Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. BC362909, Ralph W. Dau, Judge.
Patricia J. Barry, in pro. Per.; and Stephen F. Rohde for Defendant and Appellant. [Retained.]
Law Office of Robert E. Drescher and Robert E. Drescher for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Defendant Patricia Barry appeals an order denying her Anti-SLAPP special motion to strike the complaint of plaintiff Cytodyn, which alleged that Barry committed legal malpractice in representing Cytodyn as its attorney in an underlying action. Because legal malpractice is not an activity protected under the Anti-SLAPP statute (Code Civ. Proc., § 425.16), we find that Barry has not satisfied her burden of showing that Cytodyn’s complaint “arose from” protected free speech or petitioning activity. Therefore the trial court properly denied Barry’s special motion to strike. We also find that Barry’s special motion to strike was frivolous because it was filed late and because it was devoid of merit, and therefore the trial court’s order awarding attorney’s fees and costs, made pursuant to section 425.16, subdivision (c), should be affirmed. Although Barry seeks to appeal a discovery sanctions order arising from the grant of Cytodyn’s motion to compel Barry’s deposition, a discovery sanctions order is not appealable. We deny Cytodyn’s request for sanctions on appeal. We affirm the order denying Barry’s special motion to strike and the order awarding attorney’s fees and costs to Cytodyn.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
FACTUAL and PROCEDURAL HISTORY
The Underlying Action, Cytodyn v. Amerimmune: Cytodyn of New Mexico, Inc. (Cytodyn) is a Colorado corporation licensed to do business in California. Its president and CEO, Allen Allen, invented Cytolin, an AIDS drug. In February 2003, Cytodyn hired Patricia Barry, an attorney, to represent Cytodyn in a lawsuit against Amerimmune Pharmaceuticals, Inc. (Amerimmune) and its corporate directors, which alleged that Amerimmune had breached its licensing agreement with Cytodyn. Barry filed a complaint against Amerimmune and its board of directors, alleging causes of action for unfair business competition (Bus. & Prof. Code, § 17200), intentional breach of licensing agreement, fraud, unjust enrichment, and interference with business relationship.
Cytodyn alleges that while representing Cytodyn in the lawsuit against Amerimmune, Barry engaged in improper conduct or legal malpractice by failing to conduct necessary discovery; by including a request for double damages pursuant to the Uniform Trade Secret Act in Cytodyn’s complaint; by failing to attend an October 1, 2004, ex parte hearing; by appearing in court at an October 4, 2004, hearing on Amerimmune’s summary judgment motion in a disheveled state; by submitting an improper request for judicial notice; by filing an inadequate opposition to the summary judgment motion, which caused Cytodyn to have to pay $151,451.44 in attorney fees to the Amerimmune defendants; by withdrawing suddenly as Cytodyn’s attorney 30 days before trial; and by intentionally misrepresenting to Allen that she would defeat Amerimmune’s summary judgment motion. Cytodyn also alleges that in an appeal filed for Cytodyn, Barry failed to file an opening brief, causing the appeal to be dismissed, and that Barry withheld this information from Cytodyn. Cytodyn also alleges that Barry overbilled Cytodyn for work performed and billed Cytodyn for incompetent work.
The trial court granted Amerimmune’s summary judgment motion on October 4, 2004. On October 9, 2004, Barry informed Allen and Ronald J. Tropp (a Cytodyn director and an attorney) she was finished as Cytodyn’s attorney and that Cytodyn should find other counsel to represent it at trial, and gave them a substitution of attorney form. Executed substitution of attorney forms were filed on December 1, 2004. Judgment was entered in favor of defendants (except for defendant and cross-complainant Rex Lewis) and against plaintiff Cytodyn on November 9, 2004.
On November 10, 2005, the trial court granted defendants’ motion to recover attorney’s fees of $147,708.75 and of costs of $3,742.69, pursuant to Civil Code section 3426.4 (which authorizes the trial court to award attorney’s fees and costs to the prevailing party if a claim of misappropriation of a trade secret is made in bad faith).
On September 22, 2005, defendant Lewis dismissed his cross-complaint without prejudice, and on November 10, 2005, a judgment was entered in favor of Lewis and against plaintiff Cytodyn. On December 7, 2005, notice of entry of judgment was served on Cytodyn.
