Opinion
B303942
01-21-2021
BLAINE HOLDING & DEVELOPMENT, LLC, Plaintiff and Respondent, v. VIVERA PHARMACEUTICALS, INC., Defendant and Appellant.
The Duringer Law Group, Stephen C. Duringer and Edward L. Laird II, for Plaintiff and Respondent. LKP Global Law, Albert T. Liou and Shane W. Tseng, for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19NWCV00820) APPEAL from an order of the Superior Court of Los Angeles County, Olivia Rosales, Judge. Affirmed. The Duringer Law Group, Stephen C. Duringer and Edward L. Laird II, for Plaintiff and Respondent. LKP Global Law, Albert T. Liou and Shane W. Tseng, for Defendant and Appellant.
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INTRODUCTION
Appellant Vivera Pharmaceuticals, Inc. (Vivera) appeals from the denial of its motion filed under Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute. (See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 615 (Rand Resources).) Vivera leased real property in Santa Fe Springs (the Premises, comprising Building One, Building Two, and the Warehouse) from respondent Blaine Holding & Development, LLC (Blaine Holding). After a business dispute arose between Blaine Holding's owner and Vivera, Vivera was locked out of Building One and the Warehouse, and successfully sued Blaine Holding to regain possession. Blaine Holding then filed an action against Vivera, bringing unlawful detainer and forcible detainer claims. In support of its unlawful detainer claim, Blaine Holding alleged, in the alternative, that the lease was void ab initio due to Vivera's fraudulent inducement of Blaine Holding's consent, that Vivera had repudiated the lease via a January 2019 email, that Blaine Holding had terminated the lease, and that Vivera had breached the lease by unlawfully manufacturing, distributing, and storing products at the Premises. Vivera filed an anti-SLAPP motion in this prior action, but Blaine Holding voluntarily dismissed the action before the motion could be decided on its merits.
Around the same time, Blaine Holding filed the instant unlawful detainer action, alleging only that Vivera had failed to pay rent and other sums due under the lease. Vivera responded by filing the anti-SLAPP motion at issue in this appeal. Vivera argued, inter alia, that Blaine Holding's unlawful detainer claim arose from protected activity, viz., (1) Vivera's prior litigation to regain possession of the Premises, and (2) the January 2019 email referenced in Blaine Holding's prior complaint, which Vivera argued was a protected settlement communication. Blaine Holding opposed the motion and requested an award of attorney's fees under Code of Civil Procedure section 425.16, subdivision (c)(1), which provides that a court "shall" make such an award to a prevailing anti-SLAPP opponent if the court finds the motion is frivolous or dilatory. The trial court denied Vivera's anti-SLAPP motion. Observing that neither Vivera's prior litigation nor its January 2019 email were mentioned in Blaine Holding's instant complaint, the court concluded that Vivera had failed to meet its burden to show the complaint arose from protected activity. The court did not find the motion frivolous or dilatory, and did not award attorney's fees.
On appeal, Vivera contends the court erred by denying its anti-SLAPP motion. Blaine Holding disagrees and requests an award of its appellate attorney's fees as a sanction against Vivera, arguing the appeal is frivolous or dilatory.
We affirm the denial of Vivera's anti-SLAPP motion. The prior actions between the parties did not determine the nature of the instant action, which alleges only an unlawful detainer claim premised on the unprotected activity of failing to pay rent and other sums due under the lease. Vivera failed to identify any allegation of protected activity in the complaint, let alone such an allegation supplying an element of the unlawful detainer claim. Thus, the trial court properly denied the motion on the ground that Vivera had failed to meet its burden to show Blaine Holding's claim arose from protected activity. We deny Blaine Holding's request that we sanction Vivera.
FACTUAL BACKGROUND
A. The Parties' Pre-Litigation Dispute
Dr. Robert C. Blaine owns and operates both Blaine Holding (a real estate holding company) and Blaine Labs (a pharmaceutical business). On September 28, 2018, Dr. Blaine and Vivera executed a Share Exchange Agreement, under which Dr. Blaine would sell Blaine Labs to Vivera. The sale was subject to various conditions and set to close on a future date. On October 22, 2018, Blaine Holding leased the Premises to Vivera.
On January 13, 2019, Vivera's investment advisor sent an email to Dr. Blaine, alleging Dr. Blaine had misrepresented Blaine Labs's revenue in recent years and failed to disclose a settlement of a sexual harassment claim that had been made against an employee of Blaine Labs. On January 18, 2019, Vivera's counsel sent an email to Dr. Blaine's counsel, proposing revisions to the Share Exchange Agreement in light of the discovery of Blaine Labs's true revenue. On January 31, 2019, Dr. Blaine's counsel responded to Vivera's counsel, communicating several terms on which Dr. Blaine would agree to revise the Share Exchange Agreement.
