Opinion
D082523
04-23-2024
JAMES GODES, Plaintiff, Cross-defendant and Appellant, v. DAVID RAINE, Defendant, Cross-complainant and Respondent.
Godes &Preis, Joseph M. Preis; Buchalter and Robert M. Dato for Plaintiff, Cross-defendant and Appellant James Godes. Law Offices of Robert L. Hill and Robert L. Hill for Defendant, Crosscomplainant and Respondent David Raine.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2021-00026997-CU-BC-NC, Blaine K. Bowman, Judge. Affirmed.
Godes &Preis, Joseph M. Preis; Buchalter and Robert M. Dato for Plaintiff, Cross-defendant and Appellant James Godes.
Law Offices of Robert L. Hill and Robert L. Hill for Defendant, Crosscomplainant and Respondent David Raine.
McCONNELL, P. J.
I
INTRODUCTION
Cross-defendant James Godes, a homeowner and attorney, hired crosscomplainant David Raine, a licensed contractor, to renovate his home. After the home renovation was underway, Godes became dissatisfied with the progress, quality, and cost of the project. Over a six-week span, he sent several text messages to Amy Jensen, a real estate agent and personal friend who had referred Godes to Raine for the renovation. Godes' text messages disparaged Raine and urged Jensen to stop referring her real estate clients to Raine.
In an ensuing lawsuit between Godes and Raine, Raine cross-claimed against Godes for trade libel, defamation, intentional interference with prospective business relations, and negligent interference with prospective business advantage based on the disparaging text messages. Godes filed a special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court denied the motion after finding the text messages giving rise to the cross-claims were not protected communications pursuant to the anti-SLAPP statute.
SLAPP is an acronym that refers to a Strategic Lawsuit Against Public Participation. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1242.)
Further undesignated statutory references are to the Code of Civil Procedure.
Godes appeals the denial of his anti-SLAPP motion and challenges the trial court's finding that the text messages were not protected communications. Additionally, he argues that Raine did not establish a probability of success for any of his cross-claims. We agree with the trial court's finding. The text messages were not protected communications within the meaning of the anti-SLAPP statute. Accordingly, we affirm the order denying the anti-SLAPP motion.
II BACKGROUND
The following background is drawn from the pleadings and the evidence submitted in connection with the anti-SLAPP motion. (Miller v. Zurich American Ins. Co. (2019) 41 Cal.App.5th 247, 250.)
A. The Parties and Pleadings
Godes is a named partner at the law firm Godes &Preis LLP. In 2020, Godes and his wife bought a home in Rancho Santa Fe. Jensen is a personal friend of the Godeses and she served as their real estate broker during the home buying process. After the home sale closed, Jensen referred the Godeses to Raine to renovate their home. At the time, Raine was working on a kitchen remodel at Jensen's own home. Jensen had also referred several of her other real estate clients to Raine for their home renovations.
In December 2020, the Godeses and Raine executed a home remodeling contract, but the parties' relationship quickly soured. According to Godes, Raine stole money from him under the guise the funds would be used for materials and other renovation-related purposes. By contrast, Raine contends the Godeses tried to expand the scope of the remodeling project, but balked when the price tag for the project increased from the initial quote. He states he halted work on the project in late April 2021, at the request of the Godeses and in light of the parties' disagreements concerning the cost and scope of the project.
On June 1, 2021, Godes sent Raine a settlement demand letter on his law firm's letterhead. The letter accused Raine of billing Godes and his wife for uncompleted or substandard work, invoicing them for duplicative labor charges, failing to maintain worker's compensation coverage for his workers, and intentionally providing incorrect remodeling budgets, timelines, and accounting figures. The letter claimed the Godeses incurred more than $500,000 in resulting damages. It demanded a settlement of the parties' dispute for an undisclosed sum of money and set June 8, 2021, as the expiration date for the settlement demand. According to Godes, Raine did not respond to the settlement demand letter.
The Godeses retained legal counsel and, on June 22, 2021, they filed a complaint against Raine and other related defendants. The complaint asserted breach of contract, tort, and statutory causes of action against Raine based on the allegations of deficient performance, fraud, and misfeasance described in the settlement demand letter.
During the discovery phase of the case, the trial court compelled Godes and his wife to produce a series of text messages between Godes and Jensen, which were sent over a six-week span from April 26 to June 10, 2021. These text messages included the following messages from Godes to Jensen:
• April 26: "We are meeting with [Raine] at 5:30 today to give him an ultimatum. We will let you know if we end up firing him or he quits. He billed us another $9K for last week and got absolutely nothing accomplished."