Barry’s Notice of Client’s Right to Arbitration: On September 26, 2006, Barry sent a “Notice of Client’s Right to Arbitration” to Cytodyn. It stated that Barry intended to file a lawsuit or arbitration against Cytodyn regarding its failure to pay $11,318.63 in fees and costs for professional services in Cytodyn v. Amerimmune.
Cytodyn v. Barry: On December 6, 2006, Cytodyn filed a complaint against Barry alleging causes of action for legal malpractice, breach of fiduciary duty, breach of contract, fraud, unfair business practices (Bus. & Prof. Code, § 17200), and negligent misrepresentation. The complaint was based on Barry’s representation of Cytodyn in Cytodyn v. Amerimmune and the cross-complaint in that action.
Service of the summons and complaint was made on December 22, 2006.
On January 26, 2007, plaintiff served Barry with a notice of taking of Barry’s deposition on February 12, 2007, and with a request for production of documents. Barry did not appear at the February 12, 2007, deposition.
On February 28, 2007, plaintiff filed a motion to compel Barry’s deposition and for $3,055.00 in sanctions. A hearing was set for March 29, 2007.
Barry’s Special Motion to Strike: On March 7, 2007, Barry filed an anti-SLAPP special motion to strike Cytodyn’s complaint. Barry’s motion alleged that Cytodyn’s complaint was based on Barry’s administrative petitioning activity (the notice of client’s right to arbitration) arising from her legal representation of Cytodyn, and that Cytodyn had no likelihood of prevailing.
On March 29, 2007, the trial court continued the hearing on plaintiff’s motion to compel Barry’s deposition, and request for sanctions.
In an April 2, 2007, minute order, the trial court granted Cytodyn’s motion to compel Barry’s deposition, ordered Barry to appear for deposition within 30 days, and ordered Barry to pay attorney’s fees and costs of $1,255.00 to Cytodyn’s attorneys within 30 days. The minute order also reflected the trial court’s denial of Barry’s special motion to strike; a formal written order with this ruling followed on April 3, 2007.
On April 3, 2007, the trial court denied Barry’s special motion to strike the complaint and all six causes of action. The trial court’s order stated that Barry’s special motion to strike was filed more than the 60 days after service of the complaint in violation of section 425.16, subdivision (f), and that Barry’s 24-page special motion to strike exceeded the 15-page limit in California Rules of Court, rule 3.1113(d). The trial court determined that Barry did not base the special motion to strike on constitutionally protected activity. Cytodyn’s complaint alleged that Barry failed to prosecute the underlying action by failing to conduct discovery, to adequately prepare for trial, and to provide a separate statement of disputed and undisputed material facts in opposing a summary judgment motion. Because Cytodyn’s malpractice action was not based on the content of declarations, motions, or other papers filed in a previous case, there was no claim that Cytodyn’s action against Barry was based on petitioning activity protected by the Anti-SLAPP statute, and there was no petitioning by Barry. Finding that Barry brought a procedurally improper Anti-SLAPP motion and failed to demonstrate that conduct alleged in Cytodyn’s action was protected activity, the trial court denied Barry’s special motion to strike.
The trial court further found that Barry had filed a frivolous Anti-SLAPP motion, not based on protected activity and procedurally improper, and ordered Barry to pay reasonable attorney’s fees and costs of $1,500.00.
Barry’s Appeal: Barry filed a timely notice of appeal from the order denying her special motion to strike (an appealable order pursuant to § 425.16, subd. (i) and § 904.1, subd. (a)(13)), and from the order compelling Barry’s deposition.
