Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-06-459062
NEEDHAM, J.
Angelo Ortega appeals from orders granting respondent’s anti-SLAPP motion to strike his cross-complaint, denying his motion for relief from that order, and awarding respondent attorney fees pursuant to the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) We will affirm the orders.
Except where otherwise indicated, all statutory references are to the Code of Civil Procedure.
I. FACTS AND PROCEDURAL HISTORY
A. Respondent Morales’ Complaint
On December 22, 2006, Michelle Morales (Morales) and her husband sued Club One, Inc. (Club One) and Angelo Ortega (Ortega), asserting causes of action against both of them for assault and battery, negligence per se, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium. Morales essentially alleged that she suffered a sexual assault and battery by Ortega while he was working as a massage therapist for Club One. In a separate cause of action, Morales asserted that Club One was negligent in hiring, training, supervising, and retaining Ortega.
More specifically, Morales alleged the following. Club One assigned Ortega to perform her massage. In the massage room, Morales followed Ortega’s direction to disrobe and lie on a massage table under a sheet. As the massage progressed, Ortega pulled the sheet down, exposing Morales’ buttocks. Morales pulled the sheet back up. “ORTEGA then began to assault and improperly and unlawfully touch [Morales] in and about her breasts and in and about her . . . inner thighs and near her vaginal area . . . . At the same time, ORTEGA leaned over [Morales] and started to breathe heavily upon [Morales’] head and face . . . . ORTEGA then initiated conversation, which included various improper suggestive comments of an unwelcome sexual nature. [Morales] was shocked, bewildered and paralyzed with fear.” Morales reported the incident in tears to Club One management, and Ortega left the premises. The police were called, a report was prepared, and Ortega was later returned to San Quentin Prison, from which he was on parole.
B. Club One’s Motion to Compel Arbitration and the First Appeal (A117918)
Club One filed a motion to compel arbitration and stay proceedings pursuant to sections 1281.2 and 1281.4, based on an arbitration provision in the membership agreement between Morales and Club One. Ortega was not a signatory to the agreement and did not move to compel arbitration. The trial court denied Club One’s motion.
We reversed the trial court’s order and directed the court to consider whether section 1281.2, subdivision (c) applied and, if so, how to proceed under section 1281.2. (See Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393 [“Section 1281.2(c) addresses the peculiar situation that arises when a controversy also affects claims by or against other parties not bound by the arbitration agreement.”].) According to the respondent’s brief, the court has not yet made this determination, pending the instant appeal.
Meanwhile, Club One’s counsel hired a private investigator, who located Ortega. Club One, its insurer, and Ortega purportedly agreed that Club One’s counsel could also represent Ortega.
C. Ortega’s Answer and Cross-Complaint Against Morales
Ortega filed an answer to Morales’ complaint. He also filed a cross-complaint against her, asserting causes of action for defamation, intentional and negligent interference with contractual relations and prospective economic advantage, and negligence, based on statements Morales made to Club One’s assistant manager about Ortega’s conduct during the massage. Ortega alleged these statements were false and, as a foreseeable consequence of the statements, Club One reported her claim to the San Jose Police Department, which led to Ortega’s arrest and incarceration, which in turn led to his claimed damages.
In his first cause of action for defamation, Ortega alleged he performed the massage on Morales “without incident.” He then alleged he was damaged as follows due to Morales’ statement to Club One: “Following the completion of her massage, Ms. Morales approached a supervisory employee of Club One and claimed that Mr. Ortega had sexually assaulted her during her massage. [¶] This claim by Ms. Morales was false and defamatory. [¶] . . . [¶] As a natural and predictable consequence of Ms. Morales’ false and defamatory claim to Club One that Mr. Ortega had sexually assaulted her, Club One contacted the San Jose Police Department and reported that the claim had been made. Officers from the San Jose Police Department arrived shortly thereafter and undertook an investigation of Ms. Morales’ false and defamatory claim. [¶] Shortly after Ms. Morales made her false and defamatory claim to Club One that Mr. Ortega had sexually assaulted her, and as a direct, natural and probable consequence thereof, Mr. Ortega was arrested and re-incarcerated in suspicion of a parole violation. Shortly after his arrest and re-incarceration, Mr. Ortega’s parole was revoked and he was returned to prison to serve the remaining portion of his sentence for his conviction on drug-related charges. [¶] As a result of Ms. Morales’ false and defamatory claim that Mr. Ortega had sexually assaulted her, Mr. Ortega has been damaged in that (1) he was re-incarcerated and thereby lost his employment with Club One and was unable to work at any job during the time of his incarceration, (2) his reputation has been severely damaged, (3) he was forced to withdraw from the accredited massage therapist academy that he was attending at the time, (4) he was forced to default on a student loan that he had undertaken to pay for his massage therapist training, and (5) he suffered emotional distress.” (Paragraphs 8, 9-13. Italics added.)
