Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV051303
ROBIE, J.
John F. Mounier, Jr., appeals from the trial court’s denial of his special motion to strike the amended and supplemental complaint filed by plaintiff Scott D. Mathews and resulting attorney fee award for $9,500. We conclude Mounier failed to make a prima facie showing the amended and supplemental complaint was based on protected activities and failed to carry his burden to show abuse of discretion in the attorney fee award. We also decline to review the nonappealable order overruling Mounier’s demurrer.
These lawsuits are commonly referred to as strategic lawsuits against public participation or SLAPP lawsuits. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 71-72.) Code of Civil Procedure section 425.16 is commonly referred to as the anti-SLAPP statute. (City of Cotati, at p. 72.) All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
To avoid confusion, we refer to plaintiff and other members of the Mathews family by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
As is relevant here, Scott alleged in his “derivative capacity” the following five causes of action against Mounier: “negligence/attorney malpractice,” breach of fiduciary duty, breach of written contract and the implied covenant of good faith and fair dealing, unjust enrichment, and unlawful, unfair, and/or fraudulent business practices.
In his amended and supplemental complaint, Scott provided the following allegations to support those causes of action:
In January 1980, the Mathews Development and Construction Investment Group No. 1 (the Investment Group) was formed. The general partner was and is Mathews Development & Construction, Inc., a corporation wholly owned by Gene Mathews. The limited partners at the time were Scott, Deborah Mathews, Lisa Mathews Wiggins, Kristine Kilkenny and Gene’s ex wife. The limited partners now are Scott, Deborah, and Gene.
In 1981, Scott filed Yolo County case No. 65136. The Investment Group filed a cross-complaint against Scott for an accounting, declaratory relief, and injunctive relief regarding properties known as Quail Ridge. Deborah also filed a cross-complaint seeking the identical relief. “These various lawsuits” were eventually consolidated into coordinated proceedings.
In 1990, Mounier entered into a written agreement with the Investment Group to provide legal services “in those various lawsuits which the parties herein filed with respect to the Investment Group, including Case No. 65136.”
In April 1994, the trial court entered an interlocutory ruling on the cross-complaints in case No. 65136, ruling that Scott was a constructive trustee to the Investment Group with respect to the Quail Ridge properties and ordered him to return those properties still in his possession to the Investment Group and provide an accounting. Scott complied and provided Mounier a detailed accounting with respect to the Quail Ridge properties. Thereafter, neither the Investment Group nor Deborah took any further action on their cross-complaints and “therefore, no final accounting with respect to the Quail Ridge properties was ever completed or even proposed.”
In 1995, Mounier was disqualified as the Investment Group’s attorney due to a conflict of interest. He continued to act as attorney of record for Gene, Deborah, and Mathews Development & Construction.
In 1995, the law firm of Rader Rader Goulart & Gray and its partners entered into a written agreement with the Investment Group to provide legal services.
Despite the disqualification, Mounier “by way of conspiracy between” Gene, Mathews Development & Construction, and Deborah continued to provide legal advice to the Investment Group’s attorney of record and Gene.
In November 2000, an interlocutory judgment was entered in the coordinated actions to stay all actions pertaining to the Investment Group pending the outcome of case No. 65136, which required completion of the accounting. Scott repeatedly asked Gene, Mathews Development & Construction, Deborah, and the Investment Group to provide an accounting. They, along with the attorneys, failed to take any action with respect to the accounting, including failing to conduct discovery regarding the accounting issues, failing to bring a motion to set the accounting issues for trial, and otherwise failing to take action to bring the cross-complaint to conclusion and final judgment.
In November 2005, Scott filed a motion to dismiss the cross-complaints or specially set the cross-complaints for trial, alleging that Gene, the Investment Group, Deborah, and the attorneys “negligently or intentionally failed to prosecute [the cross-complaint] to conclusion and final judgment.” The trial court granted the motion to dismiss. “Consequently, the Investment Group, which had incurred at least hundreds of thousands of dollars in legal fees and costs in prosecuting its [c]ross-[c]omplaint, received no benefit from the [c]ross-[c]omplaint” and was therefore “injured.”
