Opinion
B231960
02-09-2012
RICHARD E. QUINTILONE II, Plaintiff and Appellant, v. JOSEPH H. LOW IV et al., Defendants and Respondents.
Quintilone & Associates and Richard E. Quintilone II for Plaintiff and Appellant. Law Offices of Steven R. Young and Jim P. Mahacek for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NC054014)
APPEAL from judgments of the Superior Court of Los Angeles County. Judith A. Vander Lans, Judge. Affirmed.
Quintilone & Associates and Richard E. Quintilone II for Plaintiff and Appellant.
Law Offices of Steven R. Young and Jim P. Mahacek for Defendants and Respondents.
Richard E. Quintilone II (appellant) appeals from judgments dismissing his action against Joseph H. Low IV (Low) and Steven R. Young (Young) (collectively respondents) pursuant to Code of Civil Procedure section 425.16, subdivision (b). We affirm.
All further statutory references are the Code of Civil Procedure unless otherwise indicated.
CONTENTIONS
Appellant's first contention is that the trial court erred in granting respondents' special motions to strike pursuant to section 425.16. Specifically, appellant contends that respondents relied exclusively on the litigation privilege under Civil Code section 47, subdivision (b), and failed to make any affirmative showing that their conduct qualified as constitutionally protected activity. Further, appellant argues that any protected conduct is incidental to the unprotected conduct which forms the thrust of his claims. Finally, appellant claims that he established a probability of prevailing on his cause of action for intentional interference with contractual relations.
Appellant's next contention is that the trial court abused its discretion in granting attorney fees and costs to respondents.
Appellant's third contention is that the trial court abused its discretion in granting respondents' motions to strike and objections to appellant's evidence.
Appellant's final contention is that the trial court improperly refused to grant leave to appellant to amend the complaint to cure a limited deficiency and thus avoid dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
1. Appellant's complaint
Appellant is an attorney. On January 19, 2010, appellant filed this action against respondents, who are also attorneys, for inducing breach of contract; interference with contractual relations; intentional interference with prospective economic relations; and negligent interference with prospective economic relations. Appellant also sought a permanent injunction.
The complaint alleged that appellant represented three separate groups of tenants in a landlord-tenant action entitled Gail Chudacoff v. Fountains Apartments, et al. Orange County Superior Court case No. 04CC11491 (consolidated with case Nos. 05CC00283 and 05CC04168) (Chudacoff case) involving construction defects and mold. The Chudacoff case clients had entered into attorney-client fee agreements with appellant, who prosecuted the actions for several years. In 2007, the Chudacoff case clients entered into additional fee agreements with the Law Offices of Callahan & Blaine.
On or about January 10, 2008, Judge Tomas (Ret.) held a settlement conference to resolve the Chudacoff case. At a staff meeting later that day at appellant's law office, several Chudacoff case clients appeared unannounced. These clients were Ms. Chudacoff, Ms. Roldan, Mr. Roldan, Ms. Remillard, and Laura Lodestro (for Jennie Mendoza). Appellant alleged that these Chudacoff case clients stated that appellant's office had been fired and demanded the immediate return of their entire file. Appellant indicated that he would prepare a substitution of attorney form. Appellant was told that another attorney would be substituting in as counsel and that this new attorney had already prepared a substitution of attorney and sent it to appellant. Appellant indicated that this was not true, and the meeting broke down. Appellant indicated that he could not provide any client's file for immediate production on demand.
Subsequently there was a mandatory settlement conference in the Chudacoff case which was held for two purposes: (1) to see if the clients would accept the mediator's proposal; and (2) to substitute in new counsel. Despite participating in an entire day of mediation, the Chudacoff case clients met privately with respondents.
Appellant continued to work towards a settlement on the Chudacoff case. He thought he was making "headway" when some of the Chudacoff case clients orally agreed to accept smaller settlements from some subcontractors. Despite these promises, a number of the Chudacoff case clients ultimately refused to return signed settlement agreements.
