions that could have been easily adapted to this case or that the motions were overly lawyered and consequently defendants' attorney fee claims were inflated.

In sum, Andy has failed to demonstrate that the trial court abused its discretion by making awards of attorney fees that included compensation for unnecessary, redundant, or excessive services or hours.

DISPOSITION

In H044973, the trial court's June 15, 2017 order granting the defendants' anti-SLAPP motions is affirmed.

In H045555, the trial court's December 26, 2017 order granting defendants' motions for attorney fees and costs and its June 20, 2018 order granting the Sarrail defendants' motion for attorney fees and costs are affirmed.

In both H044973 and H045555, Andy Khanna shall bear all costs on appeal.

/s/_________

ELIA, ACTING P. J. WE CONCUR: /s/_________
GROVER, J. /s/_________
DANNER, J.