ISSUES
This appeal presents the following issues:
1. Whether the trial court correctly denied the special motion to strike based on Barry’s failure to satisfy the threshold requirement of showing that Cytodyn’s complaint arose from Barry’s exercise of her petitioning or free speech right;
2. Whether the trial court correctly made an award of attorney’s fees and costs in favor of Cytodyn and against Barry for filing a frivolous special motion to strike;
3. Whether the discovery sanctions order is appealable; and
4. Whether Cytodyn’s request for attorney’s fees and costs as sanctions for Barry’s frivolous appeal should be granted.
DISCUSSION
1. Barry Does Not Satisfy the Threshold Requirement of Showing That Cytodyn’s Complaint “Arises From” Barry’s Exercise of Her Petitioning or Free Speech Right, and Denial of Barry’s Anti-SLAPP Motion to Strike Must Be Affirmed
a. The Anti-SLAPP Statute and the Standard of Review
“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
Section 425.16, subdivision (b)(1) provides that procedural mechanism, a “special motion to strike:” “(b)(1) 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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
“In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. [Citation.] Under Code of Civil Procedure section 425.16 ‘[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 . . . shall be subject to a special motion to strike. . . .’ ([§] 425.16, subd. (b)(1).)” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
“If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.] ‘In order to establish a probability of prevailing on the claim (Code Civ. Proc., § 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “ ‘state[ ] and substantiate[ ] a legally sufficient claim.’ ” [Citations.] Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” [Citations.]’ [Citation.]” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
“An appellate court independently reviews the trial court’s order granting a special motion to strike under section 425.16.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.) In making these determinations, this court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).)
b. Barry Has Not Shown That Cytodyn’s Complaint “Arises From” Barry’s Exercise of Her Free Speech or Petition Rights, Requiring Affirmance of the Order Denying Barry’s Special Motion to Strike
With regard to whether defendant Barry made a threshold showing that the challenged causes of action arise from protected activity, Barry’s motion to strike alleged that all causes of action in Cytodyn’s complaint were based on Barry’s administrative petitioning activity arising from her legal representation of Cytodyn and disputed attorney fees. After summarizing the causes of action in Cytodyn’s complaint, Barry’s memorandum of points and authorities stated: “[Cytodyn attorney Robert E.] Drescher and Cytodyn are suing Barry because of her own administrative petitioning activity, i.e., the Notice of Client’s Right to Fee Arbitration which she mailed to [Cytodyn], together with a Statement and the final invoice, to collect her fees on September 26, 2006[.]” Barry’s memorandum of points and authorities cited Business and Professions Code section 6201, subdivision (a), requiring Barry’s written notice to her client before or at the time of the commencement of service of summons or claim in an action against the client, and making failure to give this notice a ground for dismissal of the action or other proceeding.
The constitutional right to petition includes the filing of litigation or seeking of administrative action. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) More specifically, “initiation of a State Bar-sponsored fee arbitration proceeding is likewise covered [as] an official proceeding established by statute to address a particular type of dispute.” (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358.)
The anti-SLAPP statute, however, requires an additional element: the moving defendant has the burden of showing that the cause of action “arises from” an act of defendant in furtherance of defendant’s right of petition or free speech. Rejecting what might be called the post hoc, ergo propter hoc fallacy, the California Supreme Court has stated that “the mere fact that an action was filed after protected activity took place does not mean it arose from that activity.” (City of Cotati v. Cashman, supra, at pp. 76-77.) “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.’ ” (Id. at p. 77.) Simply put, “arising from” does not mean “in response to.” (Ibid.) Instead, the moving defendant must demonstrate that the claim is based on conduct in exercise of petition or free speech rights. (Ibid.; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630.)
“Post hoc, ergo propter hoc,” or “after this, therefore because of this,” is “the fallacy of arguing from temporal sequence to a causal relation.” (Webster’s 9th New Collegiate Dict. (1985) p. 919.) Automatically construing an action filed by plaintiff that followed defendant’s sending of a statutory notice of client’s right to arbitration as “arising from” that notice would in effect make any such action subject to an anti-SLAPP motion to strike, an absurd result. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77.) A legal malpractice action may arise from the legal representation alleged in the notice of client’s right to arbitration, without necessarily “arising from” the sending of that notice itself. (Id. at p. 78.)
“[T]he statutory phrase ‘cause of action . . . arising from’ 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.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) A claim “arises from” an act when the act “ ‘ “forms the basis for the plaintiff’s cause of action” . . . . ’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.)