In the second and third causes of action for intentional and negligent interference with contract or prospective economic advantage, Ortega incorporated the foregoing allegations and also alleged that, when Morales told Club One that Ortega had sexually assaulted her, she intentionally or negligently disrupted the employment contract between Ortega and Club One and other economic relationships Ortega had with others. In his fourth cause of action for negligence, Ortega alleged that Morales breached a duty of care in telling Club One that he sexually assaulted her, and as a result he was damaged as set forth in the first cause of action.
D. Morales’ Anti-SLAPP Motion to Strike
In September 2007, Morales filed an anti-SLAPP motion to strike Ortega’s cross-complaint, contending that Ortega’s claims, being based on Morales’ statements to Club One and the allegation that the foreseeable consequence of those statements was a report of criminal activity to the police, targeted the exercise of Morales’ constitutional rights of speech and petition.
Morales supported her motion to strike with a declaration from her attorney, attaching a copy of the San Jose Police Department incident report. Ortega waived any objection to the admissibility of the incident report, because he wanted to rely on it as well. The incident report identified Morales as the reporting party and victim and Ortega as the suspect. It recounted that Morales told the officer she was “touched inappropriately by a massage therapist at Club One at Santana Row earlier in the day.” The substance of Ortega’s allegations and the police report, then, was that Ortega was damaged by his arrest and incarceration, which resulted from Morales’ report to Club One, Club One’s report to the police, and Morales’ statement to the police.
The report stated in part: “Morales said she was laying on her back and the therapist began massaging her legs one at a time. One leg is exposed at a time and the sheet covers her private parts. Morales said he was massaging her glutes (thighs). As he massaged up her thigh, she felt his hand touch her vagina area. Morales said this made her [feel] very uncomfortably. However she wasn’t sure if the therapist was [new] or what and did not say anything. Morales said the therapist did the same thing when massaging her other leg and touched her vagina. [¶] Morales said she was still on her back and he was massaging her arms. He rubbed her arm pit area close to her breast. She said he rubbed against her breast with his forearm several times. He asked her if he could stretch her and pulled her arm backwards. She felt the sheet begin to drop exposing her breast. She began to pull it up at which time the therapist said, your ok your not fallen out yet. Morales said when he was sitting behind her massaging her shoulders, his face was next to her ear. She said he was breathing heavy in her ear and appeared sexual in nature. [¶] Morales said the session ended. [Feeling] shocked and violated she went to the assistance manager[’]s office and spoke with Karen Segovia.” In a follow up interview, Morales she told an investigator that Ortega came within an inch of her vagina on both legs, front and back, and his arms brushed across her breast and he was breathing heavily.
Ortega opposed the motion to strike. By declaration he asserted the massage went without incident and Morales did not complain during the massage. He further declared his belief that Morales had an ulterior motive in complaining to Club One: “Ms. Morales’ accusation is absolutely, utterly false. I believe she knows it. I also believe that Ms. Morales made this false accusation in order to try to get money from Club One.”
Morales filed a reply brief and objected to much of Ortega’s evidence; the trial court sustained several of her objections, including her objection to Ortega’s speculation concerning Morales’ mental state.
E. Trial Court’s Ruling on Motion to Strike
At the hearing on the motion to strike, the court indicated that Ortega’s causes of action arose out of Morales’ protected activity, since Morales’ statement to Club One “was part of a continuing process that one could only reasonably conclude was an exercise of her right to report criminal conduct.”
The court then granted Ortega’s counsel’s request for supplemental briefing. In his supplemental brief, Ortega offered to provide a declaration from Club One officer William McBride, stating that McBride alone decided to contact the police and he did not recall Morales wanting Club One to contact the police. Ortega’s counsel further claimed he was informed and believed that Club One relieved Ortega of his job duties, and if Ortega was sent home without pay, some of his damages occurred independently of Club One’s contacting the police. Counsel requested an opportunity to develop the evidence.
Ortega initially requested leave to amend the cross-complaint to remove or modify the foreseeability allegation, but after learning that a court cannot grant leave to amend to overcome an anti-SLAPP motion (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1293-1294), he did not pursue it.
