Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, No. 30-2009-00305278 Luis A. Rodriguez, Judge.
Hart, King & Coldren, Robert S. Coldren, John H. Pentecost and Rhonda H. Mehlman for Defendants and Appellants.
Mathews Funk & Associates, Stanton T. Mathews and Ronald B. Funk for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendants Earl Jordan, Paul Persiani, Jordan Biologics, Inc., OneGlove, LLC, and Arcoa Industries, LLC (Arcoa), (collectively, defendants) appeal from the trial court’s orders denying their anti SLAPP motion, pursuant to Code of Civil Procedure section 425.16, seeking to strike plaintiff Rhonda Persiani’s fraud claims against them. (All further statutory references are to the Code of Civil Procedure.) Rhonda’s fraud claims were based on allegations that she had a community property interest in a royalty agreement entered into by Paul (her now former husband) and Jordan Biologics, Inc., and that defendants made false promises and misrepresentations, and otherwise concealed material information from her with the intent to deprive her from realizing the benefit of that interest. In denying the anti SLAPP motion, the trial court concluded defendants failed to carry their burden of showing Rhonda’s fraud claims arose out of protected activity within the meaning of the anti SLAPP statute.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
We use Paul Persiani’s and Rhonda Persiani’s first names to avoid confusion and intend no disrespect. (Nairne v. Jessop Humblet (2002) 101 Cal.App.4th 1124, 1126, fn. 1.). We refer to them collectively as the Persianis.
We affirm. Defendants failed to make the threshold showing the fraud claims arose from protected activity. Although the complaint alleged the fraud claims were supported in part by evidence obtained through the discovery process in prior litigation involving some or all of the parties, the fraud claims did not arise from any protected activity. This is not a close case as to the unprotected nature of the conduct underlying the fraud claims. Defendants’ anti SLAPP motion was properly denied.
BACKGROUND
I.
Summary of the Parties’ Prior Litigation History
A.
The Royalty Agreement and the Persianis’ Marital Dissolution Action
Paul and Rhonda were married in 1997. Sometime before June 2002, the Persianis’ neighbor, Jordan, asked Paul for help in designing a dispenser for pharmaceutical gloves. Paul created a design for the dispenser on the Persianis’ home computer. Paul and Jordan applied for and ultimately received patents for the dispenser as well as “the method they used to fold the gloves” (the patents).
According to Paul, he only helped Jordan put his designs into a “Computer Aided Design” format and that the glove dispenser and the method of folding the gloves were entirely Jordan’s idea. Paul contends his name appeared on the applications for the patents on the advice of counsel.
While they were married, Paul showed Rhonda a draft of a royalty agreement between him and Jordan Biologics, Inc. According to Rhonda, Paul explained to her that because he “was an inventor of the product, ” he was entitled to royalties. Rhonda stated she had concerns about the agreement and asked Paul not to sign it without her knowledge. Paul stated that after thoroughly reviewing the royalty agreement, Rhonda did not have any comments or suggest any changes and approved his signing it.
Paul and Jordan went on a trip to China, which Rhonda understood was related to the product subject to the patents. After Paul returned, Rhonda stated he told her that “the product was going to be very successful” and that if something happened to him, she would be 50 percent owner of the royalties and the patents. Paul denied ever telling Rhonda the product was going to be successful as he did not know whether it would make it to production.
In February 2003, according to Rhonda, she asked Paul about the royalty agreement and he told her he had not signed it.