Cytodyn’s complaint was based on the following factual allegations: that pursuant to a February 2003 written agreement, Barry represented Cytodyn in a matter filed in Los Angeles County Superior Court on February 11, 2003, in which Cytodyn alleged claims against Rex H. Lewis and other persons for violating Business and Professions Code section 17200, inducement of intentional breach of licensing agreement, fraud, and unjust enrichment. Defendants’ cross-complaint alleged that Cytodyn committed securities fraud, interfered with prospective business interests, and committed libel, slander, and intentional infliction of emotional distress. Cytodyn’s complaint against Barry alleged that Barry failed to prosecute the case on behalf of Cytodyn by failing to properly defend Cytodyn in opposition to defendants’ motion for summary judgment, failing to competently prosecute Cytodyn’s complaint, failing to properly conduct discovery, failing to properly investigate the case and to gather important evidence, and failing to properly prepare the case for trial. The complaint also alleged that Barry substantially prejudiced Cytodyn by terminating her legal representation of Cytodyn less than 30 days before trial. Cytodyn’s complaint cited the order granting summary judgment for defendants, which stated that the complaint Barry filed on behalf of Cytodyn did not properly allege a declaratory relief claim, that Barry submitted opposition to the summary judgment motion that was defective because it contained no citations to admissible evidence, that Barry submitted an improper request for judicial notice, and that other than the defective request for judicial notice Barry’s opposition made no attempt to submit evidence or to raise triable issues of fact with respect to any claims. The complaint alleged that from February 2003 to September 8, 2004, Cytodyn paid Barry more than $70,000, but Barry failed to properly itemize charges, failed to submit invoices documenting work performed, and failed to comply with Business and Professions Code section 6148, subdivision (b). All six causes of action are based on Barry’s conduct of this litigation and her billing of Cytodyn for her legal services.
Cytodyn’s complaint makes no reference to the notice of client’s right to arbitration which Barry sent to Cytodyn.
Barry’s declaration in support of her special motion to strike contains no argument or evidence that Cytodyn’s causes of action were themselves based on an act in furtherance of Barry’s right of petition or free speech.
We conclude that Cytodyn’s complaint was not based on, and did not arise from, Barry’s sending of the notice of client’s right to arbitration. Instead it was based on and “arose from” her allegedly inadequate, flawed, and defective provision of legal services while representing Cytodyn as its attorney. “A legal malpractice action alleges the client’s attorney failed to competently represent the client’s interests. Legal malpractice is not an activity protected under the anti-SLAPP statute.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1535.) “In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so.” (Id. at p. 1540.)
Barry has not met her burden of demonstrating that the complaint arose from her exercise of her free speech or petition rights. Thus the burden does not shift to plaintiff Cytodyn, and we need not address whether Cytodyn has established that there is a probability that the plaintiff will prevail on the claim. (Jespersen v. Zubiate-Beauchamp, supra, 114 Cal.App.4th at p. 632; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733.)
2. The Order Awarding Attorney’s Fees and Costs Is Affirmed
Barry claims that the trial court lacked jurisdiction to award attorney’s fees and costs to Cytodyn pursuant to section 128.5, and that this order should be reversed because Barry’s anti-SLAPP motion was not frivolous.
a. The Order Awarding Attorney’s Fees and Costs Was Made Pursuant to § 425.16, Subdivision (c), and Is Therefore Appealable as a Collateral Order Involving the Payment of Money
Section 425.16, subdivision (c), the attorney fee provision of the Anti-SLAPP statute, entitles a defendant prevailing on a special motion to strike to recover attorney’s fees and costs. A plaintiff prevailing on such a motion, however, receives a different treatment: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (§ 425.16, subd. (c).)