By written order dated December 17, 2008, the trial court granted Morales’ motion to strike Ortega’s cross-complaint. The court found that the cross-complaint arose out of protected activity, because Ortega’s alleged damages arose out of the report to the police, which allegedly was the direct, natural and predictable consequence of Morales’ statements to Club One. The court observed that Ortega’s offer of proof — that a Club One executive made the decision to contact the police after learning of Morales’ accusation—would not change the substance of Ortega’s claim. In addition, the court found, Ortega had no probability of prevailing on his claims, because Morales’ statements were absolutely privileged. (See Civ. Code, § 47, subd. (b).) The court also struck as inadmissible Ortega’s statement in his declaration that he believed Morales made her statement to Club One for an ulterior purpose, and further ruled that without admissible evidence of any malice on Morales’ part, Ortega’s claims were also barred by the qualified privilege of Civil Code section 47, subdivision (c).
F. Ortega’s Motion for Relief Under Section 473
On January 18, 2008, Ortega filed a motion for relief under section 473, subdivisions (a) and (b). He contended the court erred in finding protected activity and asked the court to “reconsider its ruling” in light of the declaration of McBride, which he filed along with the motion. Ortega claimed he had not been able to obtain and file McBride’s declaration in opposition to the motion to strike “due to the 2007 holiday period.”
The court denied the motion, finding it was really a motion for reconsideration (§ 1008) and, as such, was untimely. The court also ruled: “There has been no showing as to why the McBride declaration was not obtained in connection with defendant’s initial opposition.” The court sustained objections to two declarations submitted in support of Ortega’s motion, including McBride’s declaration.
G. Attorney Fees
Pursuant to the anti-SLAPP statute, Morales filed a motion to recover from Ortega $57,185 for attorney fees and costs incurred in connection with Morales’ motion to strike, Ortega’s motion for relief, and Morales’ motion for fees, adjusted by a multiplier of 1.5. (§ 425.16, subd. (c).) In support of the motion, Morales’ attorneys filed declarations itemizing the work they performed, the time they spent, and their hourly rates. Ortega opposed the motion.
The court awarded Morales $48,692 in attorney fees and costs. The court explained: “Counsel’s hourly rates are supported by the record as is the enhancement of 1.2 for the work done on the motion, not for fees. The court has reduced cross-defendant’s hours by ten percent in connection with the motion and has included the time spent opposing the motion for relief. The award is: $39,042 in connection with the motion and $9,650 in connection with the fee request.”
This appeal followed.
II. DISCUSSION
As mentioned, Ortega challenges (1) the order granting Morales’ anti-SLAPP motion, (2) the order denying Ortega’s motion for relief, and (3) the order granting Morales attorney fees and costs. We address each in turn.
A. Morales’ Anti-SLAPP Motion
Section 425.16 authorizes a defendant (or cross-defendant) to file a special motion to strike any cause of action arising from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. It establishes a procedure by which the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The purpose is to curtail the chilling effect meritless lawsuits may have on the exercise of free speech and petition rights, and the statute is to be interpreted broadly to accomplish that goal. (§ 425.16, subd. (a).)
In the motion, the defendant must make a prima facie showing that the plaintiff's cause of action arises from the defendant’s free speech or petition activity, as specified in the statute. (§ 425.16, subd. (b), (e).) The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c).)
We review an order granting or denying a motion to strike under section 425.16 de novo. (Flatley, supra, 39 Cal.4th at p. 325.)
1. Protected Activity
The first prong of the relevant analysis required Morales to make a prima facie showing that Ortega’s causes of action arose from Morales’ acts “in furtherance of [her] right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)
By statutory definition, “[a]n ‘act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . .; (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; . . . (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)
According to his cross-complaint, Ortega’s alleged damages, including damages resulting from his loss of employment, educational opportunity and reputation, were a product of his arrest and incarceration. His arrest and incarceration, in turn, were alleged by Ortega to be the “natural and probable consequence” of Morales’ report to Club One. Ortega maintains that Morales’ report to Club One is not protected activity, because it does not fall within section 425.16, subdivision (e).
The second and third causes of action pertain to damage allegedly caused by Morales’ intentional or negligent interference with Ortega’s employment relationship with Club One and others. However, in paragraphs incorporated into those causes of action, the cross-complaint alleges that the termination of this employment relationship and inability to obtain employment were due to his incarceration, which resulted from the report to the police. Therefore, the harm alleged in all the causes of action was caused by the police learning of the sexual assault accusation, which was initiated by Morales’ report to Club One.