In March 2003, Paul and Rhonda separated. During the divorce proceedings, Rhonda received a copy of the royalty agreement Paul had signed in June 2002. The royalty agreement stated that Paul “has been involved with Jordan Biologics and its principals in developing a certain product known as and trademarked as the ‘Glove Safe’ which is a patented dispenser(s) for disposable gloves, which such patent covers the dispenser(s) and the folding process associated therewith (collectively the ‘Product’)” and that “the parties wish to enter into this Royalty Agreement to set forth the terms and conditions pursuant to which, as full compensation for [Paul]’s contribution to the Product, Jordan Biologics shall make royalty payments to [Paul] as further set forth herein.” The royalty agreement further stated, “Jordan Biologics hereby agrees to pay [Paul] royalty payments... in the sum of three percent (3%) of Net Sales..., attributable to the Product wherever it is marketed on a worldwide basis, for five (5) years from the date that sales of the Product commence. In the event that sales of the Product on a worldwide basis generate more than Three Million Dollars ($3,000,000) annually during any of the first five (5) years that this Royalty Agreement is in effect, then such Royalty Payments shall continue for fourteen (14) years from the date of patent approval.”
We too refer to the subject of the royalty agreement as the product.
In August 2003, Paul signed two addenda to the royalty agreement, which amended the agreement to state, inter alia, that Jordan Biologics agreed to pay Paul royalty payments in the sum of 3 percent of “Net Revenues, ” as defined in the agreement, as opposed to “Net Sales.”
Following trial in the marital dissolution action, in March 2004, the court issued an order for the partial division of property in which the court stated its findings that the royalty agreement and addenda constituted the Persianis’ community property and that “[n]o payments have been made to the PERSIANI[]s to date pursuant to the Royalty Agreement.” The court further ordered that it reserved jurisdiction over the royalty agreement and its addenda and that no payments shall be made under the royalty agreement to the Persianis without prior written agreement of all parties or an order of the court. Judgment was entered in the divorce proceeding in March 2004, which expressly incorporated the court’s order for the partial division of property.
In November 2005, Rhonda’s counsel informally requested documents of Jordan Biologics, regarding, inter alia, sales of the product. Paul’s attorney wrote back, stating in part: “There have been no sales.”
In December 2005, Rhonda served an inspection demand on Jordan Biologics, seeking, inter alia, the production of documents related to sales of the product. Jordan Biologics served a response asserting its objections to the inspection demand. Rhonda did not move to compel further responses or the production of responsive documents.
B.
Rhonda Files Lawsuits Related to Her Interest in the Royalty Agreement.
In December 2007, Rhonda filed a lawsuit against Jordan, Jordan Pharmaceuticals, Jordan Biologics, OneGlove, Arcoa, and Paul for breach of contract and fraud. She also sued Paul for breach of fiduciary duty. She dismissed this lawsuit on March 1, 2007, without prejudice.
In April 2008, Rhonda filed another lawsuit against Jordan, OneGlove, Jordan Biologics, Arcoa, and Arcoa Industries, Inc., asserting a claim for tortious interference with economic advantage against all defendants, a claim for unfair business practice (infringement of patent rights) against all defendants but Arcoa Industries, Inc., and a claim for fraud against Jordan only. The complaint alleged, inter alia, that on April 18, 2008, “Defendants Earl Jordan and Arcoa Industries, Inc. through its Chief Executive Officer... falsely misrepresented denials of any ownership interests in Glove Paq or Glove Safe... for no other reason than the continued attempt to deny plaintiff her property rights in the patented products.” Although not expressly alleged in the complaint, April 18, 2008 was the date of a declaration submitted by Arcoa Industries, Inc.’s chief executive officer, which was filed in support of a motion for a protective order challenging deposition subpoenas Rhonda had served on him. The complaint further alleged, “Plaintiff’s reliance on defendants’ representations was justified because they were made through legal counsel who all insisted on the veracity of them.”
On July 17, 2009, the trial court granted those defendants’ anti SLAPP motion to the complaint on the ground “[a]ll causes of action arise from protected activity.” Rhonda did not appeal from the court’s order.
II.
The Instant Action
A.
The Complaint
In September 2009, Rhonda filed a complaint against defendants for fraud based on a false promise, fraud based on concealment, and deceit (collectively referred to as the fraud causes of action). The complaint also asserted a breach of contract claim against all defendants except Arcoa.