Appellant alleged that he had continually demanded that his clients pay the outstanding litigation costs and expert costs. In 2007 and 2008, those costs "well exceed[ed] $100,000." Appellant alleged that his fee agreement with the Chudacoff case clients required that they pay such fees. Appellant alleged that respondents directed the Chudacoff case clients to breach this agreement.
Due to respondents' interference with his contracts with the Chudacoff case clients, appellant alleged, the Chudacoff case clients refused to pay costs or engage in discussions regarding the pending settlements. When appellant indicated that they had reached a potential settlement with Ms. Chudacoff, Ms. Roldan "immediately called [respondents] who then instructed her [to] interfere with the resolution." Appellant alleged that respondents solicited the entire group of Chudacoff case clients to "go to the solo lawyer LOW," only to find out that Low had no interest in representing the Chudacoff case clients "given the significant costs and expert contracts, the complexity and difficulty of the case."
Due to the acts of the respondents, appellant alleged, the matter settled for significantly less than originally suggested by the mediator, causing appellant over $200,000 in lost fees, costs and expenses as well as causing appellant to be sued by experts seeking unpaid costs.
2. Low's section 425.16 motion
On October 5, 2010, Low filed a motion to dismiss appellant's complaint under section 425.16. He included a notice of motion, memorandum of points and authorities, and declaration. Low specifically asked that the court grant him attorney fees as permitted under section 425.16, subdivision (c)(1).
Appellant filed an opposition on November 9, 2010. He concurrently filed a memorandum of points and authorities, a declaration, and specifically asked for attorney fees.
On November 23, 2010, Low filed formal objections to appellant's declaration, a reply memorandum, and an additional request for attorney fees.
The court heard Low's motion on December 2, 2010, concurrently with Young's motion (discussed below). The court held that section 425.16 applied to appellant's action against Low, sustained the majority of Low's objections to appellant's declaration, and found that appellant failed to prove that he would probably prevail against Low. The court further found that Low had properly requested attorney fees and that it had jurisdiction to award them at that time. Low's request for attorney fees was granted in the amount of $13,452.50.
Pursuant to the trial court's request, Low filed a proposed statement of decision and judgment on December 6, 2010. On December 20, 2010, appellant filed his objection to Low's proposed statement of decision; his request for judicial notice and motion to strike the declaration of Low in support of request for attorneys fees and costs; and a declaration and request for judicial notice in support of his objection to Low's proposed statement of decision, proposed judgment, and request for attorneys fees.
On December 23, 2010, Low filed a response to appellant's objections and a request for additional fees. On December 24, 2010, appellant objected to Low's request for additional fees.
On February 7, 2011, the trial court overruled appellant's legal and evidentiary objections, denied appellant's request for judicial notice, and rejected Low's request for additional fees. On the same date, the court entered a statement of decision and judgment in Low's favor.
3. Young's section 425.16 motion
Young filed his section 425.16 motion on October 5, 2010. He included a notice of motion, memorandum of points and authorities, and a declaration. Unlike Low, Young did not file a separate declaration in support of his request for attorney fees.
On November 5, 2010, appellant separately opposed Young's motion. He filed a memorandum of points and authorities directed exclusively at Young's motion, filed a personal declaration in opposition to Young's motion, and demanded that Young pay appellant's attorney fees.
Young's motion was heard on December 2, 2010, concurrently with Low's motion. The trial court found that section 425.16 applied to appellant's action against Young; sustained the majority of Young's objections to appellant's declaration, and found that appellant failed to show that he could probably prevail against Young.
However, the court noted that Young had not submitted an attorney declaration in support of his claimed fees and costs. Therefore, the court denied without prejudice Young's motion for fees.
On December 6, 2010, Low filed a declaration in support of his request for attorney fees and costs. On January 21, 2011, Young filed a separate motion for attorney fees, a declaration of counsel and a memorandum in support of the motion.
On February 8, 2011, appellant objected to the declaration in support of Young's attorney fees. He also filed an opposition to Young's request. On February 14, 2011, Young filed a reply memorandum and supplemental declaration in support of his motion for attorney fees.