In a reply email also sent on January 31, 2019 (the purported settlement communication on which Vivera relies), Vivera's counsel wrote that Vivera had decided to "terminate the transaction" and cancel the Share Exchange Agreement, effective immediately. He indicated Vivera would continue to lease Building Two, but would relinquish possession of Building One and the Warehouse.
On February 4, 2019, at Dr. Blaine's direction, the locks on Building One and the Warehouse were changed. Vivera was not given a key or allowed entry, even to retrieve its own property.
B. Vivera's Prior Litigation
1. Vivera's First Action
On February 19, 2019, Vivera filed an action against Blaine Holding (as well as Blaine Labs and Dr. Blaine). Vivera alleged that Blaine Holding had "engaged in actions of self-help and denied Vivera full access to the real property identified in the Lease." Vivera pleaded several causes of action and sought to regain possession of the premises.
On February 22, 2019, the trial court (Judge James C. Chalfant) issued a temporary restraining order requiring Blaine Holding to, inter alia, refrain from interfering with Vivera's access to Building Two and at least half of the Warehouse. On March 14, 2019, the court issued a similar preliminary injunction. The record does not disclose any further proceedings in this action.
2. Vivera's Second Action
On March 15, 2019, Vivera filed a second action against Blaine Holding, pleading causes of action for forcible entry and forcible detainer. Vivera alleged that Blaine Holding was interfering with Vivera's possession of Building One and the Warehouse.
Vivera filed a motion for summary judgment on its claims. Though Blaine Holding's opposition to the motion is not in the record, it evidently relied in part on the January 31, 2019 email through which Vivera communicated its cancellation of the Share Exchange Agreement. On April 19, 2019, the trial court (Judge Kristin S. Escalante) granted Vivera summary judgment, awarding Vivera possession of Building One and the Warehouse. In rejecting Blaine Holding's reliance on the January 31 email, the court reasoned, "Although the email may be sufficient evidence to establish that [Vivera] terminated the lease, termination of the lease is not the same as giving up possession." The court noted its ruling was "without prejudice to any argument in any further proceeding as to the rent or holdover damages that may be due and owing from [Vivera] to [Blaine Holding]." The court noted the same in its April 26, 2019 judgment.
On May 10, 2019, Blaine Labs filed a post-judgment claim of right to possession of Building One, which the court subsequently granted, observing, "Vivera's right of possession that was established in the earlier proceeding may be [only] a right to be restored to joint possession with Blaine Labs (subject to a future unlawful detainer judgment by whatever party has the actual right of possession under the contractual relationship)."
C. Blaine Holding's Prior Action
On April 3, 2019, Blaine Holding served Vivera with a 30-day notice of termination of tenancy on the grounds that Vivera had fraudulently induced Blaine Holding's consent to the lease, and had actually and anticipatorily breached the lease (in an unspecified manner). Blaine Holding subsequently filed an unlawful detainer action against Vivera. On June 12, 2019, it filed an amended complaint, to which it attached the 30-day notice. The amended complaint included causes of action for unlawful detainer and forcible detainer. It identified five alternative grounds for the unlawful detainer claim: (1) the lease was void ab initio due to Vivera's fraudulent inducement of Blaine Holding's consent, rendering Vivera a trespasser; (2) the lease had been terminated by Vivera's January 31, 2019 email, rendering Vivera a trespasser; (3) Vivera's termination of the lease had alternatively rendered Vivera a holdover tenant at sufferance; (4) Blaine Holding had elected to terminate the lease via the 30-day notice; and (5) Vivera had breached the lease by manufacturing, distributing, and storing products in violation of specified legal requirements.
On July 15, 2019, Vivera filed an anti-SLAPP motion. Vivera argued, inter alia, that Blaine Holding's complaint arose from Vivera's January 31, 2019 email, which was a settlement communication and therefore protected under the anti-SLAPP statute. On October 10, 2019, the trial court (Judge Raul A. Sahagun) held a hearing on the motion, which it took under submission. On October 28, 2019, Blaine Holding filed a request to dismiss the action without prejudice. On October 30, 2019, the court ruled that the motion had been rendered moot by Blaine Holding's request for dismissal.