The complaint alleged the existence of the royalty agreement and its addenda and Rhonda’s 50 percent interest in royalties due to Paul under the agreement. The complaint further alleged Jordan Biologics had assigned the patents to OneGlove, which in turn granted Arcoa a license to distribute the product.
In support of the fraud causes of action, the complaint stated, inter alia, defendants made promises to pay royalties to Paul and through him a 50 percent share to Rhonda, but did not intend to perform those promises. The complaint further stated defendants intentionally failed to disclose and actively concealed from Rhonda facts material to the royalty agreement and assignment of the patents. The complaint alleged defendants had falsely stated there had been no sales subject to the royalty agreement. Furthermore, the complaint alleged, “Defendant[s’] acts in concealing facts have continued up to and including the present time. Plaintiff did not discover facts regarding Defendants’ fraudulent actions until, at the earliest, October 2007. Additional facts were not discovered until Plaintiff obtained the depositions of Defendant, PAUL R. PERSIANI on November 12, 2008, and of Defendant, EARL JORDAN on January 16, 2009.”
B.
Defendants’ Anti SLAPP Motion
In November 2009, defendants filed an anti-SLAPP motion challenging the fraud causes of action of the complaint. After the case was assigned to three different judges, the motion was ultimately taken off calendar. In April 2010, defendants again filed an anti SLAPP motion challenging the fraud causes of action.
Defendants concurrently filed a demurrer to the complaint and motion to compel arbitration, neither of which is the subject of the instant appeal.
Defendants’ anti SLAPP motion was based on the argument the fraud causes of action “are based on Defendants’ statements in a prior legal action and therefore are subject to the Anti SLAPP Statute. Plaintiff specifically relies on depositions, declarations, pleadings, and written discovery responses from prior lawsuits.”
Rhonda filed an opposition to the anti SLAPP motion, which included her declaration stating she had never received any royalties from the sale of the product subject to the royalty agreement although she had seen the product identified as “Glove Paq” being sold at a local Home Depot store. (She was informed that it was sold at multiple Home Depot stores.) Defendants filed objections to certain portions of Rhonda’s declaration.
Rhonda’s opposition to the anti SLAPP motion was further supported by her attorney Ronald B. Funk’s declaration in which he stated he had taken the depositions of Jordan and Paul in connection with the marital dissolution action. Funk authenticated portions of Jordan’s January 2009 deposition in which Jordan testified regarding the sales of the product, as follows: (1) within five years of the date of the agreement (June 12, 2002), the product was sold to healthcare workers; (2) Jordan did not know how much money was generated as a result of those sales although records were generated regarding how much of the product was provided for distribution and how much money the distributors paid to Jordan Biologics for the product; (3) Jordan Biologics assigned its interest in the patents to OneGlove without consideration; (4) Jordan is the president of OneGlove which has no other officers; (5) OneGlove did not assume the royalty agreement which remained with Jordan Biologics; (6) Jordan believed that OneGlove would not be subject to the royalty agreement; (7) Arcoa has a license to manufacture the product and sell it directly to consumers; (8) Arcoa paid OneGlove a per unit price; and (9) OneGlove does not pay any sort of royalty or fee to Jordan Biologics.
Funk also authenticated portions of Paul’s November 2008 deposition in which Paul testified that he was involved in the distribution of Arcoa products and there were no products Arcoa distributed that he would not know about. He testified he did not have any knowledge of Arcoa’s involvement in the distribution of the product subject to the royalty agreement.
Funk stated that on the same date as Paul’s deposition, a “GlovePaq” dispenser bearing the patents’ numbers for the product that is the subject of the royalty agreement was purchased at Home Depot in Orange, California. The package stated that GlovePaq is distributed by Arcoa.
