Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC363093 No. BC363093 Theresa Sanchez-Gordon, Judge.
Law Offices of Lenore Albert and Lenore Albert for Plaintiff and Appellant.
Robie & Matthai, James R. Robie, Kyle Kveton and Natalie A. Kouyoumdjian for Defendants and Respondents Arent Fox, LLP, Jerrold Abeles and Amy Borlund.
Frank Bacon for Defendant and Respondent Chandler Lodge Foundation, Inc.
ZELON, J.
Norval Crutcher appeals the dismissal of his malicious prosecution action against the Chandler Lodge Foundation, Inc. and its counsel under Code of Civil Procedure section 425.16. We affirm.
All further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Crutcher sued Arent Fox, two of its individual attorneys, and the Chandler Lodge Foundation for malicious prosecution and abuse of process arising out of the conduct of an underlying lawsuit. Arent Fox and the attorneys filed a special motion pursuant to section 425.16 to strike the operative complaint as a strategic lawsuit against public participation (SLAPP). The Chandler Lodge Foundation joined in the motion to strike. The hearing on the special motion was set for June 6, 2007.
On May 23, 2007, Crutcher made an ex parte application for a continuance of the hearing date for the motion and a corresponding change in the date his opposition was due to be filed. The trial court denied the application.
Crutcher’s opposition to the special motion to strike was not filed in a timely manner. Crutcher’s counsel stated on the record at the June 6, 2007 hearing that Crutcher’s opposition was sent by overnight mail to the court late, on May 31, 2007. Crutcher’s counsel explained that a family emergency caused the delay and asked the court to consider the papers anyway. The trial court said, “I want you to serve a courtesy copy to the Court today. I’m going to take this matter under submission. And I will give my ruling by the 20th of June. You can call in. There’s no appearance needed. You’ve made your record. I’ll read your opposition, and you’ve heard the Court’s—so far, the Court’s reasoning as to the ruling. You can call in on the 20th before 4:00, and the Court will give you the final decision.” The court then changed the date to June 19 to accommodate other pending motions.
On June 19, 2007, the trial court issued a minute order granting the special motion to strike and ordering the case dismissed. The court subsequently awarded the defendants fees and costs associated with the special motion to strike. Crutcher appeals.
We previously denied Chandler Lodge Foundation’s motion for a summary dismissal of the appeal. Chandler Lodge Foundation has requested in its respondent’s brief that we grant it leave to re-submit its dismissal motion. We decline to grant this request because we address the appeal on its merits to the extent possible on the record provided.
I. Denial of the Continuance
Crutcher argues that the trial court abused its discretion when it denied his request for a continuance because his counsel, Lenore Albert, had informed opposing counsel and the court that she would be unavailable for the month of May 2007 due to her mother’s severe illness. There was no abuse of discretion here. The ex parte application was defective, because Crutcher did not demonstrate that proper notice of the ex parte application had been given. California Rules of Court, rule 3.1203(a) requires notice of an ex parte application to be given no later than 10:00 a.m. the day before the application will be made. The proof of service attached to the notice states merely that “Requests for Dismissal” were served by fax before 11:00 a.m.: the wrong document, served too late. Moreover, none of the fax transmission sheets attached to the motion as evidence of faxed notice bear a time prior to 10:26 a.m. on May 22, 2007. Although the California Rules of Court provide for shorter notice under exceptional circumstances (Cal. Rules of Court, rule 3.1204(c)), Crutcher made no attempt to demonstrate that exceptional circumstances existed to justify the shorter notice.
The trial court also did not abuse its discretion in denying the ex parte application because even if Albert was unavailable, Crutcher had more than one attorney representing him in this matter: New counsel for Crutcher, Brian Hannemann, associated in on April 9, 2007. As of late April or early May 2007, Hannemann was signing motions on behalf of Crutcher. Moreover, those motions were being set for hearing in May, during the time that Albert declared that she was unavailable. The trial court could have concluded that no continuance was warranted in light of the existence of a second attorney who could have prepared the opposition to the special motion to strike. This case is therefore unlike the case on which Crutcher relies, Lerma v. County of Orange (2004) 120 Cal.App.4th 709, because in Lerma the unavailable counsel was the only attorney representing the party desirous of the continuance. In Lerma and unlike here, the denial of a continuance “would have had the effect of requiring an attorney who was hospitalized with a life-threatening condition to be sifting through evidence, contacting affiants and drafting documents while lying in his hospital bed, utterly without knowledge of the requirement that he so proceed, in order to avoid losing his clients’ case on summary judgment when he emerged from the hospital.” (Id. at p. 716.) There was no abuse of discretion.
