Opinion
B313689
11-07-2022
CYNTHIA BECK, Plaintiff and Appellant, v. JOSH YOZURA, Defendant and Respondent.
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan, for Plaintiff and Appellant. Doniger/Burroughs, Stephen M. Doniger and Kelsey M. Schultz, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20STCP01714 Maurice A. Leiter, Judge.
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan, for Plaintiff and Appellant.
Doniger/Burroughs, Stephen M. Doniger and Kelsey M. Schultz, for Defendant and Respondent.
MANELLA, P. J.
INTRODUCTION
This appeal is from an award of attorney fees and costs following a partially successful anti-SLAPP motion under Code of Civil Procedure section 425.16. Respondent Josh Yozura recorded and published a video of himself entering and exploring a vacant Malibu property owned by appellant Cynthia Beck. Beck filed a complaint containing seven causes of action against Yozura and other defendants, specifically alleging as to Yozura that by publishing his video, he encouraged others to commit arson, conversion, and other wrongful acts in connection with her property and her family. Beck generally alleged as to all defendants that they personally committed such wrongful acts. Yozura filed an anti-SLAPP motion to strike six causes of action against him, which the trial court granted with respect to the video allegations, but otherwise denied. Yozura then filed a motion for an award of attorney fees and costs under section 425.16, subdivision (c)(1), which mandates such an award to a prevailing defendant on an anti-SLAPP motion. In their opposition and reply briefs, the parties disputed whether Yozura's requested fees should be denied or reduced to account for his degree of success on his anti-SLAPP motion. After a hearing, the court issued an order acknowledging this dispute, granting the motion, and awarding Yozura the full amount of fees and costs he requested.
Undesignated statutory references are to the Code of Civil Procedure.
On appeal, Beck contends the court erred in: (1) determining Yozura was entitled to attorney fees as a prevailing defendant on his anti-SLAPP motion; and (2) awarding the full amount of fees he requested, purportedly without considering his degree of success on his anti-SLAPP motion. Finding no error, we affirm.
BACKGROUND
A. Beck's Complaint
Beck is the owner of real property in Malibu (the Property), which has stood vacant since 2000. Yozura is a YouTuber and self-described urban explorer. On YouTube and another website, Yozura published a video entitled "ABANDONED DARK MANSION $9,000,000 ON BEACH!! (SECRET ROOM FOUND)," which showed himself and several companions entering and exploring the Property.
In December 2020, Beck filed her operative first amended complaint (FAC) against Yozura and other defendants. As to Yozura specifically, the FAC alleged: (1) he published his video; (2) he selected the video's title to attract the general public's attention; (3) several online comments (presumably posted under the video by users of the hosting websites) identified him by name and "prais[ed] him for breaking into a private home"; and (4) by publishing his video, he "caused . . . unlawful property entries and/or subsequent burglary." As to "Defendants" generally, the FAC alleged they: (1) entered the Property without authorization; (2) damaged or removed Beck's personal property; (3) created a fire hazard or other potentially dangerous condition on the Property; (4) set fire to the Property; (5) made unspecified threats against Beck and her family; and (6) published Beck's financial information, as well as the identities and academic report cards of her minor children.
The FAC contained seven causes of action against Yozura, each of which was also alleged against other defendants: (1) trespass; (2) private nuisance; (3) conversion; (4) arson; (5) civil harassment; (6) negligence; and (7) declaratory and injunctive relief. In addition to declaratory and injunctive relief, the FAC sought compensatory, statutory, and punitive damages.
B. Yozura's Anti-SLAPP Motion
In March 2021, Yozura filed an anti-SLAPP motion under section 425.16, seeking to strike all causes of action against him except the first (trespass). To meet his burden at the first step of the anti-SLAPP analysis, Yozura argued: (1) the challenged causes of action arose from his publication of his "documentary film"; and (2) his publication of the film was protected activity under section 425.16, subdivisions (e)(3) and (e)(4), because the film constituted speech in connection with issues of public interest and was published on public forums (viz., the hosting websites). Yozura further argued Beck could not meet her burden at the second step of the anti-SLAPP analysis, because she could produce no admissible evidence that Yozura engaged in any of the conduct alleged in the complaint other than recording and publishing his video, which did not suffice to show a probability of success on any of the challenged causes of action.