In support of their reply to Rhonda’s opposition, defendants filed the declarations of Paul and Jordan. In his declaration, Paul stated in part, “[u]nfortunately, there have been no sales of the product that would give rise to a royalty. I have not received any royalty payments, and there are no royalty payments that are due and owing to me.”
In his declaration, Jordan stated that the patents have been corrected to reflect that he is the sole inventor. He also stated that the product has been sold in Home Depot stores, but Home Depot has discontinued the product “because it did not sell well enough to justify having it as a continuing product line.”
C.
The Trial Court Denies the Anti-SLAPP Motion and Defendants Appeal.
At the hearing on the anti SLAPP motion, the trial court overruled defendants’ objections to certain portions of Rhonda’s declaration and denied the motion as to the fraud claim based on a false promise and fraud claim based on concealment causes of action. The court permitted the parties to submit supplemental briefs as to the deceit cause of action in light of the then recently filed opinion in Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539.
Defendants do not challenge the trial court’s rulings on the evidentiary objections in this appeal. At the hearing, the court also overruled defendants’ demurrer and granted the motion to compel arbitration.
Following the submission of supplemental briefs by the parties, the trial court denied the anti-SLAPP motion as to the deceit cause of action. Defendants appealed from the orders denying the motion.
DISCUSSION
I.
Section 425.16 and Standard of Review
“Section 425.16, subdivision (b)(1) requires the court to engage in a two step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue, ’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.’” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
We independently review the trial court’s orders denying the anti SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 326.) “‘We consider “the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.” [Citation.] However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Id. at p. 326.) We further observe that the anti SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)
II.
Defendants Failed to Carry Their Burden of Showing Rhonda’s Claims Arose Out of Protected Activity Within the Meaning of the Anti SLAPP Statute.
In carrying the initial burden in bringing an anti SLAPP motion, “‘[t]he only thing the defendant needs to establish to invoke the [potential] protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.’” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 61.) In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati), the California Supreme Court explained that “the statutory phrase ‘cause of action... arising from’” contained in section 425.16, subdivision (b)(1) “means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)....’ [Citations.]” Section 425.16, subdivision (e)(2) provides that an act “‘in furtherance of a person’s right of petition or free speech’” includes a “written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.”
In City of Cotati, supra, 29 Cal.4th at page 72, mobilehome park owners filed a lawsuit in federal court against a city, alleging that the city’s rent control ordinance constituted an uncompensated regulatory taking in violation of the United States Constitution. The city sued the owners in the state court for declaratory relief. (Ibid.) The city sought a judgment declaring the respective rights and duties of the parties under the ordinance and that the ordinance is constitutional, valid, and enforceable on its face. (Ibid.) The owners filed an anti-SLAPP motion seeking to strike the city’s declaratory relief action, arguing that the city’s filing of the state court action arose from the owners’ filing of the earlier federal court action. (Id. at pp. 72 73.) The Supreme Court stated, “[a]s evidence that City’s state court action was a SLAPP, Owners pointed to references in City’s complaint to Owners’ contention in the federal action that City’s ordinance constituted a taking.” (Id. at p. 73.) The trial court granted the owners’ anti SLAPP motion and the appellate court reversed. (Ibid.)
The Supreme Court affirmed the judgment of the appellate court, concluding the owners failed to meet their threshold burden of demonstrating that the city’s action was one arising from the owners’ protected speech or petitioning. (City of Cotati, supra, 29 Cal.4th at p. 76.) The Supreme Court stated: “While City’s complaint repeatedly refers to the underlying subject matter of Owners’ federal action (i.e., the mobilehome park rent stabilization ordinance and arguments respecting its validity), it contains no reference to the action itself. California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one “arising from” an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’ [Citation.] [¶] To construe ‘arising from’ in section 425.16, subdivision (b)(1) as meaning ‘in response to, ’ as Owners have urged, would in effect render all cross actions potentially SLAPP’s. We presume the Legislature did not intend such an absurd result.” (Id. at p. 77.)