The motion for attorney fees was heard on February 22, 2011, and was taken under submission. On February 25, 2011, the court issued a ruling granting Young's motion for attorney fees and costs in the sum of $17,580. Appellant's objections were overruled. A final judgment dismissing the action against Young pursuant to section 425.16, along with a statement of decision, were signed and filed on February 24, 2011.
On March 28, 2011, appellant appealed from the two judgments.
DISCUSSION
I. The section 425.16 motions
We first discuss appellant's arguments concerning the merits of the two section 425.16 petitions. We discuss the two motions together, as appellant has.
Respondents have also addressed the two motions together. The motions are addressed in a respondent's brief filed by Low. Young has filed a joinder in that brief.
A. Applicable law and standard of review
A special motion to strike under section 425.16, also known as the "anti-SLAPP" statute, allows a defendant to seek early dismissal of a lawsuit involving 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." (§ 425.16, subd. (b)(1).) "SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
Actions subject to dismissal under section 425.16 include those based on any of the following acts: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
"A SLAPP is 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.' (§ 425.16, subd. (b)(1).) Thus, evaluation of an anti-SLAPP motion requires a two-step process in the trial court. 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. (§ 425.16, subd. (b)(1).) 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.]" (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035 (Nygard).) "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." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
"'Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) 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.]' [Citations.]" (Nygard, supra, 159 Cal.App.4th at p. 1036.) Courts should broadly interpret section 425.16 to protect all direct petitioning of governmental bodies and petition-related statements and writings. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1121.)
B. The lawsuit is subject to section 425.16
The court determined that section 425.16 applies to this action. Specifically, the court held:
"The gravamen of [appellant's] claims focus on the communicative act of an attorney providing legal advice to his clients within the confines of a settlement discussion concerning the [third] parties['] suit against unrelated defendants. Mr. Low's allegedly providing such advice is a protected communication between an attorney and his clients and not subject to suit by an allegedly aggrieved [third] party attorney. The communications fall squarely under the scope of protected communications as defined in [section] 425.16, [subdivision] (b). Nor does the 'commercial exception' to the statute apply. Based on the Complaint and moving papers, the Court finds that the burden of proof shifted to [appellant] to establish the probable validity of his claims.
The trial court used identical language in its statement of decision concerning Mr. Young.
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Appellant argues that respondents' communications with the Chudacoff case clients were made solely to "induce the Chudacoff clients into rejecting the settlement offer engineered by Appellant so that Respondents could file a malpractice suit against Appellant and Callahan & Blaine to further their own unlawful dispute." In sum, appellant argues, respondents' actions were for the purpose of fashioning a false legal claim against appellant.
Appellant cites Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), for the proposition that application of the litigation privilege found in Civil Code section 47, subdivision (b) does not automatically trigger the protection of Code of Civil Procedure section 425.16. Flatley is distinguishable. There, the Supreme Court confirmed its conclusion that conduct which is illegal as a matter of law is not within the purview of section 425.16. (Flatley, supra, at p. 315.) The Flatley appellant argued that, even if his communication could be considered illegal extortion, it was nonetheless protected by the litigation privilege found in Civil Code section 47, subdivision (b), and therefore should be protected by Code of Civil Procedure section 425.16. (Flatley, at pp. 320-321.) The high court disagreed, finding that even if the litigation privilege protected communication that constitutes extortion, section 425.16 does not. (Id. at p. 322.) Here, appellant points to no illegal activity which would bring respondents' alleged conduct outside of section 425.16 under Flatley. Appellant's argument that respondents' communications with the Chudacoff case clients were carried out for the purpose of fashioning a false claim against appellant is not supported by the allegations in the complaint or the record before this court.