"Litigation of an anti-SLAPP motion involves a two-step process. First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."' [Citation.] If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).)
Opposing the motion, Beck argued Yozura had failed to meet his first-step burden because Yozura's alleged conduct, including but not limited to recording and publishing his video, was both illegal as a matter of law and unconnected with an issue of public interest. She argued she was entitled to an injunction against Yozura "to force the removal of the recorded and posted videos and to enjoin him from creating and publishing further 'documentary films' on social media websites." In arguing she had established a probability of success on the challenged causes of action, she cited no evidence, instead relying solely on the allegations in the FAC. In a supporting declaration, Beck reiterated the FAC's allegations, modifying its general allegations against "Defendants" to identify Yozura by name; for instance, she declared that Yozura removed items from and set fire to the Property, and published her children's report cards online. Her declaration set forth no facts suggesting she personally observed Yozura's alleged conduct or otherwise had personal knowledge of it.
In April 2021, after a hearing, the trial court issued an order granting Yozura's anti-SLAPP motion in part and denying it in part. The court denied Yozura's request to strike the challenged causes of action in their entirety, observing that the causes of action did not arise solely from the video allegations, but additionally alleged that the defendants (including Yozura) engaged in unrelated conduct such as arson and conversion. However, the court granted Yozura's motion "as to the allegation that the making and posting of videos caused others to commit wrongful acts." In striking the video allegations, the court concluded that "the making and posting of [Yozura's] video" was protected speech in connection with issues of public interest, and that Beck had failed to show a probability of prevailing on her claims that Yozura's publication of the video caused others to commit wrongful acts.
"Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief -- each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action -- to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion." (Bonni, supra, 11 Cal.5th 995, 1010, citing Baral v. Schnitt (2016) 1 Cal.5th 376, 393-395 (Baral).) Courts must conduct a claim-by-claim analysis even where "a defendant has moved to strike an entire cause of action rather than individual claims within a pleaded count." (Bonni, at 1011.)
C. Yozura's Fee Motion
In May 2021, Yozura filed a motion for an award of $25,795.50 in attorney fees and $595.15 in costs under section 425.16, subdivision (c)(1), arguing he was entitled to the award as a prevailing defendant on his anti-SLAPP motion. In supporting declarations, his counsel provided support for their hourly rates and attached an itemized billing statement setting forth their hours worked on the anti-SLAPP motion.
Opposing the motion, Beck argued that under Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 (Mann): (1) Yozura was not entitled to fees, because his failure to wholly eliminate any cause of action rendered his success in striking the video allegations so insignificant that he could not be deemed a "prevailing" defendant; and (2) in the alternative, the amount of fees should be reduced to account for his limited degree of success, in consideration of factors identified in Mann: "([a]) Defendant Yozura's litigation posture was not advanced by the motion; ([b]) the same factual allegations at issue in the motion predominantly remain to be litigated; ([c]) discovery and motion practice have not been narrowed; and ([d]) future litigation expenses and strategy will not be significantly impacted by the motion." Beck further argued that the total number of hours worked by Yozura's counsel was excessive. She did not argue that Yozura's fees should be reduced to account for specific hours spent on unsuccessful portions of the motion, or that his counsel's itemized billing statement was insufficient to determine whether such a reduction was warranted. Nor did she request a statement of decision.