According to Ortega’s allegations and the affidavits submitted, however, Ortega’s causes of action, which allege harm due to his arrest and incarceration, arose not only from Morales’ statement to Club One, but also necessarily from Club One’s report to the police and Morales’ own statement to the police confirming her accusations about Ortega’s sexual assault. It was only in connection with these events that Ortega was arrested and incarcerated, and only then that his alleged damage occurred. Club One’s report to the police and Morales’ statement to the police constitute protected activity, as statements made to law enforcement about suspected criminal wrongdoing. (See, e.g., Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570 (Siam); Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 (Chabak).) Although Morales’ statement to Club One was not directed to the police, based on Ortega’s allegations it was necessary to or intertwined with the report to the police and the harm that allegedly resulted. Given Ortega’s allegations, therefore, as well as the statutory mandate to interpret the anti-SLAPP statute broadly to protect free speech and petition rights, Morales’ statement to Club One must be deemed protected activity just as much as her later statement to the police and Club One’s statement to the police.
After all, what allegedly precipitated Ortega’s damages was the report to the police, and the report to the police was protected activity. If, as Ortega alleges, Morales’ statement to Club One was actionable as part of the cause of Ortega’s damages, it must be considered part of the report to the police and thus part of the protected activity. If Morales’ statement to Club One was not part of the report to the police, as a matter of law it could not have been a cause of Ortega’s alleged damages, and it would be difficult to see how Ortega had any basis for filing his cross-complaint in the first place.
Viewed slightly differently, even if Morales’ report to Club One was independent from the reports to the police and not in itself protected activity, Ortega’s causes of action nonetheless arose from activity protected under section 425.16. When a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 unless the protected component of the conduct is merely incidental. (See, e.g., Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672-673 (Peregrine) [first prong of anti-SLAPP analysis met where the allegations of loss resulting from protected activity were not merely incidental or collateral to unprotected activity]; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 104 (Mann) [because the defendants’ reports to government agencies formed a substantial part of the factual basis for defamation and trade libel claims, the claims were subject to the anti-SLAPP statute even though also based on non-protected statements].) Here, Morales’ statement to the police and Club One’s report to the police were not merely incidental or collateral, since Ortega’s damage arose from the police investigation leading to his arrest and incarceration. His causes of action are therefore subject to the anti-SLAPP statute.
In Mann, supra, 120 Cal.App.4th 90 and Peregrine, supra, 133 Cal.App.4th 658, the damage was allegedly caused by unprotected activity of the defendant and protected activity of the defendant. Here, Ortega’s damage allegedly arose from the unprotected activity of Morales and protected activity of Club One. This distinction turns out to be immaterial, however, since it is undisputed that Morales also engaged in the protected activity of reporting the matter to the police (as set forth in the police report submitted to the court without objection), and her report to the police was part of what gave rise to Ortega’s arrest, incarceration, and damages. Thus, considering Ortega’s allegations, as well as the police report, Ortega’s causes of action arose from Morales’ statement to Club One, Club One’s report to the police, and Morales’ confirming statement to the police.
In addition, Morales points out that section 425.16, subdivision (e) protects not only communications that are actually made in a judicial or official proceeding, but also “communications preparatory or in anticipation of bringing an action or other official proceeding.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35; see Flatley, supra, 39 Cal.4th at p. 319.) Morales contends her statements to Club One were preparatory to or in anticipation of her report of Ortega’s alleged sexual assault to the police, relying in part on Siam, supra, 130 Cal.App.4th 1563. In Siam, the defendant had made accusations of child abuse to school officials and others “who were legally required to report any child abuse allegations,” indicating that the statements were designed to prompt action by law enforcement or child welfare agencies and were thus preparatory to or in anticipation of commencing official proceedings. (Id. at pp. 1569-1570.) Here, it is not asserted that Club One was legally required to call the police; nonetheless, one possible reasonable inference arising from Morales telling Club One their employee sexually assaulted her is that she anticipated a judicial or official proceeding. Indeed, Ortega alleged that Club One’s summoning of the police was a foreseeable consequence of Morales’ statement to Club One. (Cf. Chabak, supra, 154 Cal.App.4th 1502, 1507, 1512 [minor’s report to her parents concerning her physical therapist’s sexual abuse was directly related to her report to the police and constituted protected activity, because she was a minor, the disclosure to her parents was at the instruction of the police, and disclosure would have been required during criminal proceedings or pursuit of a civil remedy].)