• April 26: "Just got done. He is still on the job. My wife is much nicer than I am....[¶] [God] help him if he doesn't get this done as promised!"
• April 27: "[Raine] himself is here. ... He appears to be at least trying to get stuff done. He isn't happy....[¶] The whole thing is a joke."
• April 29: "I've now decided that [Raine] is a crook. It is beyond incompetence. It is going to cost a lot of money to remedy the mess that he has left here. He shouldn't be on your referral list going forward!"
• April 29: "[Raine] gave us another 'revised' budget yesterday of now $325,000, and is saying that a lot of stuff agreed to since the beginning (entryway, for example) was never part of the budget....[¶] Fraud."
• April 29: "He is such a scumbag!!!!"
• May 5: "You need to fire [Raine], formally. He is jerking you around. ... [¶] You need to be very direct. Like our 45th Prez 'you're fired!' "
• May 7: "[Raine] is a fraud. He billed us FOUR times for a kitchen sink (over $4,000), twice for bathroom tile ($3,700 each) and stuff for other jobs, among many other things. He is dead meat (legally-speaking)."
• May 7: "Ask [Raine's partner on the Godes home remodeling project] what he heard ... [Raine] ... saying about you at their team meeting yesterday[.] ... [¶] Apparently, [h]e said that you're a pain in the ass, always complaining and that he doesn't want to work with you. [¶] I am going to put him out of business. [¶] He is a real piece of shit."
• May 12: "[Raine] is saying that the whole project would have been done next week, and that it would have cost a total of $309K. Total horseshit."
• May 21: "[Raine] told his guys that he fired you, and he is not taking any more of your 'big jobs.' Fucker."
• June 1: "He's in over his head[.] [¶],,, I need to get in touch with his unhappy former clients. Besides you.:)"
• June 10: "Do you want to advertise on my new website? It is going to be called 'FuckDaveRaine.com' "
After these text messages were produced, Raine cross-complained against Godes for trade libel, defamation, intentional interference with prospective business relations, and negligent interference with prospective business advantage. He alleged the text messages were untrue, they "disparaged and demeaned the quality of [his] professional services," and they were "intended to disrupt [his] relationship with Ms. Jensen," who-up until that point-had been "a primary source of referrals to [him]." All of the text messages at issue were attached as an exhibit to the cross-complaint.
B. The Anti-SLAPP Proceedings
Godes filed a special motion to strike the entire cross-complaint under the anti-SLAPP statute. For purposes of the first anti-SLAPP prong, he argued the text messages giving rise to the cross-claims were sent in contemplation of litigation and, therefore, they were protected statements made in connection with an issue under consideration by a judicial body pursuant to section 425.16, subdivision (e)(2). With respect to the second anti-SLAPP prong, Godes argued Raine could not establish a probability of success for any of his cross-claims because the text messages were subject to the litigation privilege (Civ. Code, § 47, subd. (b)), and Raine could not prove he suffered any damages from them. Godes asserted Raine could not prevail on his trade libel or defamation causes of action, in particular, because the text messages were true. Finally, Godes argued the negligent interference with prospective business advantage cause of action did not have minimal merit because Raine and Jensen were no longer in an economic relationship with one another at the time Godes sent the text messages.
Godes submitted a declaration from Jensen with his anti-SLAPP motion. She averred that Raine remodeled her own kitchen at the same time he was remodeling the Godeses' home. She stated her kitchen remodel was a "nightmare," the work was shoddy in many respects, Raine "lashed out" and yelled at her during the remodel, and she needed to hire another contractor to finish the project due to Raine's slow progress and poor workmanship. She also said six to eight of her former clients were dissatisfied with work Raine had performed for them. Therefore, Jensen stated she would have discontinued her referral relationship with Raine regardless of the text messages she received from Godes.
Godes also filed a request for judicial notice. He sought judicial notice of case records, orders, and opinions from various civil lawsuits that were allegedly filed against Raine and his business entities; a felony information that was purportedly filed against Raine more than two decades ago; and a citation and civil penalty ostensibly issued against Raine by the Contractors State License Board for statutory violations that occurred in connection with the Godes remodeling project. Godes sought judicial notice of these documents to support his defense that his text messages were true.
Raine opposed the anti-SLAPP motion. He argued the text messages were not protected communications under section 425.16, subdivision (e)(2), and the litigation privilege did not apply to the messages, because they did not bear any relation to anticipated litigation; rather, they were ad hominem attacks on his character that were intended to disrupt his relationship with Jensen. Alternatively, Raine claimed the text messages were not protected because Godes did not contemplate litigation in good faith when he sent the text messages. Raine opposed Godes' truth defense by claiming he never disparaged Jensen (as Godes had stated in the text messages). Further, he argued he was damaged by the text messages because he and Jensen had a productive working relationship until April or May 2021, when Godes sent the text messages. Raine requested that the court award him $5,040 for the attorney's fees he incurred to oppose the anti-SLAPP motion.