The Supreme Court asked: “What activity or facts underlie the City’s cause of action for declaratory relief?” (City of Cotati, supra, 29 Cal.4th at p. 79.) The court stated: “Owners inaccurately state that ‘City has acknowledged that its only basis for alleging an actual controversy... was the fact that the park owners had previously sued the City in federal court.’ In fact, City has argued only that Owners’ federal court action informed City of the existence of an actual controversy justifying declaratory relief, not that Owners’ federal action, itself, constituted that controversy.” (Ibid.) The court further stated: “Examination of the relevant papers in this case confirms City’s contention that its action alleges the existence of a controversy—and seeks a declaration—respecting the validity of City’s mobilehome park rent stabilization ordinance.” (Ibid.) Consequently, the city’s cause of action was not one arising from the owners’ federal lawsuit and thus not subject to an anti-SLAPP motion. (Id. at p. 80.)
Here, defendants contend Rhonda’s fraud causes of action arose from acts done in furtherance of defendants’ right of petition or free speech because those acts were based on written or oral statements defendants made in connection with the prior lawsuits involving the parties. As in City of Cotati, supra, 29 Cal.4th at page 79, we therefore turn to ask the question, “[w]hat activity or facts underlie” the fraud causes of action?
The complaint shows the activities underlying the fraud causes of action are defendants’ misrepresentations regarding Rhonda’s community property interest in the royalty agreement. Nothing in the complaint or in the evidence produced by any of the parties suggests the fraud causes of action were based, even in part, on the filing of any prior lawsuit or any litigation activities such as serving written discovery or deposition subpoenas. (See, e.g., Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 535 [“We hold the use of subpoenas to conduct discovery in the context of a contractual arbitration of an uninsured motorist claim dispute under the Insurance Code constitutes a writing in connection with ‘any other official proceeding authorized by law, ’ within the meaning of section 425.16, subdivision (e)(2)”].)
Instead, defendants’ argument is based on the complaint’s references to evidence obtained through prior litigation. Specifically, defendants point to the complaint’s allegations that Rhonda did not discover certain facts regarding defendants’ fraudulent conduct until Paul’s and Jordan’s depositions had been taken in a prior action in November 2008 and January 2009, respectively. In their opening brief, defendants argue: “There can be no question that the contents of the deposition taken during the prior Family Law Action are ‘protected activity.’ Such oral statements are ‘made before a... judicial proceeding...’ and can also be construed as oral statements ‘made in connection with an issue under consideration or review by a... judicial body.’” (Second ellipsis added.)
It appears to be defendants’ position that evidence obtained in the course of litigation is protected by the anti-SLAPP statute and cannot serve as the basis of claims in future litigation. Defendants’ argument is indeed novel and without any support in the law. If this were the rule, which it is not, arguably, a party would be prohibited by the anti-SLAPP statute from amending a pleading in light of evidence uncovered in the discovery process, much less initiate a separate action based on wrongdoing discovered through document production or a deposition. (See Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1289 1290 [tenant’s lawsuit did not “arise from” the landlord’s successful unlawful detainer action within the meaning of the anti-SLAPP statute because it was not based on the landlord’s eviction notices and the unlawful detainer action which were “merely cited as evidence and background to illustrate [the landlord]’s subsequent [local rent control ordinance and statutory] violation”].)
Even assuming the substance of defendants’ testimony or other discovery responses produced in earlier litigation constituted protected activity within the meaning of the anti-SLAPP statute, such protected activity is only incidental to the fraud causes of action. In Coretronic Corp. v. O’Connor (2011) 192 Cal.App.4th 1381, 1388 1389, the appellate court stated: “When a lawsuit involves both protected and unprotected activity, the court looks to the gravamen of the claims to determine if the case is a SLAPP. [Citation.] Protected conduct which is merely incidental to the claims does not fall within the ambit of section 425.16. [Citations.] Where the defendant’s protected activity will only be used as evidence in the plaintiff’s case, and none of the claims are based on it, the protected activity is only incidental to the claims.” (Second italics added.)