D. The Instant Action
1. Blaine Holding's Instant Complaint
On October 2, 2019, Blaine Holding served Vivera with both a 15-day notice to pay rent or quit, and a 15-day notice to perform covenants and/or conditions or quit. The former notice alleged Vivera had failed to pay approximately $400,000 in rent due from January 1, 2019, to September 30, 2019. The latter notice alleged Vivera had failed to pay approximately $130,000 in non-rent charges due under the lease (comprising the deposit, late fees for unpaid rent, utility charges, and property taxes), and further alleged that Vivera had breached the lease by (1) subletting the premises without Blaine Holding's knowledge or consent; (2) allowing the landscape to become overgrown; (3) installing skylights without Blaine Holding's consent and required permits; and (4) failing to maintain required liability and property damage insurance coverage.
On October 25, 2019, Blaine Holding filed the instant unlawful detainer complaint against Vivera on Judicial Council form UD-100 (a three-page form). The complaint alleged Vivera had failed to pay the rent and other sums identified in the October 2 notices, which were attached as an exhibit. The complaint made no allegations of fraudulent inducement, termination of the lease, or breach of the lease by unlawful manufacturing, distributing, or storing of products. It included no cause of action for forcible detainer.
Blaine Holding's complaint in the prior action was traditionally formatted (not printed on a form) and 24 pages long.
2. Vivera's Anti-SLAPP Motion
On December 11, 2019, Vivera filed an anti-SLAPP motion. Vivera argued Blaine Holding had brought both its prior action and the instant action for the purpose of punishing Vivera for Vivera's prior litigation. Vivera argued the instant complaint arose from its protected activity in seeking and obtaining relief in its forcible detainer actions (i.e., the temporary restraining order, preliminary injunction, and judgment of possession), and from the January 31, 2019 email identified in Blaine Holding's prior action as a repudiation of the lease. Vivera argued the January 2019 email was a protected settlement communication. Vivera further argued Blaine Holding could not establish a probability of prevailing on the merits of its unlawful detainer claim.
Vivera submitted a declaration executed by Olivia Karpinski, Vivera's co-founder and executive vice president of sales, who declared, inter alia, that the January 31 email had suggested "settlement terms."
On January 3, 2020, Blaine Holding filed an opposition to the anti-SLAPP motion. It argued its complaint arose from "Vivera's failure to pay rent due under the Lease and other breaches of the Lease," not from the January 2019 email or Vivera's prior litigation. It further argued it had established a reasonable likelihood of prevailing on the merits of its unlawful detainer claim because Vivera had failed to pay rent and other sums due under the lease. Finally, Blaine Holding requested an award of costs and attorney's fees pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), which provides that the court "shall" make such an award to a prevailing anti-SLAPP opponent if the court finds the motion is frivolous or dilatory.
Blaine Holding submitted a declaration executed by Dr. Blaine, who declared, inter alia, that Vivera remained in breach of the lease.
On January 15, 2020, Vivera filed a reply. It argued, inter alia, that the language of Blaine Holding's complaint in its prior action controlled over the language of the instant complaint. It did not argue Blaine Holding's allegations in its prior action were judicial admissions of the nature of the instant claim.
3. Hearing , Ruling , and Appeal
On January 23, 2020, the trial court (Judge Olivia Rosales) held a hearing on the anti-SLAPP motion. At the outset of the hearing, Vivera's counsel confirmed he had reviewed the court's tentative decision to deny the anti-SLAPP motion. He argued that the court was required to focus on Blaine Holding's complaint in its prior action to "see what's going on here," and that like the prior complaint, the instant complaint concerned the validity of the lease. Blaine Holding's counsel disagreed, arguing the instant complaint merely concerned whether Vivera had breached the lease, as in any "simple UD." Vivera's counsel responded, "But the question is, why did they elect to try and throw us out?" The parties' counsel disagreed whether the question of motive was relevant. Vivera's counsel continued, "I understand the claim is simply unlawful detainer. 'You violated the lease. Let's litigate it.' But the question is, 'Why? Why are you electing to deem a breach of the lease?'" He argued Blaine Holding had done so because of Vivera's January 31, 2019 email and its subsequent forcible detainer actions. Blaine Holding's counsel responded that it had brought this action simply because Vivera had breached the lease. The court adopted its tentative ruling denying the anti-SLAPP motion.
In its written order, the court observed the instant complaint was a "form complaint" making no mention of the January 31, 2019 email or Vivera's prior litigation. The court found Blaine Holding's unlawful detainer claim arose from the breaches alleged in the complaint, not from "any statements made [in], or in connection with, the January 31 failed settlement negotiations between the parties," or from Vivera's "act of filing a forcible detainer complaint." The court concluded Vivera had failed to meet its burden to show the claim arose from protected activity, negating any need for Blaine Holding to show a likelihood of prevailing on the claim. The court's order made no findings whether the motion was frivolous or dilatory, and awarded no costs or attorney's fees.