This court is aware that on June 25, 2007, Crutcher filed a document in the trial court disassociating Hannemann from the case and that in an attached declaration Hannemann claimed that he had become “disassociated as counsel” on April 29, 2007, except for making a special court appearance for Crutcher on May 7. Not only is the veracity of this inexplicably belated document suspect in light of the fact that the discovery motions Hannemann prepared for Crutcher were set for hearing during the time when Albert was by her own declaration unavailable, but more importantly, this information was not before the court at the time it ruled on the ex parte continuance request. At the time of the ex parte application, Crutcher had two attorneys of record, only one of whom was claiming unavailability, and a third attorney who appeared to present the ex parte application. The trial court could easily have concluded that Crutcher had counsel available to prepare the opposition to the special motion to strike.
II. Arguments Concerning Late-Filed Opposition to the Special Motion to Strike
Crutcher argues that the trial court lacked the power to reject his opposition papers because they complied with “Rule 201,” presumably California Rules of Court, former rule 201. Next, he claims that the clerk did not have the power to reject the filing of untimely papers, and that therefore “neither the clerk nor the court had the power to reject the filing of plaintiff’s late opposition and this rejection of filing was an error which led to the court’s eventual error in granting the defendant’s motion on the basis that no opposition was filed.” Crutcher then claims that there was no evidence that the papers failed to conform with (former) California Rules of Court, rule 201; and that the dismissal of the action must be vacated because the court abused its discretion in refusing to consider the opposition papers.
These arguments are riddled with misstatements of the record and the law, most of which need not be addressed to dispose of Crutcher’s contentions. We have reviewed the record and note that nothing in the record indicates that the trial court refused to consider Crutcher’s opposition papers. At the hearing on the special motion to strike, the trial court initially stated that it was prepared to grant the motion to strike, but when Crutcher’s counsel asked the court to continue the hearing and to consider the late-filed opposition, the court agreed to do so, saying, “I’ll read your opposition.” The court instructed counsel to “serve a courtesy copy to the Court today,” and the court said that it would take the matter under submission. The minute order from the hearing is in agreement: it states that the court took the matter under submission and that counsel for the plaintiff was ordered “to submit opposition documents by 4:00 p.m. this date.”
We cannot determine from the record whether counsel took the court up on the opportunity to submit the opposition for consideration. There is no file-stamped copy in the record that would demonstrate that Crutcher submitted the opposition documents that day. Counsel did move to augment the record with documents she claimed were the ones submitted to the trial court, but the documents bear no stamps of any kind. We have taken judicial notice of the existence of these documents.
We are extremely dismayed at the lack of candor displayed by Crutcher’s counsel, Lenore Albert, in presenting arguments that are belied by the record. In the opening brief, counsel for Crutcher quoted the initial comments of the trial court at the hearing, when the court indicated its intent to strike the complaint, but failed to disclose to this court that upon counsel’s request the trial court then proceeded to take the matter under submission for the sole purpose of considering Crutcher’s tardy opposition. We are dismayed by Albert’s blatant factual omission, which was compounded by repeating it in the reply brief despite respondents’ having pointed out the actual factual record in their briefing. Business and Professions Code section 6068, subdivision (d) establishes that it is an attorney’s duty “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (See also Rules Prof. Conduct, rule 5-200.) “The concealment of material information within the attorney’s knowledge as effectively misleads a judge as does an overtly false statement.” (Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491, 499.) Crutcher’s counsel has clearly disregarded her duty in her briefing to this court.