The order from which Barry appeals awards attorney’s fees and costs of $1,500 to plaintiff’s counsel. If this order is “an order directing payment of monetary sanctions by a party or an attorney for a party[,]” it is not directly appealable, because the $1,500 amount does not exceed $5,000. (§ 904.1, subd. (a)(12); see Doe v. Luster (2006) 145 Cal.App.4th 139, 146.) However, the award is not a sanctions order made under the authority of section 128.5, for two reasons. First, as Barry points out, section 128.5 sanctions are limited to bad faith actions or tactics arising “from a complaint filed, or a proceeding initiated, on or before December 31, 1994.” (§ 128.5, subd. (b)(1).) Cytodyn’s complaint was filed on December 8, 2006. Second, the statutory authority for the trial court’s attorney fee and cost award was section 415.16, subdivision (c), not section 128.5. “Substantively, section 128.5 does not replace section 425.16.” (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.) Instead section 425.16, subdivision (c), incorporates section 128.5, which means that the trial court must use the procedures and apply the substantive standard of section 128.5 in deciding whether to award attorney fees and costs under section 425.16, subdivision (c). (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 817.) Notwithstanding the limitation of section 128.5 to actions filed before January 1, 1995, “the procedures and standards of section 128.5 remain operative to guide the implementation of the attorney fee provision of section 425.16, subdivision (c).” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199, fn. 9.)
Barry’s notice of appeal does not identify the appeal as taken from the order granting attorney’s fees and costs. It states that the appeal is taken from an order of April 2, 2007, which is a minute order. The appealable order is the trial court’s formal, signed order of April 3, 2007. We construe a notice of appeal liberally in favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2); Setliff v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1533), and thus deem the appeal to have been taken from the April 3, 2007, signed order, which includes the award of attorney’s fees and costs.
The key point is that section 425.16 provides authority for this award, not section 128.5. This award of attorney’s fees and costs is not a sanctions order pursuant to section 128.5, and thus the section 904.1, subdivision (a)(12), prohibition of appeals from such sanctions orders of $5,000 or less does not apply to this order. Instead this award of attorney fees and costs, made as part of an appealable order denying a special motion to strike, is appealable as a collateral order involving the payment of money. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 654-655.)
b. The Special Motion to Strike Was Frivolous Because It Was Late and Because It Was Devoid of Merit
Barry argues that her anti-SLAPP motion to strike did not satisfy the definition of “frivolous” as “totally and completely without merit.” A determination of frivolousness requires a finding that the anti-SLAPP motion is “totally and completely without merit” (§ 128.5, subd. (b)(2)), which means that any reasonable attorney would agree that the anti-SLAPP motion is totally devoid of merit. (Moore v. Shaw, supra, 116 Cal.App.4th at p. 199.) This court reviews a trial court’s order awarding attorney fees and costs pursuant to section 425.16, subdivision (c), for abuse of discretion. (Ibid.)
i. Filing a Late Anti-SLAPP Special Motion to Strike Without the Trial Court’s Discretionary Ruling to Accept a Late Motion Was Frivolous
Section 425.16, subdivision (f) allows the filing of an anti-SLAPP special motion to strike “within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” This statute “expressly provides that a late anti-SLAPP motion shall not be filed unless the court affirmatively exercises discretion to permit it to be filed.” (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 286.) There is no right to file an anti-SLAPP suit motion beyond the deadline. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 840.) The 60-day period commences with service of the complaint, which was made by Cytodyn on December 22, 2006. Thus Barry’s filing of a special motion to strike Cytodyn’s complaint on February 28, 2007, was after the 60-day period. Barry’s motion made no request to file a late motion, and contained no justification to support the exercise of the trial court’s discretion to allow such late filing. Therefore the late filing of the motion was grounds for denying it, and any reasonable attorney would agree that filing a late anti-SLAPP special motion to strike without the trial court’s discretionary ruling to accept such late motion is frivolous.
ii. Although Barry’s Motion to Strike Exceeded the Page Limit for Opening Memoranda in Rule 3.1113(d), This Did Not Make the Motion “Frivolous”
Barry’s 24-page special motion to strike also exceeded the 15-page limit for opening memoranda in California Rules of Court, rule 3.1113(d). However, rule 3.1113(g) states that “[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” Rule 3.1300(d) states: “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late-filed paper, the minutes or order must so indicate.” The trial court’s order denying the special motion to strike noted that the motion exceeded the page limit in rule 3.1113(d) and was “procedurally improper.” The order, however, did not indicate that the trial court exercised its discretion to refuse to consider Barry’s motion. We therefore do not find that the motion was “frivolous” on this ground.