On January 28, 2020, Vivera timely appealed. On February 6, 2020, Blaine Holding filed a motion to dismiss the appeal, which it characterized as frivolous and dilatory. In its motion, Blaine Holding also asked us to "consider imposing sanctions on [Vivera] for its abuse of the judicial system." On March 6, 2019, we issued an order denying Blaine Holding's motion to dismiss the appeal. Citing California Rules of Court, rule 8.276, we wrote, "If [Blaine Holding] believes a review of the merits of the underlying appeal will demonstrate it was frivolous and/or brought solely for purposes of delay, [Blaine Holding] may file a separate motion seeking sanctions." Blaine Holding has not filed a motion for sanctions.
"On motion of a party or its own motion, a Court of Appeal may impose sanctions . . . on a party or an attorney for . . . [t]aking a frivolous appeal or appealing solely to cause delay . . . ." (Cal. Rules of Court, rule 8.276(a)(1).)
DISCUSSION
Vivera contends the trial court erred by denying its anti-SLAPP motion. Blaine Holding disagrees, and requests an award of its appellate attorney's fees as a sanction for Vivera's pursuit of this allegedly frivolous or dilatory appeal.
We review de novo a trial court's decision on an anti-SLAPP motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) Our Supreme Court has summarized the two-step analysis required by the anti-SLAPP statute as follows: "At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. . . . If the court determines that relief is sought based on allegations arising from activity protected by the 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. . . . If [the plaintiff fails to satisfy this burden], the claim is stricken." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) The trial court denied appellant's motion at the first step.
A. First-Step Anti-SLAPP Principles
"At the first step of the [anti-SLAPP] analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson).) In other words, the defendant must show that the claim arises from protected activity. (See id. at 884, 887-888.) Protected activity includes: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, [and] (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." (Code Civ. Proc., § 425.16, subd. (e).)
"Motives are irrelevant under [the anti-SLAPP statute], and 'a claim filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic.' [Citation.] 'That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.'" (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 493-494, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; see also Rand Resources, supra, 6 Cal.5th at 621 ["a claim does not 'arise from' protected activity simply because it was filed after, or because of, protected activity"].)
B. Analysis
The trial court properly found that Vivera had failed to meet its first-step burden to show that Blaine Holding's unlawful detainer claim arose from protected activity. As Blaine Holding accurately observes on appeal, the only "operative allegations" in its three-page form complaint concerned Vivera's failure to pay rent and other sums allegedly due under the lease, and Blaine Holding's service of notices to quit premised on that failure to pay. Vivera's alleged failure to pay rent and other sums due under a lease was not protected activity. (See Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169, 1176 [tenant's failure to pay rent and common-area-maintenance charges under lease was not protected activity].) Vivera does not argue otherwise. Nor does Vivera attempt to identify any allegation of protected activity in the complaint, let alone such an allegation that supplied an element of Blaine Holding's unlawful detainer claim. It therefore fails to show any error in the trial court's conclusion that the claim did not arise from protected activity. (See Wilson, supra, 7 Cal.5th at 887.)
At the hearing on the anti-SLAPP motion, Vivera's counsel acknowledged "the claim is simply unlawful detainer" premised on violations of the lease. Rather than further address the nature of the claim, counsel addressed Blaine Holding's motive for bringing it (a topic we address below).
We reject Vivera's reliance on its prior litigation and its January 2019 email, neither of which was mentioned in Blaine Holding's instant complaint. Whether these matters might have motivated the filing of the instant complaint, as Vivera argues, is irrelevant to the question whether these matters supplied an element of Blaine Holding's claim. (See Castleman v. Sagaser, supra, 216 Cal.App.4th at 493-494; City of Cotati v. Cashman, supra, 29 Cal.4th at 78.) They did not. (See Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 135, 139 [rejecting defendant's reading of complaint as arising from prior action mentioned nowhere within it]; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 475-477 [confining first-step review to conduct alleged in complaint].)
We question Vivera's claim that its January 2019 email was a protected settlement communication, given that the email did not mention any litigation (existing or anticipated) or the release of any claim. (See ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1048-1049 [landlord's rejection of amended request to consent to assignment was not protected settlement communication, despite its relation to pending litigation over landlord's rejection of earlier request, where landlord's acceptance would not have resolved pending claims]; McConnell v. Innovative Artists Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 178 [defendant's letters to plaintiffs were not protected activity, even though letters were written immediately after plaintiffs filed earlier suits and for ostensible purpose of preparing for their resolution, where letters did not mention the suits or resolution thereof].) But we need not decide whether the email constituted protected activity, as Blaine Holding's instant claim did not arise from the email.