In reply, Yozura argued he was entitled to his full fees under Mann because as a practical matter, striking the video allegations was a critical success: "[T]he Anti-SLAPP [ruling] reduced the factual allegations to be litigated. Whereas before Beck sought to hold Yozura liable for the wrongs of others by alleging vicarious liability for posting a video on YouTube, the sole issue to be litigated now is whether Yozura directly committed any of the alleged wrongs against Plaintiff -- which Yozura did not. Thus, discovery and motion practice have also been significantly narrowed by the Anti-SLAPP ruling. This narrowing of discovery and motion practice has streamlined Yozura's litigation strategy and reduced future litigation expenses such that the Anti-SLAPP Motion conferred a positive impact on Yozura." Yozura argued that in the wake of the anti-SLAPP ruling, Beck's causes of action against him could be resolved by a "simple" summary judgment motion, because Beck could not produce any admissible evidence in support of her remaining allegations (as evidenced by her failure to produce any such evidence in opposing the anti-SLAPP motion). Further, Yozura argued that the majority of his counsel's anti-SLAPP work had been in furtherance of his successful challenge to the video allegations, and that any other work on the motion had overlapped with this successful work.
In June 2021, the court held a hearing on the fee motion, which was not reported. At the conclusion of the hearing, the court issued an order granting Yozura's motion for attorney fees and costs in the full amounts requested. Quoting Mann, supra, 139 Cal.App.4th at 345, the court acknowledged that even where the work on successful and unsuccessful portions of an anti-SLAPP motion was overlapping, the amount of a fee award should be reduced to account for limited success "'if appropriate.'" The court further acknowledged the parties' dispute whether Yozura's requested fees should be denied or reduced under Mann: "Plaintiff asserts Defendant is not entitled to attorney's fees under Mann . . . . Plaintiff contends Yozura's anti-SLAPP motion was not successful because the Court granted the motion only as to one allegation and the motion did not result in Yozura's dismissal. In reply, Yozura argues the motion was successful because it struck Plaintiff's only basis for liability against Yozura." The court proceeded to state: "The Court will allow Yozura to recover fees for the anti-SLAPP motion. The Court did strike the basis for liability giving rise to the anti-SLAPP motion. Yozura's motion was successful, and the Court sees no practicable way to apportion fees on this motion. Anti-SLAPP motions such as this one are complex; they take significant skill and time, and require investigation, research and analysis. Counsel's hourly rates are reasonable. The Court finds counsel's hours are reasonable for the instant motion."
Beck timely appealed. In her notice designating the record, Beck elected to proceed without a record of the oral proceedings.
DISCUSSION
Beck contends the trial court erred in: (1) determining Yozura was entitled to attorney fees as a prevailing defendant on his anti-SLAPP motion; and (2) awarding the full amount of fees he requested, purportedly without considering his degree of success on his anti-SLAPP motion. We address each contention in turn.
A. Entitlement to Fees
With exceptions not at issue here, "a prevailing defendant on a special [anti-SLAPP] motion to strike shall be entitled to recover his or her attorney's fees and costs." (§ 425.16, subd. (c)(1).) "[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion." (Mann, supra, 139 Cal.App.4th at 340; accord, Moran v. Endres (2006) 135 Cal.App.4th 952, 956 (Moran) [defendants were not entitled to fees, where their partial success on their anti-SLAPP motion "in every practical sense meant nothing"].) The no- practical-benefit doctrine recognized in Mann and Moran is a "narrow" exception to the general rule mandating a fee award to a partially successful defendant. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446.) "Given the express legislative preference for awarding fees to successful anti-SLAPP defendants, a party need not succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16. A contrary conclusion would require a partially prevailing defendant to bear the entire cost of the anti-SLAPP litigation at the outset of the case. This would create a strong disincentive for a defendant to bring the motion, undermining the legislative intent . . . to discourage plaintiffs from bringing meritless SLAPP claims." (Mann, at 339-340.) "The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court. [Citation.] We review this determination on an abuse of discretion standard." (Id. at 340.)