Next, appellant cites cases involving the commercial transaction exception to section 425.16. In Garretson v. Post (2007) 156 Cal.App.4th 1508, the Court of Appeal determined that a nonjudicial foreclosure does not involve rights of free speech. "Rather, it concerns a commercial transaction which is not protected activity under the anti-SLAPP statute." (Id. at p. 1512.) Similarly, in Blackburn v. Brady (2004) 116 Cal.App.4th 670, the Court of Appeal determined that conduct in bidding on real property at a sheriff's auction was a purely business event that was not protected activity as contemplated by section 425.16. (Id. at p. 677 ["The ministerial event of a Sheriff's sale . . . simply does not concern an issue under review or determine some disputed matter as contemplated under the anti-SLAPP law"].) These cases do not support appellant's position that the conduct at issue here falls outside the scope of section 425.16.
Appellant cites Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 (Mann), and Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658 (Peregrine), arguing that any protected conduct at issue is incidental to the nonprotected conduct in forming the thrust of appellant's claim. The cases are inapplicable. In Mann, the Court of Appeal confirmed that "where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is 'merely incidental' to the unprotected conduct [citation]." (Mann, supra, 120 Cal.App.4th at p. 103.) The Mann court determined that the appellant's cause of action for interference with contractual relationships did not arise from protected activity. The relevant allegations concerned the defendants' actions in inducing existing and potential customers to disrupt contractual or potential future business relationships with the appellant. However, the appellant in Mann was a company in the business of maintaining industrial water systems -- not a lawyer providing advice about a pending judicial proceeding. The communications at issue included disparaging statements to the company's customers, which did not involve any "protected reports to governmental agencies" or protected communications concerning court actions. (Id. at p. 110.) In contrast, the actions at issue in this matter were directly related to a pending judicial proceeding and therefore fall directly within the ambit of section 425.16.
In Peregrine, a law firm was sued by investors who lost money in a Ponzi scheme. The investors alleged that the law firm's conduct helped the perpetrators of the scheme avoid detection and prosecution by securities regulators. The Court of Appeal acknowledged that certain "comfort letters" that the law firm drafted, were not made in connection with any judicial proceeding. (Peregrine, supra, 133 Cal.App.4th at p. 670.) However, the law firm's later representation of the perpetrators in a Securities & Exchange Commission (SEC) action was more problematic. While certain activity did not appear to be protected, certain other activity fell "squarely in the category of petitioning activity," such as opposing the SEC's efforts to obtain restraining orders and to appoint a receiver. (Id. at p. 671.) In sum, these actions were "litigation tactics the firm employed to benefit its client['s] position in an ongoing lawsuit." (Id at p. 672.) While these were mixed allegations, in the sense that they involved both protected and unprotected activity, the court concluded that the claims were based "in significant part" on the law firm's protected petitioning activity in the SEC litigation. Therefore, the burden shifted to the appellants to show that their claims had merit. (Id. at p. 675.)
Appellant has failed to distinguish any actions by the respondents that did not constitute communications directly related to a judicial proceeding. Appellant's complaint concerns events occurring at a private meeting concerning a settlement conference, and subsequent private conversations between lawyers and their potential clients concerning a pending judicial proceeding. Appellant makes no allegations concerning conduct that did not involve the pending litigation. Unlike Mann and Peregrine, this case does not present "mixed" allegations. On the contrary, all of the allegations fall squarely within the purview of section 425.16.
Section 425.16 applies to communications "made in connection with an issue under consideration or review by a . . . judicial body . . . ." (§ 425.16, subd. (e).) This includes communications between a lawyer and a potential client about pending lawsuits. (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 (Taheri).) It is irrelevant that some of the communications with the potential client occur while that individual is represented by another lawyer. (Ibid.)
Taheri is directly on point. There, an attorney alleged that another attorney improperly solicited his client. (Taheri, supra, 160 Cal.App.4th at p. 485.) The Court of Appeal concluded that section 425.16 was applicable to the conduct underlying the first attorney's lawsuit against the second attorney for intentional interference with prospective economic advantage and intentional interference with business relations. The court noted that the causes of action arose directly from communications between the second attorney and the client about the pending lawsuits. (Id. at p. 489.) Further, the court held that the second attorney's conduct did not fall within the commercial speech exception. First, the court found that "[a] dispute involving a lawyer's advice to a prospective client on pending litigation . . . , while it may include an element of commerce or commercial speech, is fundamentally different from the 'commercial disputes' the Legislature intended to exempt from the anti-SLAPP statute." (Id. at p. 491.) Further, the court noted, "construing the commercial speech exemption to encompass a cause of action arising from advice given by a lawyer on a pending legal matter would serve to thwart the client's fundamental right of access to the courts, and specifically to the lawyer of his choice." (Ibid.) The same analysis applies to the matter before us.