Raine filed a declaration from himself together with his opposition. He described his version of the events that caused the deterioration of the parties' relationship-specifically, he claimed the Godeses expanded the scope of their remodeling project and then cut him out of the project entirely. He denied making the disparaging statements about Jensen that Godes attributed to him. Further, he stated he and Jensen worked well together and communicated in a productive manner until April or May 2021, when "Godes started sending her text messages attacking [his] credibility, professionalism, and honesty." Raine also objected to the request for judicial notice on grounds that the matters subject to the request were irrelevant, unduly prejudicial, and inadmissible as improper character evidence.
After a hearing, the trial court found the text messages were not protected communications and it therefore denied the anti-SLAPP motion based on Godes' failure to satisfy his first-prong burden. The court found Godes sent the text messages with the "aim of ruining [Raine's] reputation" and "commiserating about, or seeking validation of, a certain distaste for [Raine]." It acknowledged the text messages were "peppered with a few legal references - such as to the word 'fraud' or to the assertion that [Raine] is 'dead meat (legally-speaking),'" but these were "too thin a reed upon which to base a finding that these communications, when viewed in their totality and in context, were for the contemplation of litigation in good faith." Because the motion failed at the first prong, the court did not assess whether the cross-claims had a probability of success under the second prong, nor did it rule on Godes' request for judicial notice (which was relevant only to the second prong). Although the court denied the anti-SLAPP motion, and described it as "pernicious," the court found the motion was not frivolous. Therefore, it denied Raine's request for attorney's fees.
III DISCUSSION
A. The Anti-SLAPP Statute
"Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim '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.'" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson).)
"A court evaluates an anti-SLAPP motion in two steps. 'Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected [speech or petitioning] activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit."' [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim." (Wilson, supra, 7 Cal.5th at p. 884.)
The trial court denied the anti-SLAPP motion after finding that Godes failed to satisfy his first-step burden under the anti-SLAPP statute. "The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A 'claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.' [Citation.] To determine whether a claim arises from protected activity, courts must 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of' "act[s]"' protected by the anti-SLAPP statute." (Wilson, supra, 7 Cal.5th at p. 884.) In the trial court, Godes argued the text messages giving rise to all four cross-claims fell within just one category of protected acts, which encompasses, "any written or oral statement or writing made in connection with an issue under consideration or review by a ... judicial body ...." (§ 425.16, subd. (e)(2).)
At the second step of the analysis, the burden shifts to Raine to show that his cross-claims have a probability of success. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) The second step has been described" 'as a "summary-judgment-like procedure." [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] "[C]laims with the requisite minimal merit may proceed." '" (Ibid.)
" 'We review de novo the grant or denial of an anti-SLAPP motion.' [Citation.] 'We therefore engage in the same two-step process that the trial court undertakes in assessing an anti-SLAPP motion.'" (Divine Food &Catering, LLC v. Western Diocese of the Armenian Church of North America (2023) 92 Cal.App.5th 1048, 1063.)
B. The Cross-Complaint does not Arise from Protected Communications
As noted, Godes bears the first-step burden of establishing that all four of the cross-claims arise from protected speech or petitioning activities in which he has engaged. (Wilson, supra, 7 Cal.5th at p. 884.) Both parties assume that Godes' act of sending text messages to Jensen is the liabilityproducing conduct that forms the basis of the cross-claims. We agree with, and accept, this assumption. Thus, our task is to decide whether the text messages fall within one or more of the four categories of protected speech and petitioning conduct set forth in section 425.16, subdivision (e).
In Godes' appellate briefs, he does not identify any particular category, or categories, of protected conduct within which the text messages might fall. Instead, he broadly states the text messages "are protected by the litigation privilege" originating from Civil Code section 47. Along similar lines, Raine claims Godes has not satisfied his first-step burden because the text messages "are not protected under the litigation privilege." In making these arguments, both parties appear to labor under a misimpression about the interplay between Civil Code section 47 and the anti-SLAPP statute.
The litigation privilege derives from Civil Code section 47, which states, in part, "A privileged publication or broadcast is one made: [¶] ... (b) In any ... (2) judicial proceeding." (Civ. Code, § 47, subd. (b)(2).) "The privilege established by this subdivision often is referred to as an 'absolute' privilege, and it bars all tort causes of action except a claim for malicious prosecution." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) The litigation privilege "is not limited to statements made in a courtroom," and can encompass "statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit." (Id. at p. 361; see Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 30 (Edwards) ["courts have applied the judicial privilege to certain discrete categories of communications made in advance of actual litigation"].)" 'The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.'" (Flatley v. Mauro (2006) 39 Cal.4th 299, 321 (Flatley).)