III. Section 473
Crutcher appears to simultaneously contend that the trial court refused to permit counsel to seek relief from her late filing under section 473 and that the trial court denied her relief under section 473. First, Crutcher contends in his subheading title that the trial court “Refused To Allow The Plaintiff’s Counsel To Seek Relief Under CCP Section 473b,” then he asserts that counsel asked the court to “take some time and continue the hearing so that the court could read and consider the papers on the ground that the late attempt to file was attorney neglect or mistake under CCP §473b. [Citation.] The court refused to do so without proof of a conformed file stamped copy from May 31, 2007.” Crutcher claims this was an abuse of discretion.
The record is clear that the trial court did nothing of the sort and that counsel has misrepresented what transpired at the hearing. Counsel asked the court to save her from having to file a motion under Code of Civil Procedure section 473, subdivision (b): “... I’m wondering if maybe just in terms of justice and I don’t have to file a formal 473(b) motion to request that maybe the Court could continue out this hearing and consider these papers, especially when opposing counsel did submit a reply to the papers, so then it’s fully briefed and we can actually get to the merits without having to bludgeon the Court with a whole new set of papers.” The court agreed to review the opposition without Crutcher’s counsel having to file such a motion.
Moreover, the court said nothing at the hearing about requiring “proof of a conformed file stamped copy from May 31, 2007,” and counsel provides no citation to the record for where this supposed condition can be found in the record. The court simply asked at the hearing for a courtesy copy of the papers to be delivered to it the same day as the hearing, and its minute order, as quoted above, states that “Plaintiff’s counsel is to submit opposition documents by 4:00 p.m. this date.” The only reference to a conformed copy in the reporter’s transcript from that hearing was that defense counsel requested that the court direct Crutcher’s counsel to serve them with a conformed copy of whatever she gave to the court that day so that they could be certain of what was in the record. The court agreed. Counsel has again misstated the record in flagrant and egregious violation of her duty to the court. (Bus. & Prof. Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5-200.)
IV. Ruling on the Special Motion to Strike
Crutcher argues that the special motion to strike should not have been granted because the defendants did not, and could not, meet their burden of showing that the causes of action alleged arose from protected activity. Alternatively, he contends that he provided evidence meeting his burden of showing a probability of success on his claims.
Section 425.16 provides that “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16. subd. (b)(1).) For purposes of the statute, an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (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; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (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).)
“Section 425.16 posits... a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043). If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); see generally Equilon [Enterprises v. Consumer Cause, Inc. (2002)] 29 Cal.4th [53,] 67.)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) We review the trial court’s ruling de novo. (Holbrook v. Santa Monica (2006) 144 Cal.App.4th 1242, 1251.)
A. Constitutionally Protected Activity
Here, the challenged causes of action arose from protected activity. The first amended complaint asserted that the two causes of action for malicious prosecution arose from the institution of a civil action (via cross-complaint) and its unwarranted continuation without probable cause and with knowledge of its falsity, and from the defendants’ alleged failure to petition the court under section 425.15 prior to filing the cross-complaint for permission to allege a cause of action against a director or officer of a nonprofit organization. The final cause of action, for abuse of process, was based on allegations that the defendants “intentionally used this legal procedure to harass and intimidate plaintiff Norval D. Crutcher, his family, including plaintiff Samuel C. Crutcher, his witnesses and his friends which was an improper purpose that procedure was not designed to achieve.” These claims are quite obviously based on the filing and conduct of a lawsuit and are constitutionally protected activities as defined in section 425.16, subdivision (e). (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057 (Rusheen).)
Crutcher argues that the activity here was not constitutionally protected because bringing the lawsuit was “illegal” in light of the failure to comply with section 425.15 prior to filing the cross-complaint. He relies on Flatley v. Mauro (2006) 39 Cal.4th 299, in which the California Supreme Court concluded that a lawsuit arose from alleged acts of criminal extortion, that such acts were not constitutionally protected, and that the lawsuit therefore did not arise from constitutionally protected activity. The illegal conduct in Flatley v. Mauro differs greatly from the alleged illegality here, and that decision does not support Crutcher’s argument that purportedly violating a rule of civil procedure concerning the filing of a complaint somehow negates the constitutional protections surrounding the filing, funding, and prosecution of a civil action for the purposes of section 425.16, subdivision (e). (See Rusheen, supra, 37 Cal.4th at p. 1056 [“any act” as stated in section 425.16 includes “communicative conduct such as the filing, funding, and prosecution of a civil action”].)