Ortega’s arguments to the contrary are unpersuasive. He argues at length that statements made with the foreseeable but unintended consequence of a report to the police cannot be covered by the anti-SLAPP statute. Specifically, he urges that the acts of a third party (Club One, in calling the police), if unintended by Morales, cannot convert otherwise unprotected conduct (Morales’ statement to Club One alone) into protected conduct for purposes of the anti-SLAPP motion. But that is not the basis of our holding. In the first place, there is no allegation in the cross-complaint, or even any competent evidence, that Morales did not intend for the police to be notified. Moreover, the point is not that Club One’s acts converted unprotected conduct into protected conduct, but that the only damage alleged to result from Morales’ statement to Club One stemmed substantially from reports to the police, which is protected activity.
Ortega opines in his reply brief that Morales appears not to have wanted the police investigating her accusation of Ortega. His assertion is not supported by the evidence. It is not reasonably drawn from McBride’s declaration, because McBride merely declared that he did not recall his employee suggesting that Morales wanted the police involved. In any event, McBride’s declaration was not before the court as of the ruling on the motion to strike. Morales’ intention that the police be called is a reasonable inference from her statement to Club One and her later assertion to the police that Ortega touched her inappropriately.
Ortega also argues that Morales did not submit a declaration asserting that her statements to Club One were made with the intention of triggering a police investigation, and her failure to do so is fatal because section 425.16, subdivision (b), requires her to submit admissible evidence to establish protected activity. He is incorrect.
Subdivision (b)(2) of section 425.16 reads: “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.” The subdivision thus requires the court to consider the allegations and any affidavits that have been submitted. It does not by its terms require the defendant to submit an affidavit or produce evidence in order to make an adequate first-prong showing of protected activity. (See Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330 [“[I]n determining whether the challenged cause of action arises from protected conduct, the first prong, the court necessarily looks to the allegations in the operative complaint. This does not preclude a court from examining affidavits in making the first prong assessment; in fact the Legislature explicitly permits a court in making the first prong assessment to rely on affidavits”], italics added.) In any event, Morales did point to evidence—the police report to which no objection was made—as well as Ortega’s allegations. As explained ante, this evidence and Ortega’s allegations were sufficient to establish that Ortega’s causes of action arose from protected activity.
Ortega next insists that Morales’ statement to Club One caused damage other than what resulted from his arrest and incarceration. Based on Morales’ statement to Club One’s assistant manager, he urges, Club One placed Ortega on unpaid administrative leave. Again, Ortega’s argument is meritless. Any loss he suffered from being sent home without pay pales in comparison to the damages he claims resulted from his arrest and incarceration, and it is therefore merely incidental to his causes of action. Moreover, there is no allegation in the cross-complaint, and no evidence before the trial court at the time of the hearing on the motion to strike, that Ortega was indeed sent home on unpaid administrative leave. Similarly, although Ortega alleges he suffered emotional distress, there is no indication it was attributable to Morales’ statement to Club One in itself (rather than from his resultant arrest and incarceration) or was something more than incidental to the other damage resulting from his arrest and incarceration.
In the final analysis, we are mandated to interpret the reach of the anti-SLAPP statute broadly. Ortega’s cross-complaint essentially seeks damages based on a report to the police of his alleged crimes, and it would be contrary to the spirit and intent of section 425.16 to conclude that Morales’ statement to Club One could render her liable for those damages as the cause of his arrest and incarceration, without also receiving the same anti-SLAPP protections afforded to Club One’s summoning of the police and Morales’ later statement to the police investigator.
The trial court did not err in concluding Morales made a sufficient showing that Ortega’s causes of action arose from activity protected under section 425.16, subdivision (e).
Morales argues she also met her burden under subdivisions (e)(3) and (e)(4) of section 425.16, on the ground the cross-complaint alleges communications made in a public forum in connection with an issue of public interest. We need not address this additional basis for establishing protected activity.
2. Probability of Prevailing
In the second phase of the relevant analysis, Ortega had to demonstrate, with admissible evidence, a probability he would prevail on his claims.