Appellant has cited no authority suggesting that respondents' communications with the Chudacoff clients regarding their toxic mold case are not protected by section 425.16 under the circumstances of this case. Ample authority suggests that such communications are protected. (Taheri, supra, 160 Cal.App.4th at p. 492; Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 261-262 [attorney referral service's acts of making attorney selection and litigation funding decisions were communications and statements made in connection with an issue under review by a judicial body and therefore protected under section 425.16, subdivision (e)(2)].) As set forth in Taheri, respondents were "advising a prospective client on pending litigation, and that advice included recommending [appellant's] discharge and related actions." (Taheri, supra, at p. 492.) Under the circumstances of this case, and "because of the fundamental right of a client to choose and change his legal representation," we conclude that the trial court correctly determined that the conduct at issue falls within the scope of section 425.16. (Ibid.)
C. Appellant did not show a probability of prevailing
Even if a plaintiff's claims arise from an act in furtherance of the defendant's right of petition, or free speech, a court should not strike the plaintiff's claims if "the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The trial court determined that appellant failed to establish the probable validity of his claims because the conduct at issue falls within the scope of the litigation privilege under Civil Code section 47, subdivision (b). Specifically, the trial court found that "[t]he statements were made in the context of matters then pending in a judicial proceeding, by an individual authorized by law to make them, concerning matters that had a direct and immediate impact and effect on the pending settlement discussions." Appellant argues that the trial court erred. Specifically, appellant argues that he has established the probability of prevailing on his claims because (a) it is undisputed that respondents interfered with his attorney fee agreements with his clients, and (b) respondents' conduct is not privileged under Civil Code section 47, subdivision (b).
The litigation privilege under Civil Code section 47, subdivision (b) is generally described as applying to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The principal purpose of the section is to "afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]" (Id. at p. 213.) The litigation privilege is absolute, and immunizes defendants from liability for torts arising from their protected activities, including the torts of intentional inducement of breach of contract and intentional interference with prospective economic advantage. (Id. at p. 215.)
The conduct at issue in appellant's lawsuit against respondents -- respondents' communications with appellant's then-clients regarding the pending litigation in which they were involved -- is protected by the litigation privilege. Appellant has failed to cite any law suggesting that the conduct at issue is exempt from the litigation privilege. Because the conduct at issue was protected by the litigation privilege, appellant could not establish a probability of prevailing.
D. Conclusion
Each of appellant's causes of action sought to impose liability for conduct protected under section 425.16. Appellant did not show a probability of success on any of his claims. Therefore, the trial court did not err by granting respondents' anti-SLAPP motions.
II. The attorney fee awards
Under section 425.16, subdivision (c), a defendant who prevails on a special motion to strike under section 425.16 "shall be entitled to recover his or her attorney's fees and costs." The trial court awarded Low attorney fees in the amount of $13,452.50, and Young attorney fees and costs in the sum of $17,580.
Appellant argues that the trial court abused its discretion in making these awards. Appellant argues that the trial court ignored the "legal fiction" that these attorneys were not just representing themselves. At a minimum, appellant argues, only one lawyer did the work.
Appellant cites Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207-1211, and Taheri, supra, 160 Cal.App.4th 482, 493 for the proposition that where attorneys are in effect representing themselves, an award of attorney fees is not warranted. However, these cases are inapplicable. There was no evidence that either attorney represented himself in the matter below, nor does appellant provide this court with a citation to the record indicating that he made this argument to the trial court.