iii. Any Reasonable Attorney Would Agree That Barry’s Special Motion to Strike Was Devoid of Merit, and the Award of Attorney’s Fees and Costs Is Affirmed
Barry failed to meet her burden of showing that the causes of action in Cytodyn’s complaint arose from petitioning or free speech activity. We have explained that although the constitutional right to petition included Barry’s initiation of a fee arbitration proceeding, all six causes of action in Cytodyn’s complaint were based on Barry’s conduct of litigation while Cytodyn’s attorney and her billing of Cytodyn for her legal services, and Cytodyn’s complaint made no reference to the notice of client’s right to arbitration Barry sent to Cytodyn. Cytodyn’s complaint instead “arose from” Barry’s allegedly inadequate, flawed, and defective provision of legal services while representing Cytodyn. “Legal malpractice is not an activity protected under the anti-SLAPP statute.” (Kolar v. Donahue, McIntosh & Hammerton, supra, 145 Cal.App.4th at p. 1535.) “In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so.” (Id. at p. 1540.) As our previous discussion pointed out, it is beyond dispute that the Cytodyn complaint for malpractice did not arise from Barry’s sending of a notice of client’s right to arbitration. Because of this fact, any reasonable attorney would agree that Barry’s anti-SLAPP motion was devoid of merit. Therefore the award was mandatory (§ 425.16, subd. (c); Moore v. Shaw, supra, 116 Cal.App.4th at p. 200) and is affirmed.
3. The Discovery Sanction Order Is Not an Appealable Order
Barry claims that the trial court erroneously ruled on plaintiff’s motion to compel Barry’s deposition and erroneously imposed sanctions.
On February 28, 2007, Cytodyn filed a motion to compel Barry’s deposition and for sanctions against Barry pursuant to section 2025.440, subdivision (b) and 2023.010, subdivision (a), with a hearing set for March 29, 2007.
Barry filed her special motion to strike Cytodyn’s complaint on March 7, 2007. Pursuant to section 425.16, subdivision (g), this motion stayed all discovery proceedings, including motions to compel until the trial court ruled on the motion. (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183; Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1128.)
On March 29, 2007, the trial court continued plaintiff’s motion to compel Barry’s deposition and plaintiff’s request for sanctions to April 2, 2007, the date of the hearing on Barry’s special motion to strike. On March 29, 2007, Barry filed opposition to the motion to compel based on the stay in section 425.16, subdivision (g).
On April 2, 2007, the trial court, having denied Barry’s special motion to strike, granted Cytodyn’s motion to compel Barry’s deposition, ordered Barry to appear for deposition within 30 days, and ordered Barry to pay attorney’s fees and costs of $1,255 to plaintiff’s counsel.
Barry concedes that the order compelling Barry’s deposition is now moot, but contends that the sanctions order is not moot, and argues that it should be reversed.
Orders imposing discovery sanctions, however, are not separately appealable unless they exceed $5,000. Discovery sanction orders of $5,000 or less can be reviewed only in an appeal from the final judgment in the main action. (§ 904.1, subds. (a)(12), (b); Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.) Therefore this discovery sanction order is not appealable.
4. Sanctions on Appeal Requested by Plaintiff Are Denied
Plaintiff seeks an order imposing sanctions on Barry for filing a frivolous appeal and for including in the record matter not reasonably material to the determination of the appeal. (See Cal. Rules of Court, rule 8.276(a)(1) and (2).)
California Rules of Court, rule 8.276(a) authorizes this court to impose sanctions “on a party or an attorney for: ¶ (1) Taking a frivolous appeal or appealing solely to cause delay; ¶ (2) Including in the record any matter not reasonably material to the appeal’s determination[.]” Rule 8.276(b)(1) states: “A party’s motion under (a) must include a declaration supporting the amount of any monetary sanction sought and must be served and filed before any order dismissing the appeal but no later than 10 days after the appellant’s reply brief is due.” Defendants have not filed the required declaration. We therefore deny the request for sanctions on appeal.
DISPOSITION
The orders denying defendant’s special motion to strike and imposing attorney’s fees and costs are affirmed. The appeal from the order imposing discovery sanctions is dismissed. Plaintiff’s request for sanctions on appeal is denied. Costs on appeal are awarded to plaintiff.
We concur: KLEIN, P. J., CROSKEY, J.