The trial court found that the litigation privilege of Civil Code section 47, subdivision (b) was an absolute bar to Ortega’s claims as a matter of law. A report of criminal activity to the police is absolutely privileged under Civil Code section 47, subdivision (b). (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350,364.) Although Morales’ statement to Club One concerning its employee’s sexual assault was not made to the police, Morales urges that it is fairly viewed as a statement in preparation for anticipated litigation or as part of an investigation into the feasibility of a lawsuit. (See Chabak, supra, 154 Cal.App.4th at p. 1519 [report to parents of physical therapist’s sexual assault fell within “the broad protections of the litigation privilege as communications made in anticipation of litigation”].)
Whether or not the litigation privilege applied, Ortega’s claims were plainly barred by the qualified privilege of section 47, subdivision (c), which applies to communications made without malice to interested persons. Morales’ statement to Club One about a sexual assault perpetrated on one of its members by one of its employees constituted an interested party communication, which would be privileged unless Morales made the statement maliciously. “ ‘The malice necessary to defeat a qualified privilege is “actual malice” which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.’ ” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1370.) Malice cannot be inferred from the communication itself (Civ. Code, § 48) and must be something more than anger at Ortega’s conduct, such as an ulterior motive. (See Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1557 [anger at the incident does not necessarily demonstrate malice in reporting it].)
Ortega, who had the burden of producing evidence in this second prong of the analysis, presented no admissible evidence that Morales made her report to Club One with malice. He contended in his declaration that her accusations were false and “I believe she knows it. I also believe that Mrs. Morales made this false accusation in order to try to get money from Club One.” Although Ortega noted elsewhere in his declaration that Morales did not complain or seem upset to him during the massage, the court did not abuse its discretion in concluding there was an insufficient factual basis for his opinion that she made the statement knowing it was false and in an effort to obtain money from Club One. Without any other evidence that her statements were made for an ulterior purpose, no trier of fact could reasonably conclude that her statements were not privileged under section 47, subdivision (c).
Ortega’s arguments to the contrary again fall short. First, he complains he did not have the opportunity to take discovery with respect to Morales’ mental state. Section 425.16, subdivision (g), provides that discovery cannot be taken during the pendency of an anti-SLAPP motion, unless the court orders discovery on noticed motion and for good cause shown. Ortega never filed a noticed motion in the trial court for additional discovery.
Next, Ortega contends Morales toned down her accusations against him when questioned by the police, and her statement to Club One was thus in reckless disregard of Ortega’s rights. We find nothing in the police report, in which Morales accuses Ortega of inappropriately touching her during the massage, giving rise to a reasonable inference that Morales reported the matter to Club One in reckless disregard of Ortega’s rights.
Ortega also contends Morales’ malice can be inferred from her failure to submit a declaration that affirmatively stated she wanted the police to conduct an investigation. He insists this shows she would not sign such a declaration because she was unwilling to commit perjury, and her statement to Club One was thus deliberately false and made for an improper purpose. No reasonable person would draw this inference from the evidence presented. Morales confirmed to the police investigator that Ortega had touched her inappropriately during the massage.
Lastly, Ortega again argues that his injury began before the police were called – namely, he was sent home on unpaid administrative leave and was humiliated. As mentioned ante, however, there was no admissible evidence to that effect. To the contrary, Ortega stated under penalty of perjury in his declaration: “I also lost my job with Club One because (obviously) I could not perform my job while I was in prison.” (Italics added.) He did not declare he was sent home on unpaid administrative leave or was humiliated as a result of Morales’ statement to Club One.
In sum, Ortega failed to demonstrate a probability of prevailing on his claims. The trial court did not err in granting Morales’ motion to strike Ortega’s cross-complaint.
Morales also contends the causes of action in Ortega’s cross-complaint are time-barred, because he filed the cross-complaint more than two years after her alleged wrongdoing occurred. (§ 340, subd. (c) [one year limitations period for libel or slander]; § 339, subd. (1), § 335.1 [two year limitations period for wrongful interference with contract and negligence].) Morales posits additional reasons why Ortega’s causes of action are meritless as well. In view of our conclusion that Morales’ statements were privileged, we need not address these additional arguments.
B. Ortega’s Section 473 Motion
Ortega sought relief from the order under section 473, attempting to submit a declaration from McBride to the effect of the offer of proof he had made in his supplemental opposition to the motion to strike. Morales opposed Ortega’s motion and argued, as the court ultimately found, that Ortega’s motion was in fact a motion for reconsideration under section 1008 (Ortega’s motion papers sought to have the court “reconsider its ruling” because the court “erred” in its finding of protected activity) and was thus untimely, and the motion in any event failed to demonstrate a sufficient reason Ortega did not file the McBride declaration along with his opposition to the motion to strike. Whether Ortega’s motion should be categorized as a motion for reconsideration under section 1008 or as a motion for relief under section 473, it had no merit.