Further, we find that the trial court did not abuse its discretion in making separate awards to each respondent. In his declaration filed in support of his motion for fees, Young's counsel advised the trial court that he relied heavily on the work of Jim Mahacek, Low's counsel. However, Young's counsel emphasized that the fees he sought were for nonduplicative work. Thus, the trial court was fully informed that some duplicative work had occurred and made its decision accordingly.
As defendants who brought successful motions to strike under section 425.16, respondents were entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Such fee awards "should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee. [Citation.]" (Id. at p. 1133.) The court's award may not be overturned unless the trial court exceeded the bounds of reason. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 557.) "'In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.' [Citation.]" (Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 762.) Appellant has failed to show an abuse of discretion, therefore we affirm the attorney fee awards.
III. The trial court's evidentiary rulings
Appellant argues that the trial court's "wholesale exclusion" of appellant's evidence and declarations was an abuse of discretion. However, appellant fails to cite to a single specific evidentiary ruling or the legal basis for such ruling. Appellant cites Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 22 (Edwards) for the general proposition that a trial court should not exclude the bulk of a plaintiff's evidence where such a ruling would "[operate] as a general demurrer . . . or a motion for judgment on the pleadings." (Id. at p. 27.) In Edwards, the appellants informed the Court of Appeal of the bases for the trial court's rulings excluding the evidence at issue: the litigation privilege and the parol evidence rule. (Id. at pp. 28; 42.) The court was therefore able to analyze the trial court's evidentiary decisions.
In contrast, appellant has not addressed the bases for the trial court's evidentiary rulings or provided any specific argument directed at those rulings. This omission violates California Rules of Court, rule 8.204(a)(1)(B) which requires that an appellant "support each point by argument and . . . citation of authority." As set forth in Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852: "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong." Because appellant has failed to articulate a relevant argument for overturning any of the trial court's evidentiary rulings, we presume that all such rulings were correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
IV. Amendment
Finally, appellant argues that the trial court improperly refused to grant him leave to amend his complaint. In support of this argument, appellant cites Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam). In Nguyen-Lam, the court articulated the general rule that "a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended complaint [citation]." (Id. at p. 871.) The court agreed that allowing amendment to defeat the movant's showing on the first prong of the anti-SLAPP statute would create a "'procedural quagmire,'" allowing the SLAPP plaintiff to delay and drain the resources of the defendant. (Id. at p. 872.) However, because the Nguyen-Lam plaintiff had already presented proof that her complaint could be amended to show a probability of prevailing -- the second prong of the anti-SLAPP analysis -- the court concluded that the trial court did not err in permitting amendment. The court explained: "Simply put, the Legislature did not intend to shield statements shown to be malicious with an unwritten bar on amendment in the circumstances here." (Id. at p. 873.)
Appellant has failed to demonstrate a probability of prevailing if permitted to amend his complaint. There is no evidence in the record suggesting that any of the alleged acts of the respondents fell outside of the litigation privilege. Nor has appellant made any coherent argument regarding any specific facts to support his claim that he should be permitted to amend. Under the circumstances, we find no error in the trial court's decision not to permit amendment.
V. Motion for sanctions
Low has filed a motion for sanctions due to frivolous appeal pursuant to Code of Civil Procedure section 907 and California Rule of Court, rule 8.276(a). Low argues that no reasonable attorney could believe that this appeal has merit, considering that Low's conduct fell well within the anti-SLAPP statute as expressed in Taheri, and there was no question that the litigation privilege fully immunized his conduct. Further, Low argues, appellant misrepresented the position that respondents took at the trial court level. Low asks for sanctions in the amount of $10,000, payable to this court.
An appeal that is without merit is not by definition frivolous. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Imposition of sanctions should be used sparingly, to deter only the most egregious conduct. (Id. at p. 651.) While appellant's appeal lacks merit, we do not find sufficient evidence of the type of egregious conduct which warrants sanctions. Therefore, we deny Low's motion.
DISPOSITION
The judgments are affirmed. Respondents are entitled to their costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________ J.
CHAVEZ
We concur:
__________________ , Acting P. J.
DOI TODD
__________________ J.
ASHMANN-GERST