Here, as the fraud causes of action are partially based on some of the evidence obtained through the discovery process in prior litigation, defendants have failed to show the fraud causes of action arose from an act on their part in furtherance of their right of petition or free speech within the meaning of the anti-SLAPP statute.
This case is therefore distinguishable from Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, supra, 184 Cal.App.4th 1539, 1548 1549, in which the plaintiff’s complaint alleged that the defendants willfully conspired with a witness to produce false testimony in a prior lawsuit and willfully misrepresented facts surrounding the claims in that prior litigation in a letter to a local newspaper. The appellate court concluded that the complaint alleged conduct protected by the anti-SLAPP statute and that the protected activity alleged in the complaint was not merely incidental to the nonprotected activity or to the plaintiff’s claims. (Id. at pp. 1550 1551.)
In their opening brief, defendants argue, “it is apparent that Rhonda filed this action against [defendants] to punish and harass them for making truthful statements in connection with the Family Law Action, the First Civil Lawsuit and the SLAPP Lawsuit once she based [the fraud causes of action] on statements made in connection with those judicial proceedings.... [Defendants] should not be punished or harassed for statements made in connection with a prior or pending court action. Indeed, this is exactly the type of circumstance that the California Legislature contemplated when enacting the anti-SLAPP statute.” But in City of Cotati, supra, 29 Cal.4th at pages 76 77, the California Supreme Court stated: “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.]” Furthermore, the Supreme Court stated, “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (Id. at p. 78.)
Defendants also attack the trial court’s specific stated reasons for its conclusion that the fraud causes of action did not arise out of protected activity. As discussed ante, however, we review de novo the trial court’s orders denying the anti-SLAPP motion, not the court’s stated reasons for doing so.
Because the fraud causes of action did not arise from protected activity, we do not reach the anti-SLAPP statute’s secondary question whether Rhonda carried her burden of showing that there was a probability she would prevail on the fraud causes of action. (See City of Cotati, supra, 29 Cal.4th at pp. 80 81.)
III.
South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634
On March 21, 2011, the day before oral argument, defendants brought to our attention the recently filed appellate court opinion in South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634 (South Sutter), in which the Third Appellate District considered whether a plaintiff was estopped from filing a complaint after its original complaint had been dismissed after an anti-SLAPP motion had been granted. (Id. at p. 661.) Defendants now urge us to reverse the trial court’s orders denying their anti-SLAPP motion based on South Sutter. We decline to do so.
Defendants argue on appeal, in part, that Rhonda was barred from including the fraud causes of action in her most recent complaint by operation of the theories of res judicata and collateral estoppel. Their argument as to such theories was limited to the second prong of the anti-SLAPP analysis, which, as discussed ante, focuses on whether Rhonda had shown a probability of prevailing on the merits. But to reach the second prong of the analysis, there must be protected activity; we have explained why Rhonda has carried her burden of demonstrating that her causes of action were not based on protected activity and that we therefore do not need to reach the second prong of the anti-SLAPP analysis.
In South Sutter, the appellate court analyzed the defendant’s estoppel argument under the first prong of the anti-SLAPP analysis. We have reviewed the appellate briefs and confirm defendants do not argue res judicata or related arguments under the first prong. So, defendants’ argument that we consider their estoppel arguments under the first prong was made, in essence, for the first time at oral argument in this appeal. In general, we cannot consider arguments first made in a reply brief or at oral argument and we decline to do so here. (See McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1320 [respondent precluded from raising argument for the first time on appeal]; Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 [in general, arguments raised for the first time in an appellate reply brief will not be considered].) Nothing in this opinion limits the rights of either party to plead or argue in the future issues regarding primary rights, collateral estoppel, res judicata, or any related issue.
DISPOSITION
The orders are affirmed. Respondent shall recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.