A motion for reconsideration must be brought within ten days after service of notice of entry of the order. (§ 1008, subd. (a).) Ortega’s motion was brought on January 18, 2008, more than ten days after the clerk’s service of the order granting the anti-SLAPP motion on December 17, 2007. If viewed as a motion for reconsideration under section 1008, Ortega’s motion was untimely.
Relief under section 473, as applied here, would have required a showing that the grant of the anti-SLAPP motion was due to the mistake, inadvertence, surprise, or excusable neglect of Ortega’s attorney in failing to submit the McBride declaration in opposition to the anti-SLAPP motion. Ortega made no such showing.
In the first place, Ortega did not demonstrate that the failure to submit the McBride declaration in opposition to the anti-SLAPP motion was due to counsel’s mistake, inadvertence, surprise, or excusable neglect. Morales’ memorandum of points and authorities in support of the anti-SLAPP motion contended that her statements to Club One were protected because, according to the cross-complaint, they led to the report to the police. To the extent there was any relevance to the matters to which McBride eventually attested—the possibility of damage caused by the report to Club One independent from the report to the police, or the suggestion that Morales had not expressly asked Club One to report the matter to the police—Ortega was on notice of the need to obtain such evidence when he received Morales’ motion to strike. Morales’ motion papers were served around September 20 or 21, and the hearing on the motion to strike occurred nearly two months later, on November 16. Ortega did not sufficiently explain why a declaration addressing those issues was not submitted as part of his opposition to the anti-SLAPP motion. (See Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17 [failure by counsel to understand significance of evidence submitted in summary judgment motion does not justify relief under § 473].)
Ortega’s arguments in this regard are untenable. As summarized in the reply brief in this appeal, he insists: “[T]he trial court found that because most of Mr. Ortega’s injury arose out of the revocation of his parole, which appears to have been caused not by Ms. Ortega’s [sic] statement to Club One but by Club One’s independent act of contacting the police . . ., the ‘gravamen’ of Mr. Ortega’s claim was the reporting of the incident to the police, and that is protected conduct. This logical step (rather, leap) is neither foreshadowed in the allegations in Ms. Morales’ complaint . . . nor advocated in her anti-SLAPP motion papers, or presaged by any of the published appellate decisions that apply the anti-SLAPP statute. Thus, the trial court’s application of this analysis was unusual, unforeseen, and came as a ‘surprise’ to Mr. Ortega’s counsel. That ‘surprise’ was the basis for Mr. Ortega’s section 473 motion.” [Footnote omitted.]
To the contrary, the court’s analysis was a foreseeable application of existing anti-SLAPP law to the allegations of Ortega’s own cross-complaint. Contrary to Ortega’s representation, it was also “advocated in her anti-SLAPP motion papers.”
In Morales’ memorandum of points and authorities in support of her anti-SLAPP motion, Morales argued that she demonstrated protected activity under the first prong of the anti-SLAPP analysis as follows: “The cross-complaint makes clear that each cause of action asserted therein arises exclusively from Mrs. Morales[’] protected decision to report what she believed to be criminal behavior to the Police. . . . This is admitted in the cross-complaint where it is alleged that the ‘natural and probable consequence’ of Mrs. Morales[’] initial report of this incident to Club One was to initiate a Police response and investigation. . . . [¶] . . . [¶] Although Ortega tries vainly to plead around the implications of Mrs. Morales’ protected reporting of Ortega’s unlawful conduct, it is patently obvious that her initial statements to Club One concerning Ortega’s unlawful conduct was part and parcel of her immediate report to the police. The cross-complaint admits this. . . . As such, the conduct complained of in the cross-complaint was directly related to Mrs. Morales’ petitioning (i.e. reporting) activity absolutely privileged by section 47(b) (and subject to 425.16).” (Italics added.)
From Morales’ motion papers, therefore, it was clear that Morales was arguing the theory the trial court ultimately accepted, and it was also apparent that it might be helpful to show that her statement to Club One caused damage independent from the report to the police. Indeed, in his opposition to the anti-SLAPP motion, Ortega’s attorneys wrote: “Ms. Morales conspicuously offers no declaration or other evidence that she asked Club One to call the police.” Since it occurred to counsel that Morales had not offered evidence that she asked Club One to call the police, it should have also occurred to him—as it apparently did later—that Ortega could offer evidence that Morales had not asked Club One to call the police.