We conclude the trial court acted within its discretion in determining Yozura was entitled to attorney fees as a prevailing defendant on his anti-SLAPP motion. (§ 425.16, subd. (c)(1).) Contrary to Beck's assertions that Yozura's motion was denied "in all respects," leaving him to "defend against all of the pled conduct," the court granted the motion in part and struck the allegations concerning Yozura's conduct in publishing his video. The striking of the video allegations spared Yozura the likely burdens of: (1) responding to or contesting discovery requests concerning his recording and publishing the video, as well as related topics such as viewer comments praising Yozura (as alleged in the FAC); and (2) opposing a request for an injunction "to force the removal of the recorded and posted videos," as Beck's anti-SLAPP opposition indicated she intended to seek. Thus, Yozura achieved a practical benefit. (See Mann, supra, 139 Cal.App.4th at 340 [trial court acted within its discretion in determining defendants prevailed on their anti-SLAPP motion despite their failure to eliminate three of four challenged causes of action, where motion successfully eliminated cause of action for trade libel, thereby "limiting discovery, reducing potential recoverable damages, and altering the settlement posture of the case"]; cf. Baral, supra, 1 Cal.5th at 392 [anti-SLAPP statute's "central" purpose is to screen out meritless claims "before the defendant is required to undergo the expense and intrusion of discovery"].) Nothing more was required.
We reject Beck's contention that the trial court's prevailing defendant determination is subject to de novo review. The court's determination that Yozura achieved a practical benefit was necessarily grounded in the factual context of the litigation, which that court was better equipped to assess than we are. Further, the parties disputed facts concerning the scope of the remaining litigation. Thus, unlike the cases on which Beck relies, this case does not present a question of statutory interpretation on undisputed facts. (See Roe v. Halbig (2018) 29 Cal.App.5th 286, 298; Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
Beck's reliance on Moran, supra, 135 Cal.App.4th 952 is misplaced. There, the defendants filed an anti-SLAPP motion seeking to strike all eight causes of action against them, including seven tort causes of action and one derivative cause of action for conspiracy. (Id. at 954-956.) The trial court granted the motion only with respect to the conspiracy cause of action. (Id. at 954.) The court denied the defendants' request for attorney fees under section 425.16, subdivision (c)(1), finding their success was so minimal that they could not be deemed to have prevailed. (Ibid.) On appeal from the denial of fees, our colleagues in Division Five affirmed, explaining: "Defendants sought to dismiss the entire complaint, and instead obtained only the most illusory victory. The factual allegations defendants faced were not changed when the cause of action for conspiracy was stricken, because that cause of action included no specific factual allegations, but instead incorporated the factual allegations made in the other causes of action. Further, as a legal matter, the cause of action for conspiracy added little or nothing to plaintiffs' case. . . . 'A conspiracy cannot be alleged as a tort separate from the underlying wrong it is organized to achieve.'" (Id. at 954-955.) Thus, the defendants achieved no practical benefit: "The possible recovery against defendants did not change. The factual allegations which defendants had to defend did not change. The work involved in trying the case did not change." (Id. at 955.) Here, in contrast, Yozura's success in striking the video allegations narrowed the factual allegations against him, reducing the work to be done in the litigation and narrowing Beck's potential remedies. Accordingly, we conclude the trial court acted within its discretion in determining Yozura was entitled to attorney fees as a prevailing defendant on his anti-SLAPP motion.
B. Amount of Fees
Beck contends the trial court erred in awarding the full amount of attorney fees Yozura requested, purportedly without considering his degree of success on his anti-SLAPP motion. Beck concedes that a contention of this nature typically would fail as a result of her failure to include in the appellate record a reporter's transcript or authorized substitute concerning the fee hearing. (See, e.g., Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229 (Rhule).) In arguing this omission is immaterial, Beck seizes upon the language in the fee order that the court "sees no practicable way to apportion fees on this motion" to argue that the court "'necessarily'" failed to consider Yozura's degree of success, obviating any need for a reporter's transcript. We disagree.
1. Principles
Although any practical success on an anti-SLAPP motion entitles the prevailing defendant to fees, it does not necessarily entitle the defendant to the full amount of fees incurred. To the extent that defense counsel's work on successful and unsuccessful portions of the motion did not overlap, the amount of fees should be reduced to account for any segregable hours of unsuccessful work. (See Mann, supra, 139 Cal.App.4th at 343.) Further, even where such hours overlap, "a defendant should not be entitled to obtain as a matter of right his or her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping." (Mann, at 344-345; see also id. at 344 ["a partially prevailing party is not necessarily entitled to all incurred fees even where the work on the successful and unsuccessful claims was overlapping" (italics added)].) "Instead, the court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate." (Id. at 345, italics added.) "This analysis includes factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion. The fees awarded to a defendant who was only partially successful on an anti-SLAPP motion should be commensurate with the extent to which the motion changed the nature and character of the lawsuit in a practical way. The court should also consider any other applicable relevant factors, such as the experience and abilities of the attorney and the novelty and difficulty of the issues, to adjust the lodestar amount as appropriate." (Ibid.; accord, Malin v. Singer (2013) 217 Cal.App.4th 1283, 1305.)
