Opinion
B228071
02-14-2012
TINA KIM, Cross-complainant and Respondent, v. ROGERT GENTINO, Cross-defendant and Appellant.
Robert Gentino, in pro. per.; and Kenneth Bayer for Cross-defendant and Appellant. Law Offices of Ronald M. Katzman and Ronald M. Katzman for Cross-complainant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EC052958)
APPEAL from an order of the Superior Court of Los Angeles County, David S. Milton, Judge. Affirmed.
Robert Gentino, in pro. per.; and Kenneth Bayer for Cross-defendant and Appellant.
Law Offices of Ronald M. Katzman and Ronald M. Katzman for Cross-complainant and Respondent.
On September 17, 2010, the trial court denied plaintiff and appellant Robert Gentino's special motion to strike the fourth cause of action for breach of fiduciary duty of defendant and respondent Tina Kim's cross-complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16. Gentino contends the trial court erred in overruling an evidentiary objection and denying the special motion to strike the breach of fiduciary duty cause of action.
"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
Code of Civil Procedure, section 425.16 provides in pertinent part: "(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 Constitution or the 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Hereinafter, all statutory references are to the Code of Civil Procedure, unless otherwise indicated.
Kim alleged Gentino breached his fiduciary duties to her by, among other conduct, "presenting in his complaint patently false and misleading statements concerning [Kim]." Gentino's anti-SLAPP motion also addressed two other causes of action. Gentino makes no contention concerning the trial court's denial of the motion as to those other causes of action.
Gentino failed to designate the reporter's transcript of the trial court proceedings on the special motion to strike for purposes of the record on appeal. We ordered the parties to brief the issue of whether the failure to designate a reporter's transcript warrants affirmance based on the inadequacy of the record. Kim's respondent's brief pointed out Gentino also failed to designate all relevant pleadings, including the complaint, in the clerk's transcript. Gentino did not file a motion to augment the record to include the reporter's transcript of the hearing or the omitted relevant papers. He contends the record is adequate because all evidence must be included in the papers filed in the trial court. Kim contends the record is inadequate and affirmance is required. We affirm on the basis the record is inadequate to establish reversible error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
DISCUSSION
Standard of Review
"The trial court engages in a two-step process to determine whether to grant or deny a section 425.16 motion to strike. [Citation.] The court first decides whether the defendant has made a threshold showing that the acts at issue arose from protected activity. (§ 425.16, subd. (b)(1) . . . .) Once the defendant meets this burden, then the court determines whether the plaintiff has demonstrated a probability that he or she will prevail on the claim. (§ 425.16, subd. (b)(1) . . . .) On appeal, we independently review whether section 425.16 applies and whether the plaintiff has a probability of prevailing on the merits." (Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 135.) In deciding whether the defendant has met the "arising from" requirement and whether plaintiff has met the probability of prevailing requirement, we consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(1), (2); Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)
"It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) "„A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .' (Orig. italics.) [Citation.]" (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)
Inadequate Record
Without the reporter's transcript of the hearing and all relevant pleadings, Gentino cannot meet his burden of showing reversible error. It is impossible for this court to review the motion de novo and determine if Kim's breach of fiduciary duty cause of action arose from Gentino's exercise of his right of petition and if there was no probability Kim would prevail on her claim. Without the reporter's transcript, we do not know what, if any, concessions were made, stipulations entered into, or objections withdrawn. In addition, the clerk's transcript does not contain the complaint. Without the complaint, we cannot assess whether Kim's breach of fiduciary cause of action arose from Gentino's exercise of his right of petition and whether there is no probability Kim would prevail on her claim that Gentino breached his fiduciary duty by alleging false statements concerning Kim in his complaint. The clerk's transcript also does not contain the pleadings and ruling on Gentino's prior anti-SLAPP motion to strike the third cause of action for abuse of process from the cross-complaint. Gentino refers to these matters in his briefing and indicates the prior anti-SLAPP motion was granted. The proceedings on the prior anti-SLAPP motion provide necessary background for a de novo review of Gentino's contentions Kim's breach of fiduciary cause of action arose from Gentino's exercise of his right of petition, the first amended cross-complaint did not render Gentino's current anti-SLAPP motion moot, and the first amended cross-complaint had no effect on the allegations of the cause of action for breach of fiduciary duty.
The Los Angeles Superior Court Civil Case Summary, in the clerk's transcript, indicates Gentino filed an anti-SLAPP motion to strike the third cause of action in the cross-complaint on June 28, 2010. On July 22, 2010, the trial court ordered "partial dismissal (without prejudice as to the cross-[complaint] filed by [Kim]) as to the third cause of action for abuse of process in the cross-complaint only." On August 24, 2010, Gentino filed an anti-SLAPP motion to strike the second, fourth, and fifth causes of action in the cross-complaint. A first amended cross-complaint was filed on August 30, 2010.
In the absence of an adequate record, we must indulge all inferences to support the order challenged on appeal and presume the trial court properly denied Gentino's anti-SLAPP motion to strike.
DISPOSITION
The order denying the motion to strike pursuant to section 425.16 is affirmed. Respondent Tina Kim is awarded her costs on appeal.
KRIEGLER, J. We concur:
TURNER, P. J.
MOSK, J.