The Investment Group’s general partner and none of its other limited partners would bring an action on behalf of the Investment Group, so Scott filed the amended and supplemental complaint “on behalf of the Investment Group in his derivative capacity as a limited partner.”
Mounier brought the special motion to strike the amended and supplemental complaint that was denied by the trial court. In addition, the trial court awarded Scott $9,500 in attorney fees based on Scott’s argument that the filing of the motion to strike was frivolous because it was virtually identical to a previous motion to strike Scott’s original complaint that was also denied.
Mounier also demurred to the amended and supplemental complaint, which the court overruled it its entirety.
In this court, Mounier challenges the trial court’s rulings denying his special motion to strike, awarding attorney fees, and overruling his demurrer.
DISCUSSION
I
The Court Properly Denied Mounier’s Special Motion To Strike The Amended And Supplemental Complaint
Mounier claims the trial court erred in denying his special motion to strike Scott’s amended and supplemental complaint because the allegations against him were “grounded in [his] legal representation of his clients . . . in litigation,” which is the “‘classic example’” of “protected petitioning activity” and free speech. We disagree.
The Legislature enacted Code of Civil Procedure section 425.16 to address “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) Under this section, 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,” is 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.” (Id., subd. (b)(1).) On appeal, “[w]e review the trial court’s rulings on an anti-SLAPP motion de novo.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Here, Mounier did not meet his burden of demonstrating that the amended and supplemental complaint arose from his exercise of his petition or free speech rights. “A legal malpractice action alleges the client’s attorney failed to competently represent the client’s interests. Legal malpractice is not an activity protected under the anti-SLAPP statute.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1535.) “In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so.” (Id. at p. 1540.) Here, the crux of all the causes of action against Mounier alleged the following acts of incompetent representation: failure to conduct discovery regarding the accounting issues, failure to bring a motion to specially set the accounting issues for trial, and failure to prosecute the Investment Group’s cross-complaint to conclusion. These are exactly the sort of malpractice claims that fall outside the ambit of the anti-SLAPP protections. For this reason, we conclude that Scott’s causes of action against Mounier were not based on, and do not arise from, an exercise of the constitutional rights of petition or free speech as enumerated in section 425.16, subdivision (e). Consequently, the burden never shifted to Scott to demonstrate a probability of prevailing on the merits against Mounier.
II
The Trial Court Did Not Abuse Its Discretion In Awarding Attorney Fees
The trial court awarded Scott attorney fees, finding the special motion to strike frivolous because it was made on the same unmeritorious grounds as a previous special motion to strike Scott’s original complaint. Under section 425.16, subdivision (c), a plaintiff who successfully opposes a special motion to strike may be awarded fees on a finding that the motion to strike was frivolous or was brought solely to cause unnecessary delay. “We review the fee award for abuse of discretion.” (Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 368.) Other than his underlying argument that the special motion to strike should have been granted, he makes no argument that the record does not support the conclusion that the motion was frivolous. He therefore has not carried his burden to show abuse of discretion.
III
Mounier Cannot Appeal From The Order Overruling His Demurrer
In the body of his brief, Mounier purports to appeal from the order overruling his demurrer. “[A]n order overruling a demurrer is not directly appealable but may be reviewed on an appeal from the final judgment.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912-913.) “‘Appellate courts simply do not have the time or resources to police law and motion rulings on the pleadings through the mandamus power and, absent unusual circumstances, decline to do so.’” (Curry v. Superior Court (1993) 20 Cal.App.4th 180, 183.) The order overruling the demurrer here is not appealable and we decline to exercise our mandamus power to reach the issues.
We are aware that Mounier’s demurrer was in part based on what he contends was Scott’s failure to comply with section 1714.10 [which imposes certain prefiling requirements on plaintiffs when they allege a “cause of action” against an attorney for a civil conspiracy] and that subdivision (d) of that section makes an order made under certain subdivisions of that statute appealable. In this case, however, Mounier makes no attempt to show that the ruling overruling the demurrer here was appealable, other than simply quoting subdivision (d). In any event, Scott never alleged a cause of action for conspiracy.
DISPSOSITION
The orders denying the special motion to strike and awarding Scott attorney fees are affirmed. Scott shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.