In the trial court, Beck did not argue that Yozura's fees should be reduced to account for any segregable hours of unsuccessful work, or that the billing statement he produced was insufficient to determine whether such a reduction was warranted. On appeal, Beck suggests for the first time that Yozura's evidence was insufficient, and that the court "could" have ordered Yozura to produce more detailed evidence. Beck forfeited any contention of error in this regard by failing to raise the issue in the trial court. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2021) Ch. 8-D ¶ 8:249 ["Appellants may be held to have waived a claim of error . . . by failure to take proper steps in the trial court to avoid or cure the error. [Citations.] [¶] . . . 'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider'" (italics omitted)].)
In Mann, the trial court denied the defendants' anti-SLAPP motion with respect to all four challenged causes of action. (Mann, supra, 139 Cal.App.4th at 334-335.) The Court of Appeal reversed the denial with respect to a cause of action for trade libel, and awarded the defendants costs on appeal. (Id. at 335-336.) On remand, a different trial judge granted the defendants' fee motion and awarded the defendants $57,000 in fees (approximately $7,000 lower than the sum requested), explaining: "'Defendants ultimately prevailed on [the motion to strike] plaintiffs' trade libel cause of action. Moreover, the Court of Appeal determined that defendants are the prevailing party given the Court of Appeal found that defendants are entitled to costs on appeal. As the prevailing party, defendants are entitled to an award of reasonable attorney fees and costs pursuant to [section] 425.16. . . . [¶] . . . [¶] Apportionment of attorney fees is improper given that the same facts, law, and damages were involved in all causes of action challenged in the [anti-SLAPP motion]. The Court in this ruling, however, awards a lesser sum of attorney fees to defendants. That lesser sum is reasonable and appropriate under the circumstances of this action.'" (Id. at 336-337.) The Court of Appeal held the trial court erred in failing to exercise its discretion to determine whether the fees should be reduced notwithstanding the overlapping nature of counsel's successful and unsuccessful work, explaining: "[T]he court should have considered the significance of the overall relief obtained by defendants in relation to the hours reasonably expended on the litigation and whether the expenditure of counsel's time was reasonable in relation to the success achieved. . . . [T]he trial court's statement declining to apportion the fees necessarily reflects that the court did not consider defendants' relative lack of success in determining the appropriate amount of fees. Moreover, a reduction of approximately $7,000 to account for defendants' lack of complete success was clearly insufficient." (Id. at 345.) Because the appellate court had greater familiarity with the underlying anti-SLAPP proceedings than the trial judge who had decided the fee motion, the appellate court exercised its own discretion on appeal, reducing the fee award to approximately $32,000 to account for defendants' lack of success in challenging two causes of action that "were not even governed by the anti-SLAPP statute" and a third cause of action that was supported by "facts showing a probability of prevailing." (Id. at 346.)