We further reject Vivera's attempt to rewrite Blaine Holding's instant complaint to incorporate allegations made only in Blaine Holding's prior action. Contrary to Vivera's contention, Blaine Holding's three-page form complaint in the instant action was not "merely a rewording" of its 24-page complaint in the prior action. The instant complaint omitted the prior action's forcible detainer claim. It further omitted all the allegations underlying the prior action's unlawful detainer claim, viz., that the lease was void ab initio due to Vivera's fraudulent inducement of Blaine Holding's consent, that Vivera had repudiated the lease via its January 2019 email, that Blaine Holding had terminated the lease, and that Vivera had breached the lease by unlawfully manufacturing, distributing, and storing products at the Premises. Further, the instant complaint's sole substantive allegation -- that Vivera had breached the lease by failing to pay rent and other sums -- was absent from the prior action. Vivera cannot meet its burden to establish the allegedly prohibited nature of Blaine Holding's instant claim by relying on allegations made only in a different action, in support of different claims.
We find inapposite Vivera's cited cases concerning the relation between original and amended complaints in the same action, raising the same claim. (See Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1042-1043 & fn. 25; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 360-361.)
Finally, we reject Vivera's argument -- raised for the first time in its appellate reply brief -- that Blaine Holding's allegations in its prior action were judicial admissions regarding the nature of its instant claim. Vivera doubly forfeited this argument: first by failing to raise it in the trial court, and then by failing to raise it in its opening appellate brief. (See People v. Morales (2020) 10 Cal.5th 76, 98 [finding evidentiary argument "doubly forfeited" by appellant's failure to either make objection in trial court or raise issue on appeal before reply brief].) We find Vivera's failure to raise its judicial-admissions argument in the trial court particularly significant because a trial court "'has discretion to relieve a party from the effects of a judicial admission . . . .'" (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452, fn. 2, quoting 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 454, p. 587.) In any event, Vivera's argument lacks merit. Blaine Holding made no allegation in its prior action concerning the nature of its then-future claim in this action. Thus, even assuming, arguendo, that Blaine Holding's prior allegations were judicial admissions of the facts alleged, they were not judicial admissions of the nature of the instant claim. (See 4 Witkin, Cal. Procedure (5th ed. 2020) Pleading § 452 [judicial admission "is a waiver of proof of a fact"].)
The judicial-admissions cases on which Vivera relies are inapposite, as none addressed the anti-SLAPP statute or its arising-from requirement. (See City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 578 [affirming summary judgment for defendants on grounds that plaintiff's asbestos-installation claims were time-barred and failed to state causes of action]; Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1428 [affirming summary judgment for defendant on ground that plaintiffs' personal injury claims were time-barred]; Joslin v. Marin Municipal Water Dist. (1967) 67 Cal.2d 132, 135, 149 [affirming summary judgment for defendant on ground that defendant did not violate plaintiffs' riparian rights].)
In sum, because Vivera failed to identify any allegation of protected activity in Blaine Holding's instant complaint, it failed to show that Blaine Holding's instant claim arose from protected activity. (See Wilson, supra, 7 Cal.5th at 887; Moriarty v. Laramar Management Corp., supra, 224 Cal.App.4th at 139.) Accordingly, the trial court properly denied Vivera's anti-SLAPP motion.
C. Blaine Holding's Request for Sanctions
In its appellate brief, Blaine Holding requests that we sanction Vivera for pursuing this appeal, which Blaine Holding characterize as frivolous and dilatory, by remanding to the trial court for an award of attorney's fees. Where, as here, we decline to impose sanctions on our own motion, we may impose sanctions for a frivolous or dilatory appeal only on a party's motion. (Cal. Rules of Court, rule 8.276(a)(1).) In our order denying Blaine Holding's motion to dismiss the appeal, we cited this rule and invited Blaine Holding to file a motion for sanctions. Blaine Holding declined to do so. Because it requests sanctions only in its brief, and not in a procedurally proper motion, we deny its request. (See Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919; Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858-859.)
We note that the trial court's omission of an award of attorney's fees implied a finding that Vivera's motion was neither frivolous nor dilatory. (See Code Civ. Proc., § 425.16, subd. (c)(1) [court "shall" award fees upon finding that motion is frivolous or dilatory].) Blaine Holding does not challenge that implied finding on appeal. Nor does it contend Vivera's arguments on appeal are more frivolous, or more revealing of a dilatory purpose, than Vivera's arguments in the trial court. On the contrary, it acknowledges that Vivera "recapitulates" the arguments it made below.
DISPOSITION
The order denying Vivera's anti-SLAPP motion is affirmed. Blaine Holding is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.