Crutcher next argues that the conduct here was actually extortion: “the complaint alleges that the defendants sued Mr. Crutcher’s son in an attempt to extort him into dropping his lawsuit.” This is of course an allegation that the defendants filed a lawsuit for an improper purpose. His remaining arguments concern defendants’ alleged litigation misconduct—the failure to follow the procedural requirements of section 425.15, discovery and witness misconduct, accusing Crutcher of stealing money, intimidating witnesses at trial—all of which are at their core complaints about how the lawsuit was prosecuted. These allegations clearly concern protected activity under section 425.16, subdivision (e). (Rusheen, supra, 37 Cal.4th at p. 1056; Navellier v. Sletten, supra, 29 Cal.4th at p. 90; Navarro v. IHOP Properties (2005) 134 Cal.App.4th 834, 841-842.)
B. Probability of Success
Once the moving party demonstrates that a cause of action is based on constitutionally protected activity, the plaintiff must then demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) Admissible evidence in support of the plaintiff’s prima facie case must be presented on each element of the challenged causes of action. (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 613-614; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) Here, Crutcher did not include the documents he submitted to the trial court in the appellant’s appendix. He later filed a separate motion to augment the record to include papers that his counsel claimed were submitted to the trial court, but the documents submitted bore no file stamps or other indicia that they were ever filed or lodged with the trial court. We have taken judicial notice of the existence of these documents but have denied the motion to augment. (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1 [denying motion to augment when the request fails to demonstrate that the documents sought to be added to the record were actually lodged or filed with the trial court]; Cal. Rules of Court, rule 8.155(a) [record may be augmented to include “[a]ny document filed or lodged in the case in superior court” or a certified transcript or agreed or settled statement or oral proceedings not designated as part of the record]; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
Crutcher has failed to provide an adequate factual record from which we could determine whether he demonstrated a probability of prevailing on his claim. The party seeking to challenge an order on appeal has the burden of providing an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Where a party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. (Ibid.; Rancho Santa Fe Association v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) Because Crutcher has not provided evidence from which we could find that he made a prima facie case that there was a probability that he would prevail on any of his claims, there is no basis in the record as it has come to this court on appeal for us to suspect, let alone conclude, that the trial court erred when it granted the special motion to strike.
At oral argument, Albert attempted to explain the basis for her confidence that the documents she provided to this court were in fact the documents that were submitted to the trial court in conjunction with the special motion to strike. We have reviewed those documents and conclude that even if we were to consider their contents rather than merely taking judicial notice of their existence, Crutcher nonetheless failed to demonstrate that his complaint was supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.)
V. Leave to Amend
Crutcher requests leave to amend the complaint if this court determines that the special motion to strike was meritorious. Section 425.16 makes no provision for amending the complaint once the court finds that it is a SLAPP action. (§ 425.16; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (Simmons).) As the court explained in Simmons, permitting leave to amend after a special motion to strike is granted would “frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits.” (Simmons, at p. 1074.)
VI. Attorney Fees
The defendants were awarded their fees and costs in connection with the special motion to strike: Arent Fox was awarded $17,350, and Chandler Lodge Foundation was awarded $4,980. Crutcher contends on appeal that the trial court’s award of attorney fees and costs was unreasonable. Specifically, he claims that the discovery conducted before the special motion to strike was unnecessary and unreasonable; that the inclusion of any award for one Arent Fox attorney’s work was unreasonable because the attorney’s name did not appear on any correspondence or documents filed; that counsel’s work for the Chandler Lodge Foundation was too minimal to justify the fees awarded; and that the special motion to strike was an “unfair, bad faith tactic” designed to harass and delay, so the motion should have been denied and Crutcher should have been permitted to seek attorney fees and costs.
We reject this argument. There is no indication in the record that Crutcher voiced any opposition below to the defendants’ motion for fees and costs, and his brief is entirely inadequate to state a cognizable argument on appeal that the fees awarded were excessive for the work actually performed. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the claim on appeal. ‘“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]’” [Citation.] “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. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.... [Citation.]”’ [Citation.]” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Association (2008) 163 Cal.App.4th 550, 564.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.