"There is, of course, a relationship between the litigation privilege and the anti-SLAPP statute. Past decisions of [the Supreme Court] and the Court[s] of Appeal have looked to the litigation privilege as an aid in construing the scope of [section 425.16,] subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry-that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivisions (e)(1) and (2)." (Flatley, supra, 39 Cal.4th at pp. 322-323, italics added.) "The litigation privilege is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing." (Id. at p. 323.)
"Notwithstanding this relationship between the litigation privilege and the anti-SLAPP statute ... the two statutes are not substantively the same." (Flatley, supra, 39 Cal.4th at p. 323 .) "The former enshrines a substantive rule of law that grants absolute immunity from tort liability for communications made in relation to judicial proceedings [citation]; the latter is a procedural device for screening out meritless claims." (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 737 (Jarrow Formulas).)
The litigation privilege and the anti-SLAPP statute also serve "quite different purposes." (Flatley, supra, 39 Cal.4th at p. 322.) Unlike the litigation privilege, the anti-SLAPP statute "is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process (§ 425.16, subd. (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights." (Flatley, at p. 324.)
In light of these differences, "the scope of protection for prelitigation statements under the litigation privilege of Civil Code section 47 is not coextensive with the scope of protection for prelitigation statements under ... section 425.16." (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 794; see Joslin v. Third Laguna Hills Mutual (2020) 49 Cal.App.5th 366, 375 ["The scope of protection from claims under the anti-SLAPP statute is not always the same as the scope of protection for communications under the litigation privilege."].) Sometimes, a cause of action may arise from conduct protected by the anti-SLAPP statute, yet the litigation privilege does not apply.Conversely, "[t]he fact that Civil Code section 47 may apply does not necessarily mean the anti-SLAPP statute applies." (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1519; see Flatley, supra, 39 Cal.4th at p. 325 ["The fact that Civil Code section 47 may limit the liability of a party that sends to an opposing party a letter proposing settlement of proposed litigation does not mean that the settlement letter is also a protected communication for purposes of section 425.16."]; Bailey, at pp. 793-795 [prelitigation statements barred by doctrine of res judicata are not protected under the anti-SLAPP statute, irrespective of whether the litigation privilege applies].)
For example, a malicious prosecution cause of action is not categorically exempt from the anti-SLAPP statute, even though it is exempt from the litigation privilege. (Jarrow Formulas, supra, 31 Cal.4th at p. 736.)
As this discussion makes clear, an anti-SLAPP movant does not carry its first-step burden of showing that the conduct giving rise to a cause of action is protected by the anti-SLAPP statute merely by arguing, without more, that the conduct is subject to the litigation privilege. (See Birkner v. Lam (2007) 156 Cal.App.4th 275, 284 [whether an anti-SLAPP movant's "conduct is protected by the litigation privilege (Civ. Code, § 47, subd. (b)), ... is irrelevant to the determination of whether [he] has satisfied his burden under the first prong of the section 425.16 analysis"].) However, that is all that Godes has done here. He makes a scattershot of references to the litigation privilege, but he does not argue-as he did in the trial court-that the text messages were made in connection with an issue under consideration or review by a judicial body (§ 425.16, subd. (e)(2)). He also does not argue that the text messages fall within any of the other three categories of protected conduct set forth in the anti-SLAPP statute. By failing to make any of these arguments, Godes has forfeited his challenge to the trial court's finding that he did not satisfy his first-step burden under the anti-SLAPP statute. (See San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 106, fn. 17 [plaintiff forfeited argument concerning applicability of section 425.16, subd. (e)(4) by failing to address that provision in its opening brief].)
Even if we were to address Godes' arguments, they would fail on their merits. In its "usual formulation," the litigation privilege "applies 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." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg), italics added.) "A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration." (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251; see Edwards, supra, 53 Cal.App.4th at pp. 34-36.)
As the trial court properly found, the text messages bore "no rational relation to the litigation that eventually ensued" between Godes and Raine. Several of the text messages simply ridiculed Raine's workmanship to Godes' friend and real estate agent, Jensen, while Godes' home renovation was ongoing, or they were ad hominem attacks on Raine's character-calling him a "crook," a "fraud," a "real piece of shit," and a "[f]ucker." In other text messages, Godes implored Jensen to remove Raine from her "referral list going forward," and to fire him from her own kitchen renovation-ostensibly because of Raine's workmanship and because, according to Godes, Raine had badmouthed Jensen. These text messages were not sent "to achieve the objects" of the litigation; instead, they were entirely "extraneous to the action." (Silberg, supra, 50 Cal.3d at pp. 212, 220.)