2. Analysis
We conclude the trial court acted within its discretion in awarding Yozura the full amount of attorney fees he requested. The record shows the court considered Yozura's degree of success as required under Mann. In their briefs to the court, both parties argued the Mann degree-of-success factors; for instance, they disputed whether and to what extent Yozura's "litigation posture" had been advanced by the motion. (Mann, supra, 139 Cal.App.4th at 345.) The court's order acknowledged the parties' dispute whether fees should be denied or reduced under Mann, and quoted Mann's direction that even where counsel's successful and unsuccessful work overlapped, the amount of fees should be reduced to account for partial success "'if appropriate.'" (Ibid.) Implicitly finding such a reduction inappropriate, the court found: (1) Yozura's motion was successful because the court struck "the basis for liability giving rise to the anti-SLAPP motion"; (2) the motion was "complex" and required significant skill; and (3) Yozura's counsel's hourly rates were reasonable. (See Mann, supra, 139 Cal.App.4th at 345 [court should consider "the extent to which the defendant's litigation posture was advanced by the motion," as well as "the experience and abilities of the attorney and the novelty and difficulty of the issues"].) Beck was not entitled to a more detailed discussion of the Mann factors, particularly because she did not request a statement of decision. (See id. at 342, fn. 6 ["a trial court is not required to issue a statement of decision with regard to a fee award, unless a party timely requests one"].)
Even had the record not shown that the court considered Yozura's degree of success, we would presume the court did so at the hearing, in light of Beck's failure to provide a reporter's transcript or authorized substitute. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 ["'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court'"]; Rhule, supra, 8 Cal.App.5th at 1128-1229 & fn. 5 [presuming fee order was correct, where appellant's failure to provide record of fee hearing deprived appellate court of knowledge concerning trial court's reasoning, notwithstanding court's issuance of "succinct" written ruling].) In arguing a reporter's transcript is unnecessary, Beck misreads Mann. Contrary to her suggestion, Mann did not purport to rule that in every case in which a trial court declines to reduce an anti-SLAPP fee award to account for the defendant's partial success, the court's statement to that effect in its order necessarily establishes reversible error. On the contrary, Mann contemplated that in some cases, a partially successful defendant would be entitled to recover his or her full fees. (See Mann, supra, 139 Cal.App.4th at 345 ["if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate" (italics added)].) The court's observation that a partially prevailing party is not "necessarily" entitled to full fees "as a matter of right" is a far cry from holding such fees may never be awarded. (Id. at 344.) Moreover, Mann's determination that the trial court order reflected its failure to consider the defendants' degree of success was necessarily based on the facts in that case. (Id. at 345.) Here, the facts are materially different; the parties expressly addressed the Mann degree-of-success factors in their briefs to the trial court, and the court expressly addressed these arguments in its order (and presumably at the hearing). In short, the court considered Yozura's degree of success as required under Mann.
The court acted within its discretion in determining Yozura's degree of success warranted a full fee award. As discussed above, Yozura's success in striking the video allegations narrowed the factual allegations against him, reducing the work to be done in discovery and motion practice and narrowing Beck's potential remedies. (See Mann, supra, 139 Cal.App.4th at 345 [factors to be considered include "whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion"].) Further, nothing in the record before the court suggested that Beck possessed admissible evidence to support her remaining allegations that Yozura personally stole items from and set fire to the Property. On the contrary, despite having an incentive to produce such evidence in order to demonstrate a probability of success on the merits, she failed to do so. (See Morrow v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th at 1435 [to demonstrate probability of success at second step of anti-SLAPP analysis, plaintiff "'must support its claims with admissible evidence'"].) Moreover, in the absence of a record of the fee hearing, we presume that any offer of proof or other representation Beck made at the hearing supported Yozura's argument that the remaining claims could be resolved by a simple dispositive motion (if not settlement). (See Jameson v. Desta, supra, 5 Cal.5th at 609 [in absence of adequate record, "'"[i]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented'""].) On this record, we conclude the court reasonably could have determined that as a practical matter, Yozura's anti-SLAPP motion had all but eliminated the challenged causes of action, warranting a full fee award. (See Mann, at 345 [fees should be "commensurate with the extent to which the motion changed the nature and character of the lawsuit in a practical way"].)
To the extent Beck's declaration reiterated the FAC's allegations that Yozura engaged in arson, conversion, and other wrongful conduct, it lacked foundation. (See Evid. Code, § 702, subd. (a) ["the testimony of a [non-expert] witness concerning a particular matter is inadmissible unless he [or she] has personal knowledge of the matter"].)
DISPOSITION
The order is affirmed. Yozura is awarded his costs on appeal.
We concur: WILLHITE, J., CURREY, J.