Moreover, even if Ortega had demonstrated a sufficient excuse for not timely submitting the McBride declaration, he did not show the McBride declaration would have led to a different result. The declaration did not demonstrate that Ortega had a probability of prevailing on his claims. Nor did it show that his causes of action arose from activity outside the protection of the anti-SLAPP statute. In fact, its representation of what Morales told Club One’s assistant manager was hearsay. Its representation that Ortega was sent home on unpaid leave did not change the gravamen of the cross-complaint, because there is no indication such loss was more than merely incidental to the damages resulting from Ortega’s arrest and incarceration.
Ortega argues that the court did not consider his counsel’s reasons for failing to anticipate the need for McBride’s declaration, because the judge indicated at the hearing that he had not yet read Ortega’s reply papers in support of the motion for relief. Ortega contends the court thus “ignored the evidence and found that there had been no explanation at all” for counsel’s failure to timely submit the McBride declaration. (Italics omitted.)
This argument has no merit. In the first place, if Ortega had properly included his full explanation in his moving papers, instead of waiting for his reply papers, the judge would have considered it all before the hearing began. In any event, although the court noted early during the hearing it had not yet read the reply papers, the court was given a copy of the papers and thereafter stated: “So I’ve looked at the reply papers . . . Let me be clear for the record that I looked at the declarations.” By this point, the court was already familiar with counsel’s claimed “surprise” anyway, since counsel had described it in his supplemental briefing in the anti-SLAPP motion. And if counsel had some concern that the court was not familiar with his excuses, counsel was free to apprise the court of his arguments and the contents of the reply papers at the hearing – indeed, he did. Lastly, any error in this regard would be harmless, since as a matter of law counsel’s contentions did not establish the mistake, inadvertence, surprise, or excusable neglect necessary for relief under section 473, and as a matter of law the motion was untimely as a section 1008 request for reconsideration.
Ortega has failed to establish reversible error.
C. Amount of Attorney Fees Award
An award of attorney fees to a party who successfully brings an anti-SLAPP motion is mandatory. (§ 425.16, subd. (c). Ketchum v. Moses (2001)24 Cal.4th 1122, 1141-1142 (Ketchum).) Ortega contends the amount awarded by the trial court was excessive. The court has broad discretion in determining the fees to be awarded. (Brochtrup v. INTEP (1987) 190 Cal.App.3d323, 329.)
In support of the attorney fees request, Morales’ attorneys submitted declarations itemizing the time spent on each task related to the relevant proceedings. These amounts were then multiplied by $350 or $275 per hour, depending on the attorney, pursuant to counsel’s normal and customary rates. This resulted in a lodestar of $38,070. Morales then requested a fee multiplier of 1.5, because she was represented on a contingency basis and counsel did not anticipate having to defend against a cross-complaint when the contingency fee was negotiated. (See Ketchum, supra, 24 Cal.4th at pp. 1131-1132 [lodestar adjustment permitted under fee provision of anti-SLAPP statute].) The lodestar, multiplied by the 1.5 multiplier, led to a total fee request of $57,185.
Ortega claimed that three email exchanges, corresponding to 1.1 hours of attorney time and a total of $385 in fees, failed to specifically reference the anti-SLAPP motion. Morales agreed to waive these charges without admitting their illegitimacy. Ortega otherwise did not offer any evidence or legal authority supporting his claim that the fee request was inflated and inaccurate.
At the hearing on the fee motion, the court observed that the request for fees was not out of the ordinary based on the court’s experience. The court nonetheless reduced the compensable hours by 10 percent and reduced the fee multiplier to 1.2, resulting in a total award of $48,692, nearly $15,000 less than Morales requested.
On the record presented to us, Ortega has failed to establish that the trial court acted so arbitrarily or irrationally as to constitute an abuse of discretion. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248 [argument that billing is unreasonable and duplicative, unsupported by citation to the record or explanation of which fees were inappropriate, provides no basis for disturbing the trial court’s ruling].)
Ortega represents that he cannot pay any substantial fee award, and that we should vacate the fee order in the interest of justice. Ortega also argued in the trial court that he could not afford any substantial fee award, based not on his own declaration, but the following statement in his attorney’s declaration: “I am informed and believe that he [Ortega] does not have the means to pay any substantial attorney’s fee award in this case.” Ortega has failed to establish that the trial court abused its discretion in imposing the fee award.
III. DISPOSITION
The orders are affirmed.
We concur. JONES, P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.