Further, the mere fact that one text message described Raine as "dead meat (legally-speaking)" does not establish the necessary relationship between the text messages and the lawsuit. Nor does the fact that Godes is himself an attorney. Although Godes happens to be an attorney, the text messages that he sent to Jensen were not communications between attorneys and parties. The text messages did not solicit evidence or witness testimony for litigation. They were not court filings or communications with the court, either. And the sending of the text messages was not a precondition to the filing of any lawsuit. In short, none of the text messages "function[ed] as a necessary or useful step in the litigation process and ... serve[d] its purposes." (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 785 (Argentieri).)
Godes argues for the first time in his reply brief that his text messages related to litigation because "Jensen intended to sue Raine" for her kitchen remodel and Godes supposedly served as Jensen's attorney in connection with that expected litigation. "We do not address arguments [an appellant] raises for the first time in his reply brief." (See Crawley v. Alameda County Waste Management Authority (2015) 243 Cal.App.4th 396, 403, fn. 4.) Moreover, Godes does not provide any record citations to support his unsubstantiated claim that Jensen was his client. For this reason, as well, the argument is forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [" '[i]f a party fails to support an argument with the necessary citations to the record, ... the argument [will be] deemed to have been waived' "].)
In his opening brief, Godes claims the litigation privilege applies to his text messages because he sent most of the text messages in the weeks before he sent the settlement demand letter to Raine, and he initiated the lawsuit against Raine about three weeks after sending the settlement demand letter. Stated differently, he claims the litigation privilege applies due to the temporal proximity between the text messages and the filing of the lawsuit. While temporal proximity may support Godes' contention that a lawsuit was contemplated in good faith and under serious consideration, it does nothing to undermine our conclusion that the text messages did "not further the objects of the litigation." (Argentieri, supra, 8 Cal.App.5th at p. 786.) Indeed, Godes does not even try to articulate how the text messages furthered the objects of his lawsuit with Raine.
Nor can we discern any such connection on our own. Rather, for the reasons we have expressed, we agree with the trial court that the text messages, on their face, "reveal an aim of ruining [Raine's] reputation," and "commiserating about, or seeking validation of, a certain distaste for [Raine.]" Because the text messages "lacked a substantial connection to litigation," the litigation privilege does not apply. (See Paglia &Associates Construction, Inc. v. Hamilton (2023) 98 Cal.App.5th 318, 325; id. at p. 323 [homeowner's online postings on blog and Yelp that disparaged contractor were not subject to litigation privilege, even though some postings discussed executive agency's assessment of civil penalties against contractor, because the "postings were not sufficiently connected to [the] agency's proceedings].)
Godes has not satisfied his first-prong burden of establishing that the cross-complaint arises from protected conduct under the anti-SLAPP statute. Therefore, we affirm the order denying the anti-SLAPP motion on this basis, without considering whether Raine's cross-complaint has minimal merit under the second prong of the anti-SLAPP statute. (See Public Employees' Retirement System v. Moody's Investors Service, Inc. (2014) 226 Cal.App.4th 643, 658 ["Failure to meet this initial prong renders the anti-SLAPP statute inapplicable, thereby making unnecessary any determination under the second prong whether [the plaintiff] made a prima facie showing of negligent misrepresentation."].)
A plaintiff who prevails on an anti-SLAPP motion is entitled to recover his or her costs and reasonable attorney's fees if the court finds the motion is "frivolous" or "solely intended to cause unnecessary delay." (§ 425.16, subd. (c)(1).)"' "Frivolous in this context means that any reasonable attorney would agree the [appeal] was totally devoid of merit." '" (Durkin v. City & County of San Francisco (2023) 90 Cal.App.5th 643, 659.) "' "Appellate challenges concerning the [special] motion to strike are also subject to an award of fees and costs, which are determined by the trial court after the appeal is resolved." '" (Nirschl v. Schiller (2023) 91 Cal.App.5th 386, 409.) Raine contends Godes' appeal from the denial of the anti-SLAPP motion is frivolous and he therefore requests the attorney's fees he incurred in defending the trial court's order. Although we affirm the denial order, we disagree with Raine's assertion that the appeal is so utterly and obviously without merit as to warrant the conclusion that the appeal is frivolous. Therefore, we deny Raine's request for attorney's fees.
IV DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Raine is entitled to his costs on appeal.
WE CONCUR: KELETY, J. RUBIN, J.